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    The Anti-Copyright Hyperbole Fails to Sway the Canadian Government

    • 02.05.2022
    • By Hugh Stephens
    Hugh Stephens Blogs

    Call it a victory for common sense. The Canadian Budget Implementation Bill, which includes needed amendments to the Copyright Act to implement Canada’s CUSMA treaty commitment to extend its term of copyright protection to bring it into alignment with its major trading partners, has now been tabled. The legislation takes the sensible and straightforward approach of amending the duration of copyright protection in Canada from life of the author plus 50 years (“life plus 50”) to “life plus 70” without the interposition of new and burdensome registration requirements called for by copyright opponents. The new term will apply to all works under copyright at the time of proclamation of the legislation which, according to the terms of the CUSMA, must take place before the end of 2022.

    In the lead up to the tabling of the bill, we have been inundated with tendentious and misleading information from many of the usual suspects about the supposed harm of extending Canada’s duration of copyright protection. The anti-copyright hyberbole machine has been in overdrive. As much as I am tempted to ignore this flood of verbiage since the sensible decision has now been taken by the government—and lest I give the attacks on copyright greater credibility that they deserve– I cannot resist the opportunity to present an alternate view.

    Recall that in the CUSMA (aka the USMCA), the new NAFTA 2.0 agreement that went into effect on July 1, 2020 Canada agreed, as part of the overall CUSMA package, to extend its term of copyright protection to “life plus 70”, the same term that is in effect in the United States, the EU, the UK, Japan, Australia—more than 80 countries around the world. It is a revision to the “life plus 50” minimum established by the major international copyright treaty, the Berne Convention, to which both Canada and the US belong. Canada agreed to take this action no later than 2.5 years from the entry into force of CUSMA, which was July 1, 2020. There is thus a degree of urgency to get this piece of legislative homework completed before the end of the year, which no doubt explains why the necessary Copyright Act amendments have been appended to the 2022 omnibus budget bill. The budget must pass or the government will fall, and with the “confidence and supply” agreement signed between the NDP and the Liberals, it is virtually guaranteed that the budget implementation bill will be approved by Parliament. The Copyright Act amendments will go along for the ride.

    So, if copyright term extension is going to happen, why all the fuss? University of Ottawa law professor Michael Geist has been leading a campaign to try to convince the government to insert a major road-bump in the way of copyright extension implementation. He has advocated for the imposition of a copyright renewal registration requirement once the initial term of “life plus 50” expires, a move that no other country has ever undertaken. And for good reason. To require rights-holders to register their copyright in order to access the full term of protection to which they are entitled would mean establishing a bureaucratic process for registration and maintaining a registry of copyright renewal, putting the onus on users to try to determine if a work had been renewed (and was still protected by copyright) or not. It would also put a burden on rights-holders to renew within the short window when the Berne Convention minimum term of “life plus 50” approaches expiration. It is a “really bad idea” as I wrote a couple of weeks ago. No doubt major corporations would have the resources to do this, but many individual rights-holders (such as the estates of deceased authors) would likely fail to take the requisite action in the required time-window.

    Apart from the regulatory burden, it is very likely that imposition of a registration requirement would be a violation of Canada’s commitments under the Berne Convention. It is a cardinal principle of Berne, dating back to the original iteration of the Convention in 1886, that copyright be conferred without any formalities of registration provided that a work meets other requirements establishing copyright. To try to convince the government to take a counter-intuitive action by instituting a copyright renewal registration requirement that would not only contravene Berne, but which would result in making it as difficult as possible for rights-holders to access the benefits of a provision agreed to in a bilateral trade treaty, Prof. Geist has trotted out arguments old and new against term extension.

    In one recent blog, we are given lists of public figures whose works will remain under copyright protection for an additional twenty years when the extension goes through. “Historians will lose public domain access to the works and papers some of Canada’s most notable leaders and figures of modern times, including leading Prime Ministers, Premiers, First Nations leaders, and Supreme Court justices,” he says. He rightly notes that these people (the list includes Joey Smallwood, John Diefenbaker, Tommy Douglas and a number of others), helped shape a nation. All true. But then he adds, “To withhold their works from the public domain for decades represents an enormous collective loss to our culture and heritage.”

    What? Haven’t their papers been available to researchers for years? Haven’t multiple books and studies been written about these personalities? I did a quick internet search on just Smallwood and Diefenbaker and came up with more than a dozen works on each, including autobiographies. Has the fact that their writings have been subject to copyright protection prevented research and publication of subsequent works about their careers? It doesn’t seem so. The entire argument is based on the false premise that a work not in the public domain is a work not accessible to researchers, the public, libraries or anyone else. In fact, the existence of copyright provides the incentive to produce the works in the first place, and in many instances to incentivize reprints. Geist propounds the same fallacious argument with respect to Canadian authors. He provides a list of “Canadian authors and scholars whose work will be lost for a generation”. This list includes Margaret Lawrence, Marshall McLuhan, Northrop Frye, Gabrielle Roy and so on. How will their works “be lost”? I am scratching my head.

