The Copyright Question by George N. Morang
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George N. Morang >> The Copyright Question
"Professor Mavor said there was a difference between the law officers
of the Crown and the Canadian law officers with respect to the rights
of Canada to legislate for copyright in Canada, and there was no doubt
that publishers on both sides held extreme views. When his Society
turned their attention to it, they considered whether some middle path
might not be arrived at which would satisfy reasonable people on both
sides of the water. They laid down four principles to guide them. They
thought it useless, considering the present population of Canada, to
propose a manufacture clause, and therefore set that aside. In the
second place, they thought the system of licensing was far too
complicated to be worked out satisfactorily. Thirdly, they thought it
would be a great pity for Canada to do anything to lead to the
withdrawal of the Berne Convention; and fourthly, they thought it
would be a great pity to disturb the existing relations as regarded
copyright between England and the United States. They went to some of
the publishers, and asked them to point out where the shoe pinched,
and it appeared that the publishers had a reasonable grievance. They
said that, when they bought what they supposed to be Canadian rights,
sometimes before they could get their books on the bookshelves,
English editions were in the market side by side with the domestic
editions. There was no suggestion that the British publishers acted
otherwise than in perfect good faith; but wholesale dealers were in
the habit of purchasing large numbers of books, and sending some to
the Cape and Australia, and some to Canada. It appeared that something
would be done in connection with that, by explaining it to the British
publishers, and asking them to assist in passing legislation to carry
it into effect. If the clause was carried in England, the Canadian
Government would pass an Act to enforce it there."
Mr. H.L. Thompson, a member of the publishing house of The Copp, Clark
Company, was also present. Mr. Thompson said that "the copyright question
in Canada was understood very slightly by the people at large, and if they
mentioned copyright they thought it had something to do with monopoly.
Speaking of his own house, he could say they cordially supported the
suggestion made by Professor Mavor." It is difficult to understand why Mr.
H.L. Thompson and his partner, Mr. Thomas, are now, only two years
afterwards, to be found advocating exactly the contrary views.
The following resolution was adopted by the Congress:--
"That it is eminently desirable in the interests of English owners of
copyright, and for the maintenance of the Convention of Berne, that
some satisfactory arrangements should be entered into with Canada in
regard to copyright matters. On this ground the Conference desires to
give cordial support to the proposal brought forward by Professor
Mavor."
In the year 1900, a bill was introduced by Lord Monkswell into the House
of Lords to consolidate the law relating to literary copyright. At the
instance of the Canadian Authors' Society a clause was introduced into
this bill empowering the Legislature of any British possession if a book
had been first lawfully published in any other part of Her Majesty's
Dominions, and it was proved to the satisfaction of an officer, appointed
by the Government of such possession to receive such proofs, that the
owner of the copyright had lawfully granted either a license to import for
sale in such British possession, or a license to reproduce therein by any
process, an edition or editions of any such book designed for sale only in
such British possession, it should be lawful for the Legislature of such
possession by Act or Ordinance to provide for the prohibition of the
importation, except with the written consent of the licensee, into such
possession of any copies of such book printed elsewhere except under such
license as aforesaid, except that two copies might be specially imported
for the _bona fide_ use of each of the public free libraries, of the
university and college libraries, and law libraries of any duly organized
law institution or society for the use of its members.
The fourth Congress of the Chambers of Commerce of the Empire met in
London, when Lord Monkswell's bill was before Parliament, and unanimously
adopted a resolution, which I proposed and which was seconded by the
Honourable Thomas Fergus, of New Zealand, declaring its approval of the
bill and expressing the earnest hope that it might speedily become law.
Lord Monkswell's bill did not succeed in getting through the required
stages to make it law, but the British Government has now taken the matter
up, and the King's speech at the opening of the present Parliament
announces a copyright bill as a Government measure.
Towards the close of the Parliamentary session of 1900, the Honourable Mr.
