May 25, 1921

L LIB

Georges Henri Boivin (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Laurier Liberal

The CHAIRMAN:

I must ask hon. gentlemen to refrain from conversing in the chamber. A moment ago, two hon. members who are trying to follow the explanations given by the minister called my attention to the fact that it is absolutely impossible to hear what the minister is saying, and looking around the chamber I saw only eighteen gentlemen speaking to others.

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UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I am glad to realize that this time inability to hear what I am saying is not attributable to the weakness of my voice, because I have been striving to make myself heard. As I was saying the Bill as originally introduced provided, as a remuneration to the author whose work was used for the purposes of reproduction upon these discs, a royalty of two cents per disc. In Great Britain the remuneration consists of a percentage on the selling price of the disc. In the United States it. consists of a fixed rate which rate is the same amount that this Bill proposes, namely two cents. I do not recall that we have had any remonstrance on

the part of the authors as regards the amount. The manufacturer however, has claimed very strenously that this two cents a copy is too high. On the other hand it is to be pointed out that when the Bill was originally drafted the draftsman proceeded by adopting the English system of a commission upon the selling price. The manufactureres themselves urged a fixed rate rather than a percentage rate, and the Bill as originally drawn accepted their contention in that regard. It would seem to one that perhaps it would be a more reasonable system to proceed by a percentage rate. However, it is to be realized that perhaps it is difficult, with regard to reproductions of the kind in question, to arrive at a very satisfactory conclusion as to what the percentage rate ought to be; and indeed it is difficult even in the case of a fixed amount to give any very definite and logical reason why you select a particular amount rather than another. It must be borne in mind when it is a question of reproduction of copies by means of these mechanical contrivances that you reproduce also the work of somebody else than the author. For instance, suppose it is a song, before the disc can be made the song has to be sung by somebody, and in a large number of cases, if not indeed in the majority of cases, it is pointed out, as I think must be readily conceded, that the great value of the disc consists not so much in the fact that it reproduces the particu* lar song as that it reproduces the execution of that song by a particular artist. A song sung by other good singers and reproduced upon a disc will never command the sale that the same song sung, for example, by John McCormack or some other great operatic singer would command. So it is difficult to find any logical basis for the determination of the particular amount that ought to be paid. Having met the view of the manufacturers as to the manner in which this should be imposed, and having in mind the fact that in the United States this rate of two cents has been fixed and, so far as we could ascertain, has given rise to no serious complaint, the committee, after very fully hearing argument in support of the contention of the manufacturers that it should be reduced, thought that the course of wisdom was to adhere to the two-cent rate. There is an additional reason for our adopting that course in the fact that we have always to keep before our minds the necessity of not so legislating as to deprive our authors of the advantage of copyright in the other

countries concerned, and more especially in the United States. Under the United States system, in order that the copyright of authors of other countries should be recognized within that country-which recognition is effected by means of a proclamation of the President-it is essential that the officers there should be in a position to certify that an American author has under the law of the other country as large a protection as the law of the United States extends in like cases. It will be necessary to come to some arrangement with the United States, and I will have a word to say about that when we deal with the final clause of the Bill which provides that it comes into force only upon proclamation. Naturally we can foresee that if we give a less degree of protection as regards reproduction of copies by these mechanical contrivances, applications by our authors for copyright in the United States might be open to objection there.

I think I have covered what were really matters of contention before the committee and with regard to which the substantial amendments made by the committee have a bearing.

I should like to impress upon the committee the importance of our adopting a copyright act, even if it should not appear to us that this attempt has resulted in perfect success. It will be much more easy to arrive at a satisfactory conclusion concerning most of the matters upon which there is a difference of opinion when some system has been tried and we have experience of how it works. The argument before us in regard to these matters turns upon what was apprehended would be the consequences of one disposition or another. From that point of view I think it important that we should make a start.

I should like also to call attention to the very unsatisfactory condition in which our legislation upon this subject stands at the present time. Copyright in this country is now governed partly by Imperial Acts of 1842 and 1886 and by a Canadian Act of 1889. As I understand it, any one who obtains copyright under the Imperial legislation holds it without regard to the provisions of our law, and it certainly is not desirable that our legislation should be in that condition, for it gives rise to confusion. In 1911 Great Britain passed a Copyright Act-and I may say in parenthesis that a large part of the present Bill is a reproduction of that Act-and in the other Dominions legislation has been enacted following the example of Great Britain.

