“Canada consents to enter Copyright Convention.”2 These six words, sent by Canada’s Prime Minister in reply to the British government’s inquiries as to the willingness of the colonial governments to enter the Berne Convention, masked domestic tension that surrounded the issue of copyright in Canada. Canada would follow Britain into the Berne Convention but Canada, as a British dominion and, eventually, a middle power, would have a very different story from other, more familiar, copyright histories. Canada’s path crossed hidden fault lines that would later appear in the political map of international copyright.

Current mappings of the politics of international copyright – alignments that classify the various copyright interest groups – tend to mask the tensions within these categories. Such categories and classifications have a powerful ability to mask tensions, to organize, to mobilize, and to shape the history of copyright.

In this paper I will make three arguments, drawing on the historical experience of Canada with the Berne Convention between 1886, when the Berne Convention was founded, and 1971, its last revision. First, Canada, though aligned with the most powerful countries on issues of international copyright, has a unique and important history with international copyright that is very different from the histories of the major powers. Second, for many middle powers, the Berne Convention was a symbol of

80progress in international law, and a hallmark of a civilized country. Canada has aligned with the major powers on issues of international copyright. Though this alignment has not always comfortable, it stems in part from a desire to be associated with ideas of progress and civilization, and to be aligned with one’s largest trading partners. Third, I ask, what contribution do middle powers make to the international copyright system today?

I

CANADA’S COPYRIGHT HISTORY IS DIFFERENT FROM THOSE OF THE MAJOR POWERS

Canada’s historical experience with the Berne Convention has been very different from the experiences of the major powers. Like many of today’s middle powers, Canada signed on to the international copyright treaty in 1886 not as an independent country but as a British colony. Canada had no foreign affairs institutions or diplomats and was not directly represented at the founding meetings of the convention.

Economically, unlike France or Great Britain, nineteenth-century Canada, like many other colonies, stood to gain little from the new international regime; Canada’s copyright industry was almost non-existent.

In 1886 just 574 copyrights were registered in Canada, and, since Canadian authors had almost no international recognition, few Canadian authors would benefit from the internationally expanded copyright protection that would come about through Canada’s participation in the Berne Convention.3

Competitively, the Berne Convention put Canada at a disadvantage. Canadian printing and publishing was in competition with the printers and publishers of the United States – a country that did not yet recognize international copyright. American publishers could reprint the works of foreign authors without permission and without any legal requirement to pay royalties to foreign authors. Canadian publishers, under the Berne Convention, would not have this freedom.

As a result, the Canadian printing and publishing industry suffered, affecting authors as well.4 Although the industry was expanding – by 1881 the number of people employed in the industry had almost doubled since 1771, and over the next ten years

81employment in the industry would grow by 30%5 – it was also seen to be struggling. Novelist and journalist William Kirby argued, in an 1885 letter to Canadian Prime Minister Macdonald, that his concern was “not primarily to secure copyright to Canadian authors – they have plenty of that,” but to “give our publishing industries such fair play and protections as they might obtain or the trade will become extinct in Canada.”6

Nineteenth-century Canada’s strides towards independence from Britain in foreign affairs were slow and gradual. By 1886 there was an increasing trend for Canada to send representatives to international negotiations, and it was established that British colonies were to be consulted on matters of international treaties.7 However, consultation with Canada and the other British colonies, in the case of the initial negotiations for the Berne Convention, was minimal, and no Canadian representative accompanied the British delegation at the founding meetings of the Berne Convention. On 9 September, the British delegates signed the Berne Convention, making the following declaration:

At the same time, they reserve to the Government of Her Britannic Majesty the power of announcing at any time the separate denunciation of the Convention by one or several of the following Colonies or possessions in the manner provided for by Article XX of the Convention, namely: India, the Dominion of Canada, Newfoundland, the Cape, Natal, New South Wales, Victoria, Queensland, Tasmania, South Australia, Western Australia, and New Zealand.8

There was a conflict at the root of Canada’s position as a party, under Britain, to the new convention – one that would disturb and threaten the new Union. While the

82Canadian government moved to make Canada a part of a copyright system that was being portrayed as the advancement of civilization, there were also significant differences between Canada and the countries that initiated the Berne Convention. Great Britain, France, Italy, Spain, Switzerland and Germany housed major publishers with interests in publishing in foreign countries, while Canada was a net copyright importer. They were highly developed, and Canada was still developing. They had a flourishing literary culture; Canada did not.

