Meera Nair

A short lived celebration

In Posts on January 8, 2012 at 7:48 pm

With the celebration of the New Year, came new vigour into the Canadian public domain. But by Friday Michael Geist was alerting us that our public domain may stagnate soon. Under the auspices of the Trans-Pacific Partnership (a proposed international trading agreement) the term of copyright in Canada would increase from life plus fifty years, to life plus seventy years.

As Geist reminds us, our international obligation stops at life plus fifty years. Other countries have increased their copyright term, without any illustration of public benefit.  Whereas, evidence to the contrary is not hard to find. 1998 was not only the year of the United States’ Digital Millennium Copyright Act (DMCA) with its protection of digital locks, but also the year of their Copyright Term Extension Act (CTEA) which set American copyright term to life plus seventy years.

Before, during, and after the extension of American copyright term, dialogue was vigorous. A memorable comment came from Peter Jaszi; in his testimony to a Senate Judiciary Committee in 1995, he expressed concern that copyright in the United States would become perpetual via “the installment plan.” This lay in contravention to their Constitutional quid-pro-quo bargain: the monopoly of copyright is permitted only for a limited time in order to assure the public of unfettered access to creative works. These concerns were further argued through a constitutional challenge to CTEA, Eldred v. Ashcroft (2003). (Regrettably, the case did not succeed; see my entry here.)

Canadians may wish to read the detailed analysis of seventeen note-worthy economists, prepared for the Eldred case. From their summary:

The longer term for new works provides some increase in anticipated compensation for an author. Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1% compared to the pre-CTEA term.

With respect to the economists’ analysis, dissenting Justice Breyer of the United States Supreme Court offered these choice words:

What potential Shakespeare, Wharton, or Hemingway would be moved by such [a gain]? What monetarily motivated Melville would not realize that he could do better for his grandchildren by putting a few dollars into an interest-bearing bank account?

The economists also observed that the extension of term for existing works does not provoke a further incentive to create — the investment required had already been made. Against these negligible, or non-existent, benefits of term extension, the economists examined the costs of the extension by way of access to existing works and creation of derivative works:

A lengthened copyright term under the CTEA keeps additional materials out of new creators’ hands. Would-be new creators face increased transaction costs: the necessity to engage in costly locating (especially for very old works, the very ones that would be in the public domain but for the CTEA) and bargaining with multiple parties. These higher costs give new creators less incentive to produce. As a result, the CTEA imposes two kinds of burden on society, fewer new works produced and higher  transaction costs in the creation of some works.

Canadians might also be interested in the 2009 copyright consultation submission of Project Gutenberg Canada, written by its founder Mark Akrigg. He explains how our cultural heritage is affected by copyright’s lengthy term:

The commercial value of copyrights is exhausted far more quickly than most people realize. The vast majority of books go out of print shortly after their original appearance, and are never reprinted. Very long copyright periods are dangerous to Canada’s cultural heritage, because many original works are in essence gone forever by the time they enter the Public Domain. They are forgotten, because they have been unavailable so long.

Akrigg asked our Government to refrain from copyright term extension and protect the public domain. In his final recommendation, he made three suggestions:

(a) The Copyright Act be renamed the Copyright and Public Domain Act. The purpose of this to emphasize that private copyright and public copyright (the right to use the Public Domain freely) are both vitally important.

(b) Explicit recognition of the Public Domain. The preamble to the copyright update bill should include specific recognition of the role of the legislation in ensuring “the orderly passage of works to the Public Domain to form part of Canada’s cultural heritage”, and a statement that “full, unimpeded access to the Canadian Public Domain is a critically important cultural right which is vital to preserving Canada’s cultural heritage.”

(c) The creation of a Public Domain Commissioner. The Public Domain is not protected by organizations of any kind, and its critical importance is often overlooked in policy discussions and decisions. For the public good, a high-profile advocate is needed to ensure that the Public Domain is protected and promoted. The history of copyright in Canada must not be a depressing tale of increasingly oppressive legislation removing accepted rights from the Canadian people. It would be extremely helpful to have a Public Domain Commissioner with a specific mandate to act as the advocate of the Public Domain, to facilitate the access of Canadians to their cultural heritage, and to report to Parliament on the status and health of Canada’s Public Domain.

Our Supreme Court has not been shy to emphasize the preeminence of the public domain. In 2002, Justice Binne, writing for the majority in Théberge v. Galerie d’Art du Petit Champlain inc., stated: “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).” Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be “room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).”

Our life plus fifty copyright term gives Canadian creators an advantageous position with disfavour to none. In fact, far from extending copyright’s term, a worthy ambition would be the international reduction of the term of copyright. With instant obsolescence an increasing characteristic of the present day world, lengthy protection holds even less meaning.

On 31 December 2011, in Canada Gazette, the Government of Canada filed notice of a public consultation regarding the TPP agreement: “It is essential that the Government of Canada be fully aware of the interests and potential sensitivities of Canadians with respect to this initiative.” Canadians may submit comments before February 14, 2012; see Canada Gazette for details.

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