In that Act of 1911 it was especially provided that it should extend only to the selfgoverning Dominions whose Parliaments declared it to be in force, and power was expressly given to repeal the British legislation to which I have referred so far as it was in operation in any Dominion.

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L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

That legislation only

had effect because we in Parliament so legislated.

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UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

No. The contention

was that the copyright Acts of 1842 and 1886 had effect in Canada without regard to any legislation of ours. I do not recall the year, but Sir John Thompson had a very protracted discussion with the Home authorities on that point in connection with the copyright measure that he desired to introduce. I do not know whether that discussion was ever published, but it certainly is very interesting. No conclusion seems to have been reached at that time, but in 1910 or 1911 the late Hon. Mr. Fisher went to England in connection with the copyright legislation which was then contemplated by the Imperial Government, and as the result, as I understand it, of his insistence along the line of argument which Sir John Thompson had developed, the Imperial Parliament passed this special enactment recognizing our authority to repeal that legislation.

Now, if I have not made it absolutely clear to the committee, I hope I have at all events conveyed some idea of what seems to me the very unsatisfactory condiiton in which we stand with regard to copyright legislation. Then, although this is a minor consideration, it has its importance. In the present condition of our legislation we stand as a sort of outsider in the general community of nations which have interested themselves in the subject of copyright. We are not in a position to give our final adherence to the amended Convention at Berne, and I may say that we have had at various times representations from the Powers that are parties to that Convention pressing upon us that we ought to come into the general community. In France and in England a great deal of interest is taken in this subject. I may say that the authors of France in particular find it difficult to understand why we are not willing to co-operate in the general movement for the protection of the rights of authors. In that country a very special importance seems to be attached to that right. I hope, therefore, that it will be possible for us to enact this legis-

lation. Of course, I do not ask or expect that hon. members who may find that there are grave defects should not seek amendment. I would ask, though, that as far as possible the importance of our getting a law passed which may form the basis of future improvement should he borne in mind. Since 1911 this matter has hung in suspense. In that year the late Hon. Mr. Fisher introduced into this House a Bill following very closely the British legislation and, consequently, in very large measure similar to this one. Since that time, if I am not mistaken, there have been at least two attempts at improvement. A Bill was passed through the Senate, I think, two years ago, it did not succeeed in passing this House. Last year we had a Bill before this House, but it seemed so difficult to get at any conclusion which could be reasonably expected to conciliate the contending interests that the matter had to be dropped. This session, I may say on behalf of the committee and on behalf of the special officer charged with this subject of copyright, very assiduous efforts have been made to bring about a measure which, if not absolutely meeting the view of all interested, may at least prove acceptable; and I myself have endeavoured to give what little aid I could in that regard. I therefore commend the measure to the considerate consideration of the committee.

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UNI L

William Stevens Fielding

Unionist (Liberal)

Mr. FIELDING:

I desire to thank the right hon. gentleman for the explanation he has given; I am sure it will prove to he very helpful. May I ask now, referring to the first part of his remarks, whether the conclusions that the committee have reached are very satisfactory, or is there still conflict between the author and the publisher? Are these interests fairly satisfactory, or is there still conflict between the author and the publisher? Are these interests fairly satisfied with the compromise which has been reached?

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UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

With regard to the

author, I may say that his contention was that there should be no licensing system; that he should be, as matter of right, the sole person controlling the reproduction of his work. We have not been able to meet that requirement, but we did receive a memorial from the Authors' Association, in which, after putting forward that contention, they went on to indicate in detail what were the particular things in the Bill as introduced which in their view failed to do them justice. I think I may

safely say that each one of these particular objections has been fairly met. Perhaps on the part of the Canadian authors the strongest ground of objection was that by this legislation we exposed them tc losing their copyright in the United States, because we were making legislation which, as they considered-and I think it probable -would not he looked upon as acceptable by the United States. This legislation recognizes, as to all of the Copyright Union countries and as to all their authors, copyright in this country. It is not possible to treat in the same way authors of the United States, because that country does not form part of the Copyright Union. There are, however, provisions in the Bill enabling the Governor in Council, whenever it is possible to certify that the law of any country not in the union gives as efficient protection to our authors as our law does to theirs, by proclamation to extend the advantages of this Act to the country in question. Furthermore, once we have a definite law not necessarily an immutable law, but still a definite law- which we can submit to the American authors-for their consideration, there is every reason to expect that we shall be able to obtain from them a recognition of the sufficiency of our law similar to that which they have already granted to the law of Great Britain. That done, all the danger which the Canadian authors apprehend would disappear. I think I may say that their representatives felt quite reassured, when we pointed out that it was intended not to bring the Act into force save by proclamation, and that the purpose of making that provision was to enable us to be quite sure that we had a law that would operate to obtain for them protection in the United States and that, being satisfactory to Great Britain, would assure to them protection there. The representatives of the authors who came before us were satisfied upon that point, and that seemed to he the thing to which they attached the greatest importance.