The differences between Canada and the lead countries in the movement to establish the Berne Convention only grew wider. Although Canada had agreed to join Berne, by 1889 there were strong arguments that Canada should control its own copyright law, independently from Britain, and denounce the Berne Convention. Canada’s decision to join the Berne Union would soon be called an act of “profound…almost criminal – negligence” on the part of Canadian politicians, because the principles of the international agreement were out of step with what many Canadian interest groups at the time were calling for.9 Canada, shortly after joining the Berne Convention in 1886, reversed position; for years following Canada’s initial accession, Canada would attempt unsuccessfully to denounce the agreement.

Canadian Minister of Justice John Thompson, who came to see the Berne Convention as being highly disadvantageous to Canadian interests, felt that the convention allowed foreign copyright holders to gain a monopoly on publishing their works in the Canadian market, causing Canadian printers and publishers to lose out. The benefits that Canadian copyright holders received under the Berne Convention did not equal, in Thompson’s view, the harm caused to Canadian printing and publishing industry:

83Thompson also felt that the terms of the Berne Convention largely favoured densely populated and highly urbanized countries such as those in Europe, but that such terms were unsuited to relatively less developed countries like Canada:

Opposition to the agreement from printers, publishers, and related industries grew and mobilized. As a result, a Canadian copyright act was unanimously passed in 1889 containing domestic printing requirements and a compulsory licensing system that were not compatible with the Berne Convention.12

The Copyright Act of 1889 contained domestic printing requirements that were disallowed under the Berne Convention, which did not allow member states to require any formality as a condition of copyright.13 The new act required first or simultaneous printing and publishing in Canada – that is, printing and publishing in Canada within one month of publication or production elsewhere.14 Works that were not first printed and published in Canada or printed and published in Canada within a month of their publication or production elsewhere would not be eligible for the protections provided by Canadian copyright.

The Copyright Act of 1889 went further. The failure to meet the domestic printing and publishing requirements of the act would have opened the way for the grant of compulsory licenses to reprint the work in Canada without permission of the copyright owner under compulsory licensing provisions. These compulsory licensing provisions, designed to make access to books more affordable in Canada, and to enable Canadian printers and publishers to better compete with the Americans, who

84did not yet recognize international copyright, were also seen to be incompatible with the Berne Convention. Therefore Canadian Parliament, in a unanimous decision, requested denunciation of the Berne Convention.15

The British, who had ultimate control both of Canadian legislation and Canadian foreign affairs, refused to let the Canadian act enter into force, and refused to allow Canada to denounce the Berne Convention. The British government was loathe to allow Canada to abandon the Berne Convention, as denunciation would break up the system of copyright uniformity throughout the British Empire. It infuriated some members of the British government that a colony such as Canada might threaten to break up the Berne Union. Henry Bergne, who had been a British delegate to the early meetings creating the Berne Convention, wrote:

Bergne and others feared that if Canada were to withdraw from the Berne Convention, other countries would follow. A British committee studying the matter wrote that if “the interests of publishers or printers were allowed to prevail over those of authors, the lead given to Canada would not improbably be followed by other colonies, and thus the whole system of Imperial copyright would be broken up.”17

Denunciation, the British Secretary of State for the Colonies Lord Knutsford informed Canada’s Governor General in 1890, would be unnecessary since the 1889 act contravening the Berne Convention would not receive the necessary approval from

85Britain.18 British imperial power was used to forcefully keep Canada in the Berne Convention.

Thompson, who became Canada’s fourth Prime Minister in 1892, was furious at this refusal to recognize Canadian copyright sovereignty. He wrote long letters to the Imperial government; he refused to meet with British representatives who came to negotiate on the issue, and finally he went to London to negotiate on, among other things, the copyright issue.19 At Windsor Castle on December 12 1894, Prime Minister Thompson died of a heart attack. His body was returned home to Canada in a boat with the sides painted black, and the dream of Canadian copyright sovereignty – and a copyright that differed from the norms of the Berne Convention – was never realized.20

The histories of copyright that focus on major powers such as England, France, and the United States tell a story about copyright that is very different from Canada’s story. It is often assumed that Canadian copyright history has been uneventful, and that Canada’s association with the Berne Convention has been uncontentious and unproblematic. However, the Canadian history stands as a reminder that the international copyright system was built and held together by imperial power. The Canadian history reminds us of the power struggles and conflicts that were part of the Union’s history from the very beginning.

