Update: Also see Canadian law professor Michael Geist’s analysis.
By Timothy Vollmer
Creative Commons Senior Manager for Public Policy
Late yesterday the U.S., Canada, and Mexico reached an agreement on a new North American Free Trade Agreement (NAFTA). The agreement (now rebranded as the U.S.-Mexico-Canada Agreement, or “USMCA”) obligates Canada to increase its copyright term by an additional 20 years if the deal is passed.
Canada currently observes the minimum term of copyright as required by the Berne Convention, which is life of the author plus 50 years. USMCA requires all signatories to agree to a term of at least life of the author plus 70 years.
The extension of already-lengthy copyright terms will discourage new creativity in Canada. It will further prevent Canadians from accessing and using the rich pool of resources in the public domain, which means they can be used free of any copyright protections. Creativity always builds upon the past, and the public domain is our shared cultural commons used to create new works of art and science. Like a sedimentary rock, the “Commons” in Creative Commons starts with the public domain. Fulfilling our mission of protecting and expanding the public domain is why we’ve developed tools to better mark and dedicate content to CC0. We continue to advocate for changes to copyright policy that promote a robust and accessible public domain.
During the opaque renegotiation of NAFTA, we urged negotiators to ensure that the copyright provisions in the agreement should not be expanded to create new (and likely more onerous) copyright rules. We worked with international groups to release the Washington Principles on Copyright Balance in Trade Agreements to restate the obvious fact that further copyright term extensions make no sense: “there is no evidence to suggest that the private benefits of copyright term extensions ever outweigh the costs to the public.”
The end of copyright protection in a work allows for the production of new works. That is why term length is a balance to be struck — and one which Canada has handled well. Ian Fleming’s literary character James Bond, for example, entered the public domain in Canada on January 1, 2015. This allowed Canadian authors David Nickle and Madeline Ashby to produce License Expired, an anthology of unauthorized 007 stories for ChiZine Publications.
The introduction of the life +70 year copyright term is particularly damaging for Canada, which is in the middle of a national copyright reform process. Before these negotiations took place, an increase in copyright term was not on the agenda for the Canadian reform. Last year, Canadian ministers responsible for the copyright review indicated some support of the public domain, stating that an updated law “should ensure […] that users benefit from a public domain.” In our submission to the public consultation, we wrote:
We believe that Canada has been right to push back against any extension of copyright term or expansion of the scope. The copyright term of life of the author + 50 years is already far too long. Extremely long copyright terms prevent works from entering the public domain, where they may be used by anyone — including CC licensors — without restriction as the raw material for additional creative works.
If the USMCA is adopted, it will clearly violate the direction of the Canadian copyright reform, which decided to leave the existing term as is.
The USMCA text shows the powerful hand of U.S. copyright interests. A copyright term extension was floated in earlier versions of the Trans-Pacific Partnership, and Creative Commons joined with dozens of other organisations to push back on it then. After President Trump withdrew the United States from the TPP last year, many of the most damaging intellectual property provisions were suspended, including any call for a copyright term extension. But USMCA shows a swing back in the other direction, almost surely a result of U.S. pressure to ratchet up copyright protection and enforcement measures.
There are countless competing interests in a massive new trade agreement like the USMCA, and this concern is only one. But from a copyright perspective, it is discouraging to see the inclusion of yet another ill-advised term extension, especially at a time when Canada is actively debating a more progressive future for its own copyright law.
There is no reason for any more copyright term extensions, which would harm the commons and are contrary to the policies and values supported by the Creative Commons community.
Reproduced via Creative Commons 4.0 from CreativeCommons.org. Also see Canada capitulates on copyright in new USMCA deal, experts say, from the Toronto Star.
Photo via Wikipedia.
I hate 70-year copyrights, but it makes no sense for two countries that are next to each other and trade so much to have two different terms. That’s particularly true given that the U.S. creates far more copyrighted material than does Canada. The difference gives Canada a free ride on our work, which is a particularly sore point with Trump.
What actually ticks me off is the “life plus” rather than fixed period following publication. For big name authors, you know when they die. But for all the rest, you can end up with an uncertain period that’s decades long, with no way of knowing when it expires and no way of finding out how to contact them. And its the Europeans and Berne that stuck us with that life-plus madness.
I’m actually surprised that lucrative authors haven’t played games with that life-plus scheme. James Paterson should co-author with a dozen or so healthy children, letting them tweak his book here and there. If even one lives to be a hundred, that’d add the better part of a century to his Berne copyright and the income of his heirs.
I agree that copyright extension should no be so long after the original copyright holder dies. It allows businesses, companies, and corporations with existence exceeding that of a human to lock up profits for itself.
There are numerous abuses of the copyright laws other than copyright extensions in my opinion. Extending copyright protection will extend these abuses.
I would normally end my post as above, but to give examples of abuse for those who might be skeptical of my claim, read on:
1. Edward C. Barroll was an American music composer of rags in the 1920s and 1930s (as well as being a journalist). He composed many rags. He intentionally did not copyright any of his compositions because he wanted them to be available to all. But a music publisher copyrighted all Barroll’s sheet music compositions and never published any of them (save the “Piggly Wiggle” rag that the Seven Brown Brothers made popular in the 1920s).
Today Barroll’s rags are unknown in the history books of ragtime — even his name is unknown. The only repository of Barroll’s rags is at a single library. The library is prohibited to make any copy because of copyright laws.
(Search for Edward C. Barroll. — at gwu.edu).
2. I know people who look for sheet music of composers whose publishers overlook the time of renewal of the copyright. When they find same, they renew the copyright in their own name. These people have no relationship to the composer, yet they secure any royalty for themselves via their copyright. Not only do individuals that I know do this, so do seemingly reputable publishers do this as I have experienced personally.
It is more difficult today to find an expired copyright because of computers. Uncopyrighted material is still available for copyright in ones own name.
I can give more examples of what I consider copyright abuse.
My contention: copyright abuse is facilitated if the period of copyright exceeds the lifetime of the creator and all the lifetimes of his/her relatives of the same generation, or even second generation. Plus, the fruits of the original creation ought not to be assigned to a third party for so long a time; and that third party ought not to be able to suppress publication of the manuscripts that it has acquired in order to make its competitors to be at a disadvantage, or to prevent competition.