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TPP Copyright Extension Would Keep Some of Canada's Top Authors Out of Public Domain For Decades

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Monday January 09, 2012
Last week I posted on the government's consultation on joining the Trans Pacific Partnership negotiations and its potential effect on Canada's public domain. According to a leaked draft of the proposed intellectual property chapter, the TPP would require countries (such as Canada, New Zealand, and Japan - all current or potential TPP members) that meet the international copyright term standard of life of the author plus 50 years to add an additional 20 years to the term of protection. The extension in the term of copyright would mean no new works would enter the public domain in those countries until at least 2033 (assuming an agreement takes effect in 2013).

While the change would obviously delay all works slated to enter into the public domain by 20 years, it is worth noting the many important authors who would be immediately affected since their works are scheduled to become public domain in the 2013 - 2033 period. I'll identify some of the non-Canadian authors in a future post (the list includes Robert Frost, Aldous Huxley, CS Lewis, TS Eliot, John Steinbeck, JRR Tolkein, and Ayn Rand), but the impact on Canadian culture and history is worthy of particular attention.

The list of Canadian authors whose work would be blocked from entering into the public domain includes:

  • Gabrielle Roy, considered one of the most influential Canadian authors in history. Her book The Tin Flute won multiple awards and laid the foundation for the Quiet Revolution in Quebec in the 1960s.
  • Donald Creighton, widely regarded as one of Canada's most influential historians, with a major two volume biography on Sir John A. MacDonald that both won Governor General's awards.
  • Marshall McLuhan, one of the world's leading media theorists.
  • Gwethalyn Graham, who twice won Governor General's awards and who became the first Canadian to have a novel appear on top of the New York Times best seller list.
  • Hubert Aquin, a leading Quebec author, whose novel Next Episode, is regarded as a classic of Canadian literature.
  • Ethel Wilson, regarded as one of the leading authors from B.C. The province's top fiction award is named after her.
  • E.J. Pratt, regarded as Canada's foremost poet of the first half of the 20th century.
  • Susan Wood, an award winning science fiction author, who received three Hugo awards.
  • Winifred Bambrick, who won the Governor General's Award for fiction in 1946.
  • Winthrop Pickard Bell, one of Nova Scotia's leading historians.
  • Thomas Costain, who was a best selling author of historical novels.
  • Ralph Allen, an award winning journalist, who won wrote several books on Canadian history.
  • Hugh Garner, who won a Governor General's award for short stories in 1963.
  • Germaine Guèvremont, who won a Governor General's award for fiction in 1950.
  • A.M. Klein, one of Canada's best known poets and Governor General award winner.
This list is obviously a tiny fraction of the authors whose works would be prevented from entering the public domain for decades under the TPP plan. Given the potential to make those works more readily accessible to new generations once they enter the public domain, extending the term of copyright as potentially required by the TPP would have a dramatic negative effect on access to Canadian literature and history. Looking ahead, the likes of Margaret Laurence and Robertson Davies would be similarly delayed for 20 years.

Now is the opportunity to help preserve the public domain in Canada by speaking out against TPP copyright provisions that would extend the term of copyright or impose even stricter digital lock rules. The consultation is open until February 14, 2012. All it takes a single email with your name, address, and comments on the issue. The email can be sent to consultations@international.gc.ca. Alternatively, submissions can be sent by fax (613-944-3489) or mail (Trade Negotiations Consultations (TPP), Foreign Affairs and International Trade Canada, Trade Policy and Negotiations Division II (TPW), Lester B. Pearson Building, 125 Sussex Drive, Ottawa, Ontario K1A 0G2).
Comments (34)add comment

pat donovan said:

re-treads of last coment
year of the vulture: re-run world.

(re: extension of copyright to European 70 year standards.)

dead men and zombies on the best seller's list.

almost a century of profiteering for orphan works, re-runs and monoculture.

betcha it's made compulsory too.

iconoclasts, history and other sanitized data sets to be made
available to interested parties.


this standard is retrograde, retarding and STUPID. it shouldn't pass.


packrat
January 09, 2012

end user said:

...
You know the only solution here is revolution. NO politician will take notice until the people stand up with pitchforks and molotov cocktails. I'm serious gov and corporation wont take notice until their offices are burning. We have way more important issues with Canada and the world yet every week there seems to be some new this and that bill/treaty that wants to modify copyrights or restrict the internet. How many of these do we need?

In the last 6 months I've downloaded 1tb+ of movies. If I'm gonna be treated like a kid with all these new anti counterfeiting/copyright laws I might as well act like one and infringe copyrights left and right.

Luckily there's still a second hand market for dvd's, cd's and records so at least I can support local businesses and get my dvd fix for $2 each which I did this week when I bought about 14 dvd's from a local pawn shop.
January 09, 2012

Degen said:

...
Please actually explain "the impact on Canadian culture and history." I can walk less than a block from where I am currently sitting and access a copy of work by each and every author listed above. Who right now does not have "access" to Robertson Davies or Margaret Laurence?

The conclusion that term extensions harm the public domain is a fallacy (and a standard free-culture scare-tactic) - completely insupportable unless one only sees value in the public domain if it stops original creators from profiting solely from their work. In fact, the suggestion that a term extension is harmful implies that any term is harmful.

Our common culture is not reduced by copyright terms - new work is always being produced, old work is available and accessible, the culture is continually growing and no-one is shut out of using cultural products.