It would not be long before Canada’s course in international copyright would once again change direction. Following World War I, perceptions of Canada and its place in the world shifted; Canada’s participation in the Great War meant that Canada now viewed itself as an independent participant in international affairs, and there were feelings that the rebellious copyright policies of the past might tend to make Canada an “outsider in the general community of nations.”21 At the same time, Britain began to loosen its grip on the handlebars of Canadian copyright and, with the Canadian Copyright Act of 1924 Canada, under Britain, moved to implement the Berne Convention.

86

II

CANADA’S ALIGNMENT WITH MAJOR POWERS ON ISSUES OF INTERNATIONAL COPYRIGHT HAS NOT ALWAYS BEEN EASY

Canada used its copyright policies to gain status – to project an image of Canada as a “civilized country”. Although other alignments were considered, and Canada in the 1960s and 1970s took particular note of its commonalities with the “developing” countries, generally Canada has aligned with the more powerful countries – afraid that if the country took any other route, the country would be considered as “an outlaw among the copyright nations of the world,”22 an “outsider in the general community of nations,”23 and a “non-harmonious and non-musical instrument” within the concert of nations.24

Today, Canada is aligned, as a part of Group B, with the United States and the other industrialized countries. This was not always the case; Canada also has a history of copyright conflict with the US. In the nineteenth century, Canada was used as the back door to Berne protection for American authors who, by publishing in Canada, received protection throughout the Berne Union.25 This led to a dispute between the two countries, with Canada refusing for some time to grant to Americans Canadian copyright protection.26 Later, Canada’s 1924 Copyright Act contained special provisions that sought to retaliate for the US manufacturing clause.27 Disputes continued over the manufacturing clause but were mitigated when both countries signed the Universal Copyright Convention in 1952. Canada’s copyright relationship with the US was never easy, and its association with the major powers has not been unproblematic.

Canada’s acquiescence to the norms embedded in the Berne Convention, and the country’s alignment with the major powers on international copyright issues, had much to do with the association between the Berne norms of international copyright

87and ideas of progress and civilization. For many, the Berne Convention symbolized the forward march of international law, civilization, and progress.28 Progress has, as Shanin points out, gone by various names: ‘modernization’, ‘development’, ‘growth’, ‘civilization’.29 According to Shanin, this vision of progress portrays:

The world has thus been classified according to particular systems and ideas of progress – some societies and peoples as “developed”, others as “underdeveloped” – and some in the middle.31 These ideas have their own power alongside material realities; because of its powerful ability to organize, to mobilize, and to legitimize the actions of powerful interests and states.

Escobar shows that the discourse of development, beginning in the 1950s, became universally accepted and omnipresent.32 The discourse of development, according to Escobar, constructs the “developing” world through conceptual maps, categories, and social practices.33 The discourse and categories of development have been powerful not only in constructing the “developing” world; they have also been influential in

88creating conceptualizations of the “developed” world and the copyright policies and positions acceptable for “developed” countries.

Just as nineteenth-century Canadian politicians grappled to identify the copyright policies most appropriate to the leading British colony and to a “civilized nation”, paddling within a sea of discourse largely generated by the international interests that had encouraged the creation of the Berne Union, Canadian officials in the early 1970s struggled to find a position on international copyright that encompassed Canada’s position as a net copyright importer, similar in that sense to developing countries, and an industrialized country aligned with some of the biggest copyright exporters. The weight of categorization, of commonsense notions of the type of country Canada was, played a significant role in the determination of what copyright policies Canada took.

The year 1967 marked a crisis in international copyright. Newly independent countries, beginning in the 1960s, raised important questions about whether the Berne system of international copyright was appropriate to developing countries who were importers, rather than exporters, of copyright materials and for whom international copyright created a net outflow of payments. They noted the lack of availability and high price of copyright materials, and wished to see a copyright system that would do more to solve these problems.

They called for major changes to the Berne Convention that would allow for the compulsory licensing of works to make foreign works available at affordable prices in developing countries. This led to the failure of the 1967 revision of the Berne Convention, with both developing and developed countries unhappy with the compromise that was reached.34 This crisis in the Berne Union prompted fears that either the core countries or the developing countries might withdraw en masse from the Union.35

Scepticism about the appropriateness of the Berne Convention to countries at various stages of development also appeared in Canada. Beginning in the 1950s, doubts were raised about whether Canada had been “well advised” in joining the Berne Convention. The 1957 Royal Commission on Patents, Copyright, Trade Marks and Industrial Designs took the view that the Berne Convention represented a European approach to copyright, granting high levels of copyright and placing the rights of authors in the forefront. The Commission suggested that a more American approach--with a utilitarian view of copyright that understood copyright as serving the public interest

89above the interests of authors--might be more suitable to Canada as a net copyright importer.

