Intellectual Property Colloquium Series: Canada and the Three-Step Test: A Step in Which Direction?

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. …