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?

Mr. H. M. MO WAT@Parkdal'e

The committee, I may

say, fully considered the representations of the different interests-the Canadian Authors' Association and the English Authors' Association, called the Incorporated Society of Authors, Playrights, Composers, and others. I think I can say that the committee gave every possible consideration to what was advanced by the contending parties, and that it regards the Bill as now reprinted as the safe course between the two, if any great difference

does exist, which I very much doubt. The trouble in Canada has been that under the present Copyright Act one of the conditions for the obtaining of copyrights is that the work in question shall be printed in Canada. Section 6 of the present law, Revised Statutes, chapter 62, section 5, says:

The condition for obtaining such copyright shall be that the said literary, scientific or artistic works shall be printed and published or reprinted and republished in Canada.

This was felt by the authors to he a hardship, and it may be that with a continuance of the clause requiring printing in Canada in that definite way, we would not be able to take advantage of our participation in the Berne Convention, which was arrived at on the part of the principal civilized countries of the world in 1886 and again, in what is known as the Revised Berne Convention, in 1908. We now have a Bill which protects each interest as far as possible. Instead of providing that the works shall he published in Canada-a provision which the printer, publisher and book-binder wants, and which he has hitherto in draft Bills succeeded in getting-we have substituted a license provision, requiring, not that the author shall state his intention of not printing in Canada as in the original draft of the Bill, but that if he does not so print then a license can be granted to any applicant upon giving sufficient royalty to the author. The author, therefore, is protected.

Then this Bill contains a provision which has hitherto been absent from our law, namely, that the Canadian author of a song or a piece of music, who has not had copyright in Canada and who has, therefore, had a legitimate grievance against his country, is now protected to the extent of 2 cents for each record, or 4 cents, if the record is printed on both sides. We have done away with the objection which manufacturers of records or discs had, that they might have to pay in another country if discs were exported. We have drawn the Bill so that only the 2 cents is to be collected as a condition of manufacturing.

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UNION
?

Mr. H. M. MO WAT@Parkdal'e

Yes, 2 cents on each disc. The particular manufacturer in Canada has not to pay more than 2 cents. If the disc goes first to another country and it is shown that 2 cents, or whatever sum it is, has been paid, then there will be nothing further to pay. The author is compensated by the two cents paid in any country; that is supposed to be sufficient for him, and I

think that sum, which is found agreeable in the United States, will be found suitable and agreeable in Canada for authors for their songs.

The impulse for this legislation seems to have come first from those people who were not protected before. We have a very anomalous state of affairs in Canada as regards the copyright law, and it is this. While we were authorized as a Dominion to deal with "Copyright" matters, and while we did so in 1875, the Act of that year containing this printing clause. In a case of Smiles, the author against Belford in 1874 or 1875, as reported first in the Ontario Court of Appeal, it was held by the Privy Council that we could not prevent a British author from ignoring that provision. Therefore, until now we have had in Canada two laws, one the English law of 1842 which is declared to be in force as regards British authors, and our own Act, and there is a conflict owing to the decisions of the courts which has made the law uncertain. It is only as cases arise that the law can be made clear. This shows the importance of getting this legislation as soon as possible on the statute book. The situation is very much as described by the Royal Commission on Copyright in 1878, which describes the law in Britain as follows:

The law at present is already destitute of any sort of arrangement incomplete, often obscure and even when it is intelligible upon long study, it is in many parts so ill-expressed that no one, who does not give much study to it can expect to understand it. Obscurity of style however, is only one of the defects. Their arrangement is often worse than their style Of this the Copyright Act of 1842 is a conspicuous instance.

The same remarks would apply, it seems to me, to the copyright law of Canada which has been the despair of judges and lawyers for many years. If we can pass this legislation, we will largely do away with those difficulties. I agree with the remarks made by the right hon. gentleman who is in charge of the Bill, that this is a sincere effort to bring the two parties together. I think that has been done and that this legislation may be favourably received by the committee.

