The government’s surprise decision to include copyright term extension for sound recordings and performances in this week’s budget is being painted by the music industry as important for Canadian artists. But sources suggest that the real reason for the change is the result of direct lobbying from foreign record labels such as Universal Music and Sony Music, who were increasingly concerned with the appearance of public domain records from artists such as the Beatles appearing on store shelves in Canada. As discussed in this post, Canadian copyright law protects the song for the life of the author plus 50 years. However, the sound recording lasts for 50 years. That still provides decades of protection for record companies to profit from the records, but that is apparently not long enough for them.
Earlier this year, a Canadian company called Stargrove Entertainment began selling two Beatles records featuring performances that are in the public domain in Canada. The records were far cheaper than those sold through Universal Music and were picked up by retail giant Walmart, who continues to list the records on their website (Can’t Buy Me Love, Love Me Do). There were additional titles featuring the Rolling Stones, Bob Dylan, and the Beach Boys. Some of the titles are still available for sale through Walmart.
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On World Book and Copyright Day, it is worth noting how Graham Henderson, the President of Music Canada (formerly the Canadian Recording Industry Association) characterized the government’s decision to extend the term of copyright in sound recordings and performances:
With each passing day, Canadian treasures like Universal Soldier by Buffy Sainte-Marie are lost to the public domain. This is not in the public interest. It does not benefit the creator or their investors and it will have an adverse impact on the Canadian economy.”
This statement raises several issues. First, it should be noted that the song Universal Soldier by Buffy Sainte-Marie is not in the public domain nor will it be entering the public domain for decades. As the songwriter, Buffy Sainte-Marie still holds copyright in the song and will do so for her entire lifetime plus an additional 50 years (Howard Knopf further explains the issue of copyright term in songs in this post).
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Randy Bachman, the well-known Canadian musician, found himself embroiled in a public fight with Prime Minister Stephen Harper last year when Harper used his song “Takin’ Care of Business” as a theme song for a major speech. Bachman said he probably would not have granted permission to use the song, since “I don’t think he’s taking care of business for the right people or the right reasons.” Bachman was singing a different tune yesterday as the government released its budget and apparently took care of the right people – record companies. Despite no study, no public demands, and the potential cost to the public of millions of dollars, the government announced that it will extend the term of copyright for sound recordings and performances from 50 to 70 years. For that giveaway, Bachman was quoted as saying “thanks for the term extension PM Harper, you really are taking care of business.”
While the government lined up industry supporters to praise the term extension, the decision is unexpected and unnecessary (it also announced that it will accede to the Marrakesh copyright treaty for the blind, but that should not require significant domestic reforms). The music industry did not raise term extension as a key concern during either the 2012 copyright reform bill or the 2014 Canadian Heritage committee study on the industry. Experience elsewhere suggests that the extension is a windfall for record companies, with little benefit to artists or the public. In fact, many countries that have implemented the extension have been forced to do so through trade or political agreements, while signalling their opposition along the way.
Canada will extend term without any public discussion or consultation, yet other studies have found that retroactive extension does not lead to increased creation and that the optimal term length should enable performers and record labels to recoup their investment, not extend into near-unlimited terms to the detriment of the public. For Canadian consumers, the extension could cost millions of dollars as works that were scheduled to come into the public domain will now remain locked down for decades.
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The linkage between political funding and the major copyright lobby groups is not a new issue as for years there have been stories about how groups like the MPAA and RIAA fund politicians that advance their interests. Sites like OpenSecrets disclose the spending, though it gets complicated given how much money comes from individual companies or corporate executives. While those sites tell the story of how much, the recent leak of Sony emails reveal the how. They demonstrate the coordinated efforts by the MPAA to raise hundreds of thousands of dollars for certain politicians with direct efforts from MPAA CEO Christopher Dodd to solicit donations from among the Hollywood studios. This will not be news to those who have been following Lawrence Lessig in recent years, but the matter-of-fact tone of these emails is still revealing.
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The Nova Scotia government has been embroiled in a high profile controversy for the past week following its decision to slash tax credits available to film and television production in the province. The decision sparked an immediate backlash from the industry, which staged a major protest last Wednesday across from the legislature in Halifax.
While the government’s approach is certainly open to criticism – abruptly cutting the tax credits without warning may force the cancellation of long-planned productions this summer – the larger question of whether it should provide massive tax relief to the film and television industry is an important one. Eliminating or cutting the programs is politically difficult given the star power associated with film and television production, yet a growing number of studies have found that film and television tax credits do not deliver much bang for the buck.
My weekly technology law column (Toronto Star version, homepage version) notes that the widespread use of film and television production tax subsidies dates back more than two decades as states and provinces used them to lure productions with the promise of new jobs and increased economic activity. The proliferation of subsidies and tax credits created a race to the bottom, where ever-increasing incentives were required to distinguish one province or state from the other.
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