Fisher introduced into the Canadian Parliament a Bill which was found to
be generally acceptable and which ultimately became law. This Bill,
usually referred to as the Fisher Bill, provides in effect that if a
Canadian publisher, under license from the owner of a British copyright,
reproduces in Canada an edition designed for sale only in Canada, the
Minister of Agriculture may prohibit the importation into Canada of any
copy of the book printed elsewhere. The Fisher Bill was passed with the
full approval of the Imperial authorities, and is another great concession
to the Canadian trade. Now, if a Canadian publisher buys the British
copyright of a work so far as Canada is concerned, he may protect himself
not only against the introduction of United States and foreign prints,
but even as against the introduction of reprints produced in Great Britain
itself.
The Fisher Bill, which was passed at the instance of the Canadian Society
of Authors with the sanction of the Canadian Manufacturers' Association
and the Executive of the Employing Printers' Association, expressed in
formal resolutions laid before the Government, and with the tacit approval
of the Canadian publishers, placed the Canadian publishing trade upon a
firm basis. It was the final step in securing the establishment of the
Publishing Trade in Canada.
In June, 1900, Professor Mavor and I were called before the Select
Committee of the House of Lords and questioned as to whether in our
opinion the Fisher Bill was intended to be local in its operation and not
to conflict with the Imperial Copyright Laws. We gave the opinion that the
Bill was intended to be confined in its operation to Canada. This opinion
was accepted as a satisfactory explanation and the Bill received no
opposition in England and came into effect without disallowance. By
allowing this Bill to become law, the Imperial authorities gave that
further recognition to the Canadian publishers which successfully
established their trade, and put an end to the deadlock which had existed
between Great Britain and Canada for twenty years. Mr. W.J. Gage, the
Chairman of the Wholesale Booksellers' Section of the Board of Trade,
himself testified to the present prosperity of the Trade at a Banquet on
the 19th of last December, at which he entertained the Section, and
congratulated his hearers "upon the last year having been with them a year
of prosperity, and a year of prosperity with the Paper Trade as well."
What then is the reason for the present agitation? Does any one pretend to
assert that the present conditions under the Fisher Bill are not working
well?
Under the provisions of the Fisher Bill, it has become possible for any
Canadian publisher to go to England, make arrangements with the owner of a
British copyright for the publication in Canada of a Canadian edition, and
then publish here freed from the fear of an invasion of his market by
British, American, or any other foreign reproductions, whether the
publication was first in Canada or subsequent to publication elsewhere.
* * * * *
To summarize the position:--In 1847, the Imperial authorities yielded to
Canadian demands and permitted the introduction of the cheap American
reprints of British copyright books. This arrangement our own Parliament
terminated.
In 1886, the Imperial Parliament set at rest a question which had existed
in reference to the copyright in books first published in Canada, by
providing that the British Copyright Acts should apply to such works in
the same manner as they apply to works first produced in the United
Kingdom. They now occupy exactly the same footing.
In 1900, the Imperial authorities again yielded to Canadian demands, and
permitted the Fisher Act to come into force, which prohibits the
importation of copies of a work printed in the United Kingdom, when the
Canadian publisher produces in Canada an edition of the work under license
from the copyright owner.
The Canadian author who publishes his work in Canada secures copyright not
only in the whole British Empire, but obtains protection in all the
countries comprising the Copyright Union. If he comply with the provisions
of the Chace Bill, and print and publish contemporaneously in the United
States, he secures the whole market of the States as well, which was a
loss to him prior to 1891. Sir John Bourinot thus obtains protection for
his property in his valuable historical productions, and is reaping
splendid returns from the United States market. Mr. Seton-Thompson and Dr.
Drummond are doing the same. Yearly the authors of Canada are gathering a
harvest from this great market. Secured by the Berne Convention, Mr.
Frechette's "La Noel au Canada," printed in Toronto, goes to France safe
from continental piracies. Not a year passes that Canadian editions of
books are not shipped to Great Britain, and the trade is increasing.
