Canada and the three-step test: a step in which direction?

• Author: Gendreau, Ysolde
• Position: Intellectual Property Colloquium Series

It is a real pleasure and honor to be here with you and to have an opportunity to talk about copyright reform in Canada. In particular, since this reform process is taking place with a particular international perspective in mind, it should provide an opportunity to discuss the relationship between national law and international norms in the field of copyright law. At the same time, I should like to give some sort of introduction to Canadian copyright law because, even though we are part of the same copyright law family, there are some differences between our two countries. These distinctions mean that some of the issues that will be raised today may be treated somewhat differently in U.S. law.

As you know, of course, copyright law was born with technology and initially started in order to regulate printing in England. This year, we are celebrating the 300th anniversary of the first Copyright Act in the world, the Statute of Anne, which really is the mother of all copyright legislations, particularly in the common law, English-speaking world. And because it is the original reference in copyright law, some of the features of the Statute of Anne have continued in both U.S. copyright law and in what I call Commonwealth copyright law, that is, copyright law derived from England outside the United States. The distinction between copyright law derived from the United States and other Commonwealth states occurred because the United States gained independence much earlier than the other British colonies.

The U.S. law that first developed, however, retained some features of the Statute of Anne. For instance, if one looks at the term of protection that existed here in the United States before 1976, it was a term of protection that depended upon registration--it initially lasted for twenty-eight years and was renewable for a second twenty-eight year term. Such a mechanism is a direct descendent of the Statute of Anne where the term ran for fourteen years from registration, with an additional fourteen year period.

A shift took place in England. Perhaps because it is part of Europe, England has been subject to some continental influences as, for instance, with respect to the term of protection. To wit, in 1842, the old system of a set term renewable for a second set term was replaced by a term of protection of life plus seven years. Thus, in England, a term of protection based on the author's life was introduced already in 1842.

The 19th century in England witnessed many other kinds of evolutions: copyright law expanded because people realized that it was not just about printing, but also about other forms of artistic expressions. Moreover, because of its role as a colonial power, English copyright laws were applied throughout the British Empire. This dominance culminated in 1911 with the Imperial Copyright Act, (1) which was similar to a restatement of all previous copyright legislation into one act. This Act was made to be applicable to all the then colonies of England that could choose either to adopt the 1911 Act "as is"--which is, for instance, what Australia did in 1912--or to implement their own copyright act that was nevertheless to be in line with the Imperial Act. This process coincided also with the slow coming-of-age of the colonies of the British Empire.

The Canadian Parliament decided to adopt its own statute, and did so in 1921. (2) The time between the English law and Canada's decision to adopt its own statute is partly due to the First World War. But the Canadian legislation is a rephrasing to a certain extent of the 1911 British Act. Therefore, this 1921 Act--which is still today, in a certain way, the basis of our current Copyright Act (3)--reflected 1921, if not 1911 technology.

After the Second World War, many countries started to revise their copyright legislation. The process that started in the 1950s in Canada led to a great number of reports about what should be done to modernize the Copyright Act, studies upon studies with no real action taking place. (4) The situation became more serious in the 1980s with the advent of computer programs, which had become a particularly pressing issue. (5)

By then, of course, many other technological issues had also developed. The agenda was becoming so large that the Canadian government considered that it could not overhaul the Copyright Act with just one statute. Instead, it wanted to go through the process in phases: Phase I would deal with the more pressing issues, like computer programs, and some other issues that had to be tinkered with, (6) and the rest would be taken care of a few years later with a Phase II.

A "few years" was actually ten years later. Phase II (7) was particularly known for updating exceptions in copyright law and for introducing neighboring rights and a private copying regime. 1997 was also a time when another issue had become apparent: the Internet. The government then decided it did not want to deal with digital issues because it was on the verge of getting a new act. Therefore, it decided to push digital issues onto a next phase. And, the next phase is the process in which we are now.

Actually, the present process started in 2005 when the first bill was tabled to take care of Internet issues. (8) It failed in particular because it was put forth by a minority government that failed soon after. The bill thus died on the order paper. Another bill was introduced three years later by the government that had come into power but which was also a minority government. (9) It failed because it died on the order paper too. And now we have in June 2010 Bill C-32, which is the text that is the basis of my talk today. (10)

What I have been explaining up to now are purely national developments, but, of course, they are only one part of the equation. There are international pressures as well on the updating of copyright law. Perhaps it might be worth mentioning that, up until 1931, Canada's presence on the international scene was achieved as a Dominion of the British Empire through England. Canada did not have its own seat at international forums, since England was speaking for herself and for her colonies. The situation changed in 1931 when Canada became allowed to have its own independent voice on the international stage, but it can still be said that it has been part of the international scene through England before then. This means, in particular, that it has been part of the main international convention on copyright law since 1886, the year of the inception of the Berne Convention.

The Berne Convention has been updated since 1886, again to reflect technological changes and developments in the thinking of copyright law. Its latest version has been the 1971 Paris Act. Up until 1971, international relations in the area of copyright law were essentially governed by the Berne Convention, but other agreements have taken over since then because of the rise of the developing world. As more and more countries became independent and took their seat in the United Nations, they could also become members of such international conventions. That phenomenon has led to a shift in the balance of power on the international copyright scene. Already in 1971 because of the presence of the developing world, the drafters of the Paris Act of the Convention could very well see that it was becoming increasingly difficult to reach an international consensus and they feared, quite rightly, that this 1971 Act was pretty much the last one that would be achieved within the Berne context itself.

Other treaties on copyright law or neighboring rights, which are other issues dealing with related aspects of copyright law, also exist; but, more specifically, the inability of the Berne Convention to continue to adapt has meant that the forum for change has shifted onto the GATT Agreement.

The GATT Agreement, a general trade agreement as its name implies, included intellectual property in its Uruguay round of negotiations that started in 1987 and which has led to the World Trade Organization (WTO) Agreement in 1994. This WTO Agreement includes the...