Meera Nair

when Happy Birthday collides with the TPP

In Posts on June 16, 2013 at 5:02 pm

On Friday, two stories caught my eye. Benjamin Weiser, writing for the New York Times, describes a lawsuit underway which seeks to have the song Happy Birthday declared as belonging to the public domain. At the centre of his story is Jennifer Nelson, a filmmaker currently working on a documentary about the song, who discovered that her intended use of Happy Birthday must be preceded with a $1500 licensing fee. As the film-maker was filing her suit on Thursday in New York, Trans-Pacific Partnership (TPP) negotiators discreetly came to Vancouver for an inter-sessional round of talks scheduled for June 14-16. Writing for iPolitics, BJ Siekierski notes: “Despite it being the first time negotiators have gathered in Canada, however, the mini-round wasn’t publicized by the Department of Foreign Affairs and International Trade — only making it likelier to fuel ongoing criticism of the secrecy surrounding the TPP.”

These seemingly unrelated stories collide on the matter of copyright term. Canadian filmmakers may well be enjoying a measure of professional glee that they are spared the trials of Nelson and other American filmmakers. Thanks to our shorter copyright term of life-plus-fifty years Happy Birthday is already public domain material in Canada. But that glee may not last, as the leaked details about the oh-so-secret TPP agreement indicate that Canada would have to make questionable amendments to our copyright law, including extending the term of copyright. There has been very little official detail provided about the agreement, even when the Government asked Canadians for input in early 2012 (my concerns about term extension were duly submitted).

On 3 June 2013 Michael Geist appeared before the Standing Committee on International Trade and left no doubt as to how bad this agreement will be for Canadians. He began with the utter lack of transparency concerning the process:

No public report summarizing the [responses to the public consultation] was ever published, yet according to documents I obtained under the Access to Information Act, the government was overwhelmed with negative comments urging officials to resist entry into the TPP and the expected pressures for significant intellectual property reforms as part of the deal.  In addition to tens of thousands of form letters and e-mails criticizing the TPP, the government received hundreds of individual handcrafted responses that unanimously criticized the proposed agreement. In fact, a review of more than 400 individual submissions did not identify a single instance of support for the agreement; rather, those submissions focused specifically on copyright-related concerns.

Geist offered detailed illustration of the regressive changes that would be required, changes that will undo the  decade of effort that underwrote some progressive amendments achieved by this very government. On the specific matter of term extension he said:

The term of protection for Canadian copyright is presently the life of the author plus an additional 50 years after his or her death. This term meets the international requirement as established in the Berne Convention. The TPP would require Canada to add an additional 20 years to the copyright term. The extension in the term of copyright would mean that no new works would enter the public domain in Canada at least until 2034, assuming that the agreement takes effect in 2014. Many important authors would immediately be affected, since their works are scheduled to enter into the public domain in the period, let’s say, between 2014 and 2034. These include Canadians such as Marshall McLuhan, Gabrielle Roy, Donald Creighton, and Glenn Gould, as well as non-Canadians such Robert Frost, C.S. Lewis, T.S. Eliot, John Steinbeck, J.R.R. Tolkien, and Ayn Rand. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to literature and history, particularly Canadian literature and history.

Finally, Geist reminded Committee members that:

The TPP negotiations have been ongoing for years, yet there has still been no official release of the draft text. To conduct a hearing on the benefits of the TPP without public access to the draft text forces participants to rely on leaked information that has not been officially confirmed. Canada should be demanding that a draft text be made available for all to see. Instead, it is deeply troubling that DFAIT has established a secret insider group, with some companies and industries associations being granted access to consultations as well as opportunities to learn more about the agreement and Canada’s negotiating position.

At the outset Canada had very little in the way of a negotiating position. Thomas Walkom observed that Canada was allowed to join by grace of the other TPP members, “on the understanding that [Canada] would have to abide by whatever the original nine had already decided (all of which is secret).”

If Canadians lose the competitive advantage that comes from having a better public domain, the issues surrounding Happy Birthday become even more pertinent. It is not the access to any particular work per se that warrants attention, but the power of anecdotal claims of control over historic works. In this instance, the power of the anecdote yields annual licensing revenues of $2 million for the currently presumed owner, Warner/Chappell (the publishing division within Warner Music).

The history of this song was the subject of meticulous research by Robert Brauneis, a law professor at George Washington University. Copyright and the World’s Most Popular Song (2010) is available through SSRN. At sixty-eight pages in length it is daunting to read, but well worth the investment in time. Professor Brauneis gives readers the life story of Happy Birthday, through its progenitors Mildred and Patty Hill. Mildred was an accomplished musician and composer; Patty was a prominent scholar and teacher in the field of early childhood education.

The genesis of Happy Birthday was their song Good Morning to All (published in 1893). Later, the lyrics of Happy Birthday were overlaid to the melody of the earlier piece. Through review of previously-ignored primary documents, Brauneis explains the difficulty in assuming that the Hill sisters wrote the new lyrics–the copyright notices that exist for the song do not support such an assumption. Moreover, regardless of confirmation of authorship, a proper renewal notice was not filed according to the American law of the day.

Weiser writes that Brauneis is not a consultant to this case; nevertheless, his informed opinion is clear: “I believe this song is in the public domain and therefore it is not owned by anyone. … [a successful legal challenge] might be a model for challenges to other songs.” However, Brauneis is equally clear in his paper as to the obstacle for future successful legal challenges:

[As] copyright term lengthens, it will become more and more difficult to gather evidence relevant to determining the validity of contested copyrights. It is now possible for a work to still be under copyright long after not only the death of its author, but after the death of anyone who knew the author, which makes it very difficult to present testimony about the circumstances of the work’s creation. There may be little that can be done about the problem of live testimony, but more could be done to preserve documentary evidence (emphasis mine).

One can only hope that national governments heed his advice.

Some Other References

“You Say It’s Your Birthday?” by Paul Collins, Slate, 21 July 2011.

Copyright Term and the United States, posted by Cornell University, current as of 1 January 2013.  For explanation concerning the use of the chart, see “When is 1923 going to arrive?” by Peter Hirtle (Senior Policy Advisor, Cornell University Library) in Searcher Vol. 20 No. 6 (September 2012).

And, for fun, Kermit the Frog on copyright posted to YouTube on 1 April 2013.

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