Examples of such books are Professor Clark's "Paraclete" and Colonel
Denison's "Soldiering in Canada."
The Canadian publishers are now secured in the possession of their own
market when once they have acquired a license from a British copyright
owner, and have reproduced the work in Canada. Canadian printed editions
of Rudyard Kipling, George Eliot, Francis Parkman, and of scores of others
may now exclusively be dealt in by the Canadian book-selling trade.
Prominent American publishers have told me repeatedly that our Canadian
Copyright Law as it stands, is superior to anything they have had in the
United States for the benefit and encouragement of publishing.
It was once the custom for the English author, when dealing with the
American publisher, to throw in Canada as an inducement to complete the
deal. Mr. Thomas in his address to which I have referred stated that this
is still the custom. Mr. Thomas knows better than this, for, whilst this
was undoubtedly the custom some years ago when Canada and her trade were
little known or regarded in England, it is not the custom now. Rudyard
Kipling, Hall Caine, Benjamin Kidd, Crockett, Doyle, Hope, Parker, Miss
Fowler, Miss Cholmondeley, Miss Montresor, Marie Corelli, all now deal
with Canada as a separate market, and contract directly with Canadian
publishers. This custom is growing rapidly and more books are now directly
offered to Canadian publishers than can be safely taken, having regard to
the present state of the market.
Those who at present comprise a majority of the Booksellers' Section of
the Board of Trade desire to have a Canadian copyright law of their own,
to secure authority which will enable the Canadian Parliament to pass an
Act which would separate Canadians from the rule of British copyright
legislation, and necessarily, too, from its benefits. It goes without
saying that if this is effectuated Canada will be excluded from the
Copyright Union and also from protection in the vast market of the United
States; and as a further consequence the works of Canadian authors would
again become public property outside of Canada, and the British publisher
would surely retaliate.
And what end will be gained by all this? Nothing but the right for
Canadian publishers to print in Canada the majority of British or foreign
books in any cheap form they please, and to compile such works as School
Readers made up of extracts culled from copyright works, subject only to
such safeguards as will secure to the owners of the copyrights infringed
upon a _reasonable_ royalty, in the imposition of which they can have no
effective voice.
Were the proposals of the Board of Trade carried into effect, it would
reduce our country below the standard of national morality and of
international fair play maintained by all other civilized nations now
united in the Copyright Union. Canadian authors would then encounter the
same difficulty in securing recognition at the hands of Canadian
publishers that American authors experienced with their publishers prior
to 1891, when British books could be published in the United States
without payment of royalty.
I agree in the view that the rights of an author are just as much entitled
to protection as any other rights in property. I am absolutely opposed to
any retrograde movement on the copyright question. I believe that the
rights of publishers are inseparably bound up with those of authors, and I
regard any attempt to deprive authors of any rights in the property which
is the product of their intellectual exertions as "nothing short of a
crime equal to that of a highwayman," nor can I submit to remain a member
of the Board of Trade without recording my warm dissent from the action of
the Council and the Executive. I object emphatically to our taking the law
into our own hands, and fixing what we may be pleased to think is _a
reasonable price_ to be paid authors for their property, merely because it
is the product of their intellectual labours. I am satisfied to accept
the Canadian law as it is, and to abide by its provisions if they are
fairly construed.
I maintain that the subject of copyright is abstruse, and is not to be
mastered in a few days or in a few months. Long as this letter is, I have
stated only a single phase of the question. I could better have dealt with
the matter in a short address, and I very much regret that the Executive
of the Council did not afford me the opportunity of appearing before them
when I asked it. Had this been done, I feel satisfied that the Board would
not have been committed to the proposals the Council are now engaged in
advancing, nor would the Board have been subjected in England, as it
already has been, to the criticisms of those who understand the copyright
question, and with some indignation resent the course of the Board in
advancing reasons for its action which are not in accordance with the real
facts.
I am, Sir,
Yours truly,
GEORGE N. MORANG