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LIB

Louis Édouard Fernand Rinfret

Liberal

Mr. RINFRET:

As a member of the committee, I would also like to make a few remarks to explain the particular situation in which we were placed when we were confronted with this Copyright Bill. As the minister explained, there were many conflicting interests, and it was very hard,

in some cases, to have them agree on any particular provision. I think, however, we all agree on this point that we have on the statute book a very antiquated copyright measure, and that it should be replaced by a new one at the earliest possible moment. In fact, it was urged upon us that it would be better to pass a copyright measure which might not be perfectly satisfactory, than not to pass a Copyright Bill at all. I do not know whether we should entertain that idea.

There is one point on which I first wish to insist, and it is the case of the composer whose songs or musical productions are reproduced by phonograph, gramb-phone, by means of discs or other contrivances. At present there is no right at all which can be exacted from the manufacturer, and therefore, the composer was placed in the situation that his production could be used by the manufacturer without any return to the composer. As regards that particular case, the demand of the composer is fairly met by clause 18 which, while it does not allow a very large return to the composer, is, at least, an improvement on the statute which now exists, because formerly no provision for any return was made. We can all agree on that clause, and all that relates to that particular feature of the Bill.

The conflict is more on clauses 13, 14 and 15 which deal with relations between printers and writers. The writers claim that they have a full right to their production; that it does not matter if they have obtained copyright, they are the sole judges whether their works can be reproduced or not. It has been said that the Bill gives them protection in this sense, that it will afford them, in any case, a fair return for their work; but it takes away from them protection in this sense, that they no longer remain the sole judges whether their books shall be printed or not in Canada. At present when a writer prints and obtains another copyright in another country and at the same time in Canada, he is the only judge whether he will have the book printed in Canada or not. By this Bill a license may be granted to any printer or publisher, who applies for it, and he may print a book on which copyright exists whether the author deems that advisable or not. I think that is the main point in the discussion in connection with this Bill. We can all agree to every provision of this Bill except the three clauses dealing with the license. I may say that I have kept in touch with the

writers; I am a representative of them in a way, being a member of their association, and they object to their works being dealt with in this manner. They claim that they have an absolute right to their works; that they should be the only judges whether their work shall be published or not. While they wish to be protected as regards the royalty to be paid for their works, they are more anxious to be protected as regards the printing. That is their case. Of course, there is the case of the printer who says that his interests are prejudiced when a work is published in a United States magazine which is circulated in Canada, because that affords the American magazine the advantage of a large circulation in Canada where a Canadian magazine cannot compete. It was urged upon us that we should allow the Bill to pass in any event, because this Bill will be put into force only through proclamation, and it will be possible in the meantime to improve it.

I do not wish to impose my views on the committee, bur I think we should endeavour to pass this Bill in as good a shape as we can possibly make it. As far as I am concerned, I feel like approving of the Bill altogether, but I would urge upon the minister to drop clauses 13, 14 and 15. The Bill will not come into force except by proclamation, and I think it would be more proper to pass the Bill without these clauses when we feel that we are not on safe ground. Then, if it is found necessary, we could add them later. I think the contention that these three clauses, which by the way are not to be found either in the British Copyright Act or in the copyright act of any other country, are In direct contravention of the Berne Agreement, is a sound one. The Berne Agreement says in respect to rights granted to members of the union in other countries, that the enjoyment and exercise of those rights shall not be subject to the performance of any formality, and to meet this provision we have provided that instead of the author who will not print his book being compelled to make a declaration to that effect, a stranger may apply for the right of printing the book, and it was claimed that as long as the author had not to perform the formality this would not be tampered with.

I want to pay this tribute to the minister and the committee. The work of the committee has been done in a most agreeable and noncontentious way, with a view to framing an acceptable Bill. But it does

seem to me thac even if the author is not forced to declare that he will not print, yet the right of protection to his work is taken away from him, if a stranger can obtain a license. I do not know if the committee will see it as I do, but I think that the spirit of the Berne Convention is very strictly that nothing should be done in any of the countries which are members of the union that would come in conflict with this section, not only in wording but in spirit, and I think that to allow a stranger, a publisher or printer perhaps, to apply for a license is a formality by which the author is going to suffer if he feels that his work should not be published. If is not simply a question of dues; it is a question of the very ownership of the work by the author. I do not wish to press my point further at this stage, as we shall deal with the Bill clause by clause. I share the view of the minister that we should pass the Bill, because if we do not do so now, we shall have to go over all this work again next year or later. I do think, however, that it would be very much wiser to pass the Bill without these three clauses, because I think there is not the slightest doubt that they are in contravention of the Berne Agreement. If we find it advisable to introduce them later, that can be done.

