term extension — redux

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:  

INDU received 13 briefs recommending extending term to life + 70, primarily from the music industry, film/TV, and publishing. 6/x

— Jennifer Zerkee (@jzerkee) February 12, 2021

(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.

Update March 30, 2021

The government agreed to extend the deadline for submissions to this consultation. My submission is here.

Update December 11, 2021

The government has posted all submissions. (Mine in its official capacity is here.)

this day in history

Writing for The Washington Post, Timothy Lee reminds us that 27 October 2013 marks the 15^th anniversary of presidential signature to the Copyright Term Extension Act (CTEA, 1998) of the United States. That act added twenty years to the American term of copyright for all future, and existing, copyrighted works.

Placed against the United States’ constitutional mandate for copyright — “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” — the absence of logic was striking. No length of added time can promote further progress in science or arts from already deceased creators. But prominent copyright holders, notably the Disney Corporation, stood to gain by longer terms for existing works and Congress obliged. Conveniently, entertainment lobbyists could point to developments in the European Union as reason for the American changes; the Europeans had recently implemented a copyright term of life-plus-seventy years.

The clamour to follow international standards for copyright is a relatively recent move on the part of the United States. In its days of nation building the United States took a lax view of international copyright protection; helping itself to authentic English literature effectively fostered both the book industry as well as education of its people.

A new addition to the canon of history of American intellectual property policy is Without Copyright—Piracy, Publishing and the Public Domain, by Robert Spoo; see here for an account by Greg Barnhisel for the Los Angeles Review of Books. Spoo is no apologist for piracy; instead, he brings attention to the way that the word piracy has been constructed, its “typical and uncritical use [is] detached from the legal conditions that permitted and even encouraged it, [giving] a false aura of illegality to a practice…” Spoo focuses on the development of the American publishing sector and its practices of trade courtesies, but his words bring to mind the invective from some contemporary copyright holders concerning lawful exceptions like fair use and fair dealing. Delightful reading as Spoo’s work is, it is disturbing as well; he charts the decline of the American public domain, and a world-wide decline along with it.

Returning to today’s anniversary; as American entertainment products became highly sought after in international markets, the United States saw merit in international cooperation towards intellectual property protection. After a hundred-year delay in joining the Berne Convention (created in 1886, the United States became party to the convention in 1989) the United States sought to instill broader protection of copyright through the Agreement on Trade Related Aspects of Intellectual Property (1994) and later pushed an even more aggressive agenda with respect to the World Intellectual Property Organization (WIPO) Internet Treaties (the text was declared by WIPO in 1996, American ratification occurred in 1999).

The domestic arguments for stronger copyright touted the preservation of American dominance in world markets. In the late twentieth century and early into the new millennium, copyright proponents could rely on little opposition to their claims. This is no longer the case. Earlier this year Jonathan Band and Jonathan Gerafi unambiguously contradicted the claim. In a paper titled Foreign Ownership of Firms in IP-Intensive Industries, posted to InfoJustice.org on 5 March 2013, they give detailed analyses of ownership in the sectors of book publishing, music, motion pictures, pharmaceuticals and more. A few key findings are:

– Four of the “Big Six” publishers, the largest English language trade publishers, are foreign-owned. More than 80 percent of the global revenue of the Big Six is generated by these foreign-owned companies. These foreign-owned companies publish more than two thirds of the trade books in the U.S.
– Four of the five largest STM (science, technical and medical)/Professional publishers are foreign-owned. More than 90 percent of the revenue of the five largest STM/Professional publishers was generated by  foreign-owned firms.
– Only seven of the world’s 50 largest publishers of all categories are U.S.-owned.
– The book publishing industry in Europe has approximately twice as many employees as in the United States.
– Of the top ten best-selling fiction authors in any language whose work is still in copyright, five are foreign. A British author wrote three of the top five best-selling books in the U.S. in 2012.
– Two of the three major record labels are foreign-owned. These two labels have a market share of 59 percent.
– Thirteen of the twenty best-selling recording artists are foreign.
– Of the 50 most popular motion pictures in the United States in 2012, 50 percent were filmed partly or entirely outside of the United States.

If American growth in cultural exports was the reason for expansion of American copyright, a decline in dominance would suggest that it is in American interests to relax their copyright protection and work towards reclaiming their creative zeal. Curiously, a day before Band and Gerafi released their findings, Maria Pallante (Registrar of Copyrights) spoke openly about returning American copyright term to life-plus-fifty-years. Mike Masnick writing for TechDirt covered Pallente’s initial remarks as well as her later formal testimony to United States’ SubCommittee on Courts, Intellectual Property and the Internet. Masnick goes into detailed discussion of her proposals: in agreement that there is need for change but with concern over the approach advocated by Pallente.

Looking back at Lee’s article, he gives a cogent history of the events surrounding CTEA and since. He draws attention to some of those people who sounded the alarm early, those people who spoke up before others were truly aware how deleterious to public interests the give-away of portions of the public domain was. One such advocate was law professor Dennis Karjala, a commentary he wrote in 1996 (rejected by major newspapers) still bears reading today:

The proposed copyright term extensions are a travesty that, if adopted into law, will become a tragedy. They are not based on the public interest but rather on private greed. Only the technical complexity of the issue and the diffuse nature of the public harm allows such proposals to move through the Congress essentially without public debate. They can be stopped, but not by a silent majority, or even a silent supermajority. Opponents of the extensions must be heard by Congress, with voices as loud as those seeking to prolong their parade of royalty welfare checks.

Lee also points out that only five years remain before Mickey Mouse stands again at the threshold of the American public domain, and muses as to whether Disney et al. will try for term extension. Such an egregious move is not out of the realm of possibility, given the financial benefits that will accrue to corporations. But as Lee writes: “One advantage opponents will have this time around is better arguments and evidence.” Indeed, copyright as a subject has a much wider audience than it did in the late 20^th century, with the public more aware of its role as a stakeholder in negotiations. When the copyright amendment process begins in the United States, it can no longer be business-as-usual for content industries.

Related – 29 October 2013 Noah Berlatsky writing for the Atlantic, “Why Are Reading Textbooks So Out Of Date? Blame America’s Copyright Laws.”

A short lived celebration

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.