    The only parties to whom these works will be “lost” will be the republishers, publication houses that specialize in printing public domain works. One such entity is Broadview Press, quoted by Dr. Geist in one of his blogs, and a consistent opponent of extending the term of copyright protection in Canada. Why? Because Broadview has made a business of reprinting books that are still under copyright protection in other countries, such as its Canadian edition of the Great Gatsby, and selling them in Canada in competition with “authorized” editions. There is nothing wrong with that but let’s be clear as to motivations. I wrote about Broadview’s opposition to copyright term extension back in 2020. Copyright Term Extension in Canada and the Interesting Case of Broadview Press: Is it “Playing the Victim” or Just “Playing the Game”? Because Canada has a shorter term of protection, F. Scott Fitzgerald’s work fell into the public domain in Canada before it did in the US. Broadview either did not want to pay for the rights to reproduce the work, or perhaps was not able to licence the work from the Fitzgerald estate, and so it produced its own Canadian edition in 2007. (This edition was copyrighted, by the way, in the name of its editor, Michael Nowlin). This edition could not be sold in the United States until Fitzgerald’s works entered the public domain in that country on January 1, 2021.

    I will concede that an extended term of copyright protection does not favour the business model of publishing houses that specialize in printing well known works once they enter the public domain, but I would argue that this does no harm to the public interest. Public domain works are in many cases no cheaper than comparable works still under copyright protection. While publishers of public domain works don’t have to acquire the rights to reprint a work, that doesn’t mean that they don’t have costs to cover. What is not paid to license a work can be added to their margin, as long as the book price remains reasonably competitive. The return provided to a rights-holder by copyright protection is just as likely to incentivize the printing of new editions as the free ride for some publishers from a book entering the public domain.

    Numerous studies have been conducted on the impact of copyright term extension on public welfare. At best, the results are inconclusive. Dr. Geist has repeatedly quoted a report published in New Zealand in 2009 that purported to show that if New Zealand extended its term of protection by an additional twenty years, it would cost the New Zealand economy NZ$55million annually in lost economic welfare as royalties were sent out of the country as payments to foreign rights-holders. However, that report was based on erroneous calculations and has been convincingly debunked. It should be buried once and for all. The economist who reviewed the faulty study done for the New Zealand Ministry of Foreign Affairs and Trade (the study is no longer available on the MFAT website) concluded that rather than a net welfare loss, the New Zealand economy could gain by as much as NZ$150 million per year if its term was extended. Extending copyright in Canada will bring extra protection, and revenue, for Canadian rights-holders from sales of their works abroad.

    Moreover, models that focus exclusively on consumer costs ignore the economic benefits to creators and the overall beneficial impact on the economy. For example, a study Michael Geist likes to quote is a 2013 paper produced by Professor Paul Heald, an economist at the University of Illinois. Geist says that Heald concludes that copyright term extension is a “tax on consumers”. I actually read Heald’s paper and could not find that reference. However, Heald does talk about the retail price of books and concludes that in some instances (i.e. “the top twenty most popular public domain and copyrighted books from 1912-32 under several different measures”), books in the public domain are cheaper than books covered by copyright. But he also says, and I quote, “Buccafusco and Heald (2013) also found that the overall price of thousands of copyrighted and public domain books in a random sample of new Amazon books were the same… In summary, much empirical work remains to be done to test various claims about the costs and benefits of a work falling into the public domain.”

    I may be cherry-picking (and I am not the only one!) but this is hardly conclusive evidence that term extension is a tax on consumers. Even if some books that are copyright protected have a higher retail price, this does not mean that this is an unfair “tax” on consumers. The added cost presumably represents the royalty paid to the author. The lowest price is not necessarily the optimal price from the perspective of the economy. I have used the example of recycling fees to make this point. A product in a container attracting no recycling fee would be cheaper for the consumer than a product in a recyclable container. But is the lowest price the optimal price? The recycling fee is not a tax and has a defined purpose. The same principle applies to the royalties or licence fees paid to authors and rights-holders for copyrighted works.

    So where does all this leave us? He said, she said? Maybe. But what it proves to me is that there is an academic debate about the impact of the public domain on costs and availability of works. Different studies have produced different results. However, to suggest that works not falling immediately into the public domain will be “lost for a generation” is, as the British would say, “bollocks”. The “sky is falling” hyperbole about taxing consumers and locking away works just doesn’t stand up to the light of day. This misinformation was trundled out to try to convince the Canadian government to impose an irrational and unworkable registration requirement when implementing its copyright extension commitment. It didn’t work. In a final frenzied blog post published after the contents of the Copyright Act amendments were made public, Dr. Geist says “Make no mistake: the decision to implement copyright term extension without mitigation measures is the government’s choice.” He is right. Canada is fortunate that the Government of Canada made the commonsense choice of bringing its term of copyright protection into line with that of its major trading partners by simply extending the term, as everyone else to date has done.

    This article was first published on Hugh Stephens Blog