Meera Nair

term extension — redux

In Posts on February 15, 2021 at 8:18 pm
An illustration of the works of Lawren Harris, which now are in Canada's public domain.

Mount Robson, by Lawren Harris (1885-1970). A recent arrival to Canada’s public domain.

The spectre of copyright term extension has returned to Canada as the Federal Government seeks to fulfill its CUSMA obligation to extend the term from life-plus-fifty years to life-plus-seventy years. Canadians have been invited to comment regarding the “[adoption of] measures to mitigate the potential implications of this longer term of protection.”

As Michael Geist writes, with only a month allotted for Canadian input (during a pandemic), this has all the appearance of “consultation theatre,” particularly as a credible and comprehensive evaluation of many proposed changes to the Copyright Act, including term extension, was carried out by the INDU Committee assembled in 2017-2018. In their words:

[The Committee] favours extending the term of copyright, but only if CUSMA is ratified. The Committee expects that rights-holders will benefit from term extension, but also notes the arguments made against it. The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system. 

But as Geist also writes: “The government is not inclined to support the committee’s recommendation.” Even more disappointing is the sight of the present government denigrating the painstaking work of the former INDU Committee members and analysts by questioning the legitimacy of their recommendation. In the consultation document, this government writes: 

The approach recommended by INDU raises serious questions in the context of Canada’s international obligations, as well as the costs that would be borne by copyright owners and the duplication of administrative efforts that might result. Numerous international treaties to which Canada is a party (e.g., Berne) prohibit the imposition of any ‘formalities’ [such as registration] that would need to be satisfied for foreign works to benefit from copyright protection in Canada (p. 9).

The dire warning of “international obligations” is not a new tactic when it comes to matters of copyright; this bogey man returns each time Canada deviates from the path of copyright maximalism. But maximalism in itself is not an international obligation. As the World Intellectual Property Organization (WIPO) makes abundantly clear, while the Berne Convention sets minimum standards of protection, including a prohibition on registration for foreign copyright-owners, all protection is limited by time: “As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death (emphasis in original).”

The present government takes further aim at registration: “with new pressure on copyright owners to register their works, such an approach would likely result in increased costs in the form of registration fees and associated administrative and legal costs, particularly for owners of copyright in multiple works (p. 9).” Through their analyses of all submissions to the 2017-2018 Copyright Review, librarians Jennifer Zerkee and Stephanie Savage shed some light as to whom such copyright owners might be:  

(Savage and Zerkee showcased their research during the ABC Copyright 2020 Fall Series and provided their slides to University of Alberta’s Education and Research Archive.)

It will come as no surprise that enthusiasts for term extension hail from commercial arenas. Broadly speaking, corporate entities with large holdings of commercially successful works have the potential to gain revenue through longer periods of control. They are the epitome of “owners of copyright in multiple works.” But to suggest that such companies are ill-equipped to handle the administration and costs of registration lacks conviction. And whether the copyright owner is a corporation, or an author’s heirs, the necessity of registration will not arise for decades, allowing ample evidence to accrue as to whether registration will enhance anyone’s coffers.

Moreover, as the prior INDU committee noted, a registration system ensures transparency and, by extension, allows users a better means to gauge what is or is not in the public domain. Such a state of affairs not only provides libraries, archives, and museums with more stable ground on which to practice their public missions (a need recognized by this government), but also offers smaller independent creators and publishers security to practice their crafts as well. 

There will always be those who insist that increasing the scope and duration of copyright provides both individuals and industry with greater incentive to invest in creative activity. But Eldred v. Ashcroft (2003), the ill-fated constitutional challenge to American copyright extension at the U.S. Supreme Court, remains a salient rebuttal to this catechism.

At that time, a bevy of noted economists placed the monetary gain of term extension as negligible: “Because the additional compensation occurs many decades in the future, its present value is small, very likely an improvement of less than 1%.” While the majority of the Justices allowed the term extension, dissenting Justice Breyer offered this memorable riposte: “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?” (Further details here.)

As Zerkee notes, one “creator/rights-holder” (Broadview Press) argued against term extension during the Copyright Review. Broadview Press is an independent Canadian publisher; their work is highly acclaimed, particularly their value-added editions of public domain works. In this regard, they exemplify what is too often glossed over by copyright maximalists: that the public domain can, and does, provides fodder for creative, commercial activity. Not only did Broadview Press argue against term extension, they recommended “that Canada protect or reduce the length of copyright term to be no more than ‘life of the author plus 50 years’.” 

The government is accepting submissions on the topic of copyright term extension until March 12, 2021.

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