The Commission reported: “It may be that, in becoming a party to the Berlin Revision of the Berne Convention in 1923, Canada was not too well advised. Apart from Haiti and Brazil no nations in the Western Hemisphere are members of the Berne Union…”36

In the 1960s, following the Royal Commission’s report, Canada attended fewer meetings related to the Convention and its revisions, and refused to sign or implement the revision of 1967. Many countries refused to ratify that revision due to its controversial provisions for developing countries. Canada’s refusal was for different reasons; Canada’s prime objection was not with the provisions for developing countries; rather, Canada’s Secretary of State for External Affairs questioned whether Canada’s participation in the Berne Convention, and the high levels of copyright protection granted under the convention, was in the national interest:

The Secretary therefore recommended to Cabinet that Canada should refrain from supporting any proposed revision to the Berne Convention that would reduce the government’s flexibility of action.38 Canada did not sign the revised Berne Convention of 1967.39

90At the same time, the crisis that resulted from the 1967 conference in Stockholm sparked a new resolve that Canada should become a more influential and active player within the Berne Union. Some Canadian government officials hoped that the discourse of development now being established within the Berne Union, having been absent when former colonies like Canada joined the Union, might be translated to apply to Canada.

A government committee, formed in 1969 to assist in the formulation of Canada’s position in response to the crisis in international copyright, recommended an adaptation of the definition of ‘developing country’ such that Canada might benefit from concessions made to developing countries under the Berne Convention.40 The committee argued that, “Canada’s position is somewhat analogous to that of developing countries when compared to countries with higher exports of copyright material.”41 A Memorandum to Cabinet explained:

The Memo to Cabinet recommended, “That the Canadian delegation suggest to the Joint Study Group that, in so far as international copyright is concerned, the definition of a “developing country” should not be based on per capita income, but on a substantial import imbalance of trade in copyrighted material.”43

The reformulation of the concept of “developing country” in such a way as to include Canada was absolutely radical. Such a precedent might have opened the door to a variety of definitions of developing countries based on the balance of trade in different areas, making possible a cascade of unexpected country coalitions and policy alignments unthinkable under the existing categorizations. It is unsurprising that an

91idea so radical and so different from the regimes of representation and the practices of categorization that were being inscribed in international institutions at the time did not go far; a note on file called this aspect of the committee’s recommendation “utter nonsense”:

The idea that provisions for developing countries should apply to Canada conflicted with the established discourse that by now placed Canada as a middle power, associated with industrialized countries.

Canadian copyright policymakers in the late 1960s and early 1970s nevertheless felt that that international copyright, as implemented under the Berne Convention, primarily responded to the interests of the copyright-exporting nations. A 1977 report by Andrew A. Keyes and Claude Brunet in 1977 concluded that:

As a result of such perceptions, Canada attempted to form a coalition of ‘intermediate’ countries who were not officially “developing” countries, but who were net copyright importers. Canadian government officials envisioned that Canada might “for the first time… play a leading role in shaping the course of international copyright by fostering and leading a block of countries with interests similar to Canada.” Officials felt that this coalition “could conceivably control a certain balance of power, given active participation.”46

Canada hoped, through this vehicle, to press for major structural change to the international copyright system that would allow different countries--including netcopyright importers like Canada--to adhere to different levels of copyright protection,

92according to domestic circumstances.47 However, this initiative to redraw the political map of international copyright failed due to Canada’s inability to attract sufficient support, and due to fears that such a stance would affect Canada’s relations with countries like the United States, the United Kingdom and France.48

In an effort to resolve the crisis of 1967, simultaneous diplomatic conferences were held in 1971 to come to a more workable compromise and to revise both the Berne Convention and the Universal Copyright Convention in a way that would unify, and prevent the breakup, of the international copyright system.49 Its radical initiatives having failed, Canada supported the revision process and aligned itself generally with the major powers. Adopting a middle power image, Canada portrayed itself at the 1971 diplomatic conference to revise the Universal Copyright Convention not as a developing country, but as “both developed and developing”, an intermediary that understood the needs of both developing and “developed” countries:

Canada portrayed itself as a middle power leader: a country in a unique situation that allowed it to understand the positions of all sides:

Canada, however, did not sign the 1971 revision, and a rhetorical hint of Canada’s rethinking of the map of international copyright remained; the Canadian delegation declared, “We are all developing countries.”52

The 1971 conferences resulted in revised texts of the Berne Convention and the Universal Copyright Convention that were widely accepted. At the same time, the crisis of 1967 had shown that copyright revision would no longer be easy. Following the 1971 agreement, no further major revisions have been attempted. The 1971 text of the Berne Convention is still in force today, and formal country groupings, established under the UN system, have solidified political alignments on international copyright. Under this system, Canada is aligned as a part of Group B, the group of the most powerful countries.53

III

WHAT CONTRIBUTION DO MIDDLE POWERS MAKE TO THE INTERNATIONAL COPYRIGHT SYSTEM TODAY?

