Earlier this year, the Canadian government launched a timid consultation on copyright term extension. After years of rejecting copyright term extension beyond the international law standard of life of the author plus 50 years, the Canadian government caved to pressure from the United States by agreeing to the equivalent of life of the author plus 70 years in the U.S.-Canada-Mexico Trade Agreement (USMCA). With a 30 month transition period to allow for consultation, this represents an opportunity to mitigate against the harms of term extension.
I submitted my response last night and it is posted here. The submission cites a wide range of experts – including Justice Minister David Lametti and former US Register of Copyrights Maria Pallante for the proposition that registration for the additional 20 years is not only permissible under international law, it is desirable. I also include a lengthy appendix of the some of the Canadian authors and leaders whose works will not enter the public domain if term is extended. These include Gabrielle Roy, Marshall McLuhan, Margaret Laurence, Louis St. Laurent, John Diefenbaker, Tommy Douglas, René Lévesque, Jean Lesage, John Robarts, and Bora Laskin.
I summarize the key findings as:
My submission can be summarized as follows:
1. Copyright term extension was rightly resisted by successive Canadian governments because it offers few benefits and raises significant costs.
2. The decision to agree to an extension in the USMCA is harmful policy. A two decade moratorium on new works entering the public domain will have an enormous impact on access to Canadian culture and heritage, create new costs for Canadian education that will run into the hundreds of millions of dollars, and create barriers to digitization initiatives designed to increase access to works for all Canadians from coast-to-coast-to-coast.
3. The government was right to negotiate a transition period and should be actively pursuing so-called “accompanying measures” to limit the harm associated with the extension in the term of copyright. Canada should take full advantage of the transition period with no extension at least until the conclusion of that period.
4. The consultation is wrong to largely dismiss a registration requirement as recommended by the Standing Committee on Industry, Science and Technology in its statutorily mandated review of the Copyright Act. Registration provides an ideal mechanism to allow rights holders to extend the term of copyright for their works, while ensuring that the remaining works enter the public domain consistent with the Berne Convention standard of life of the author plus 50 years.
5. Contrary to claims in the consultation document that registration “raises serious questions in the context of Canada’s international obligations”, there is broad support from leading copyright scholars that such an approach is permissible under international copyright law.
6. The proposed accompanying measures in the consultation document are an inadequate response to the harm posed by term extension. Measures that result in new licensing systems for works that would otherwise remain the public domain under the Berne Convention standard or that involve narrowly tailored exceptions that are not widely available to all Canadians are certainly insufficient and potentially harmful.
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