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L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

If we leave out these three clauses how will it leave the Bill as regards the publisher?

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LIB

Louis Édouard Fernand Rinfret

Liberal

Mr. RINFRET:

The author in Canada would be the sole owner of his rights. A publisher could apply for the right to publish, but he would have to apply to the author instead of to the department.

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UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

When we come to the

clauses in question, I shall have something to say in answer to the hon. member. I think, however, he might ask himself, when he suggests that the Bill should pass without these three clauses, whether we can pass the Bill .without them, because there are people who take the other view. In the committee we heard both sides, and it is to be conceded that this is a compromise provision that does not recognize the extreme right of the author. On the other hand, it limits him to this extent only, that if he does not think proper to print in Canada somebody in Canada may be authorized to do so on terms absolutely fair to the author, in the way of remuneration and in every other respect. It is true that it has the effect of saying that to this extent his property may be made use of by another person, but after all, we hold all our property subject to restrictions in the public interest. Here this Parliament, and the people of Canada, through this Parliament, are extending protection to the right of the author.

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L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

Does the minister compare the right of the author to the right of eminent domain?

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UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

That property ought to be subjected to the consequences of the principle that all other property is. I am not suggesting that the case is absolutely analogous, but when we are extending this protection, is it an unfair thing to say to the author: Now that we are extending to you this special protection, we think that we ought at the same time to have present to our minds the interests of the Canadian people in connection with that publication. In the work there is the author's intellectual effort; there is also the printer's and publisher's material work. Now what we think we have achieved is to have done something to enable a Canadian to take part in that material work, at the same time giving full compensation to the author for the use of the intellectual work.

I have in mind also when we come to the clauses, by reason of representations that have been made to me since the committee met, to ask chat there be a provision that where the author has printed an edition in Canada and published it, and has made up his mind that he does not wish to issue any further editions, there shall be no license issued to publish a further edition. But we will take that up when we come to the clause. I would ask that this present clause, which is the British clause, be adopted as amended.

Section as amended agreed to.

On section 13-application for license to print book in Canada by others than owner:

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L LIB

Jacques Bureau

Laurier Liberal

Mr. BUREAU:

I understand that this is a kind of compromise between extreme views of the authors and publishers, and that if these clauses were omitted, as has been suggested by the hon. member for St. James (Mr. Rinfret), the Bill would be more or less valueless. I think they have to subsist to give the Bill some value.

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UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

I would not feel that

we could expect to pass a Bill on the absolute line one way or the other. I an'

REVISED EDITION:

not without sympathy for. the views of the hon. member for St. James (Mr. Rin-fret), but I am quite confident that to do what he suggests would defeat the possibility of our passing the Bill. I would suggest that we have gone as far as we could possibly go, with one exception, in respect of which I propose to move an amendment. This amendment will recognize this further right of the author who has printed and published an edition, that he shall not be subject to have a second edition published and printed by a licensee if he has made up his mind that he does not want to publish any further editions. It has been pointed out to me that an author who has issued an edition, published either by himself or by someone else, may on reflection feel that his work ought to be revised. He may not any longer entertain all the opinions he expressed in that work, and this is particularly true in regard to scientific works. The progress of science is very rapid, and a man who may have written a work ten years ago, in which he committed himself to certain views on scientific problems, might find, through the process of time, that his views were no longer tenable. Under this and analogous circumstances, therefore, it does not seem right that the author should have a second edition of his work published against his judgment.

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L LIB

Rodolphe Lemieux

Laurier Liberal

Mr. LEMIEUX:

Before the minister

offers the amendment which he proposes, he might explain what is the delay contemplated to be fixed by regulations in subsection 5 of section 13.

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UNION

Robert Laird Borden

Unionist

Sir ROBERT BORDEN:

It would vary in different instances.

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UNION

Charles Joseph Doherty (Minister of Justice and Attorney General of Canada)

Unionist

Mr. DOHERTY:

The original Act provided a fixed delay, but when we came to look into the matter, we could not but realize that for an author resident in Ottawa, it would hardly be reasonable to fix the same delay as in the case of an author resident in Paris or Rome. A delay that would be adequate for the remotely situated author, would be a waste of time as regards the man close at hand, and it was thought that it would be better to determine the delay according to the circumstances of each case.

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May 25, 1921