Mark Neufeld argues, drawing on Gramsci’s concept of hegemony, that the middle power language that portrays Canada as an honest broker is used by dominant groups to advance and legitimise Canadian foreign policy and the existing international order. However, he also argues that the language of middlepowermanship has come to be used by dissident groups who, beginning in the late sixties and early seventies, recast the idea of a “middle power” “to signify the influence enjoyed by a country like Canada, and the potential such influence offers to effect radical progressive change in terms of disarmament, economic development and wealth re-distribution, environmental policy and democratization of the foreign policy-making process.”54

Countries like Brazil, Argentina, and India are still pushing for changes in the international copyright system, and some would argue that Canada should play a part

94in advocating for progressive change. A 2004 proposal to WIPO‘s General Assembly from a group of developing nations (Proposal By Argentina And Brazil for the Establishment of a Development Agenda For WIPO) raised issue with both the basic assumption that intellectual property protection contributes positively to international development, and WIPO‘s core mandate, which is “to promote the protection of intellectual property throughout the world through cooperation among States.”55

This proposal sparked a series of high-profile international meetings at WIPO in which WIPO‘s mandate, impartiality, transparency, and core activities, as well as intellectual property’s contribution to international development, were broadly questioned. The meetings resulted in an agenda, approved by all member states, intended to make WIPO more transparent and responsive to the needs of developing countries. However, some of the original key proposals made by developing countries, such as a treaty on access to knowledge and an organizational restructuring at WIPO, were not included in the final agenda.

In the discussions, Canada was aligned with the Group B of industrialized countries that opposed such radical proposals.56 Similarly, in discussions surrounding a World Blind Union proposal for a narrower treaty aimed at rectifying current shortages of accessible works for the visually impaired, Canada has been aligned with the major powers who have been hesitant to commit to a treaty, preferring other non-binding approaches.57 Canada’s emphasis during the discussions has been on the importance

95of maintaining flexibility within any international instrument (whether binding or non-binding) for a variety of domestic approaches to ensuring access.58

Since the 1970s Canada has been aligned with the major powers. In 1984 the Department of Consumer and Corporate Affairs and the Department of Communications jointly prepared the paper From Gutenberg to Telidon: a White Paper on Copyright, issued as part of a public consultation on copyright reform, and set down the path that Canada would follow:

This philosophy has generally guided Canadian participation in international copyright agreements since 1984. As in 1928, when Canadian delegates were instructed to support any proposals that seemed likely to meet general approval of the governments represented, “particularly those of the leading countries, such as Great Britain, Italy and France”60, Canada today adopts the view that it must align on important issues with its largest trading partners.

Canada is now, more than ever before, an active participant in the coalition of most powerful copyright exporters on matters of international copyright. Objections to and scepticism surrounding the appropriateness of Canada’s participation in the Berne Convention have been replaced with this Canadian version of a trade-based approach to international copyright. Support for counter-hegemonic projects has been held at bay by a vision of a Canada associated with the major powers.

Change in international copyright is not impossible. Other countries like India, South Africa, Brazil and Argentina have been successfully enrolled by domestic and transnational interests to advocate change within the international copyright system; room for exceptions, such as the 1971 Appendix to the Berne Convention, which, though labelled “unworkable”, has been achieved; and copyright treaties that would advocate greater access to knowledge are even now being considered.

96Such initiatives and visions press against the great weight of inscribed associations, norms, expertise, authority, institutions, and resources of a Union that has been in place since 1886. Such initiatives and visions are based in a hope that the regime of international copyright might be transformed, might overcome the exclusions of its past, and might embed this overcoming at the core of its ongoing practices. It is only by forming an awareness of the material and discursive structures of international copyright – an awareness that is formed by examining the historical experiences of weaker countries and groups as well as the views of the stronger ones – that such a transformative commitment can be made.