Copyright terms, of whatever length, direct earned revenue to those who have earned it - the original creators. Terms have absolutely no negative impact on access and only a positive impact on growing the culture. In terms of cultural economy, the need to negotiate rights deals has a positive impact.
January 09, 2012

Alex said:

...
To Degen: Our common culture is made richer by the availability of derivative works. For example Pride & Prejudice & Zombies, or a new version of War of the Worlds. These are possible because the original sources are in Public Domain.

A lot of culture is actually based upon other stuff. For example Rachmaninov's variations on a theme of Paganinni. The original theme is almost unknown, but the variations are fantastic.

If you prevent things from getting into the public domain, then you are preventing these new works.
January 09, 2012

Albin said:

Translation and Copyright Extension
Nice list of English Canadian writers, but in many ways it appears to me the felt impact will be extraordinary restrictions on translating works from countries that join the treaty. As it stands, public domain works are open to free and competing efforts at translation, mainly from French to English and vice versa in this country, but in the new global reality other languages as well. While under copyright, enforced by the commercial interests that would profit from extended protection, the best intellectual and cultural works of the original language would be stuck with a single authorized translation in each language. It would be necessary to obtain the holder's permission to translate, and that would be contracted for just once. This authorization would put a stopper on any future competing translations during the life of the copyright. Those future competing translations often far exceed the "authorized" translation in quality and market success for the original work.
January 09, 2012

Byte said:

The Public Domain
Degen writes: "The conclusion that term extensions harm the public domain is a fallacy (and a standard free-culture scare-tactic) - completely insupportable unless one only sees value in the public domain if it stops original creators from profiting solely from their work. In fact, the suggestion that a term extension is harmful implies that any term is harmful. "

If we define the Public Domain as the currently available collection of works for which the copyright term expired, how can you maintain the suggestion that anything that keeps works from entering the Public Domain does not harm it? Is a dollar today the same as the promise to be given a dollar twenty years from now?

Also note that the authors on the list are all long dead and buried (or had their corpses otherwise disposed of). I have news for you. They are no longer profiting solely from their work. That's one of the downsides of being dead.

You are also incorrect in assuming that any copyright term hurts the Public Domain. A healthy Public Domain needs a steady influx of new works; an environment that stimulates the creation -and what's more important: publication- of new works is therefore beneficial to the Public Domain.

This simplifies to the same old question: what is the optimal copyright term that balances the interests of creators and the interests of the public?
January 09, 2012

Crockett said:

@Degen "In fact, the suggestion that a term extension is harmful implies that any term is harmful."
As does the suggestion that if an extension is beneficial that any is beneficial?

To who and for whom? Certainly not the dead author.

There is balance Mr. Degen, and I'm not stating what that specific balance is, but it's likely not the lead weight on your end of the scale.
January 09, 2012

Marchetto said:

...
Canadian composers, performers, and music scholars whose works would remain out of the public domain include the following: Healey Willan, Sir Ernest MacMillan, Claude Champagne, Glenn Gould, Arnold Walter, Mieczyslaw Kolinski, Boyd Neel, and Marius Barbeau.
January 09, 2012

Degen said:

...
Gabrielle Roy "layed" the foundations of the Quiet Revolution? Busy lady.

While it pains me to think we might have to wait another twenty years for "The Tin Flute & Zombies," I think Canadian culture will survive.

It's true that "a lot of culture is actually based upon other stuff" - in fact, I think you'll find that all stuff is based upon other stuff. For instance, there is a movie called The Tin Flute that borrows heavily from Roy's novel of the same name. Despite the fact that The Tin Flute was not in the public domain, this movie somehow still managed to get through the terrible "block" on Canadian culture, get made, and provide important jobs and revenue to Canadian artists, as well as yet more content for Canadian cultural consumers.

Whoever the grad student is whose studies have been co-opted to provide content for this blog - you need to proofread better. Also, understanding how copyright works would help.
January 10, 2012

Ki said:

@Degan
That's nice and all, but it doesn't really paint a good picture why the term needs to be extended for 20 years for, really, no reason at all. All it does it help the publishers/rights holders since the creator is long dead.

Plus your thing with the movie there, rights would have need to have been negotiated. That means that there needs to be some chance that the rights holder thinks that it's going to make money, which means something like this (http://www.torontoreviewofbooks.com/2012/01/chris-stevens-on-alice/) would probably not happen to any of the works coming out. Someone want to do a low budget play based on any of those works to help to spread the story they told? Going to be harder since the rights holder will probably want money for it.

So really, it doesn't help anyone to have things locked up, but it certainly does free things to allow people to use the works to build on them without the need for a larger budget to have them become public domain earlier.
January 10, 2012

Degen said:

...
Since you're making surreptitious corrections to the embarrassing typos, you might want to go through that whole list of authors again. I don't think Gwethalyn Graham ever won a Governor "Genera's" award, let alone two Genera's.

Ki, so now it's not just DRM that's a "lock," it's copyright as a whole that "locks" things up? There is nothing about copyright that would stop Chris Stevens from doing his Alice work for books not currently in the public domain. The fact that he would have to deal with the creator is not a "lock," it's an economic feature beneficial to society as a whole. You know how an economy works, right - goods and services exchanged for money? Also, since he's clearly brilliant, he could make up his own stories and characters and then not have to deal with other creators.

Thanks though for making explicit the often hidden feature of free culture - it's about the money. You said it yourself - paying the rights holder makes free culture "harder." Another truism - work takes effort.
January 10, 2012

Darryl said:

@Degen
John, I am confused why you take such great offence when anyone mentions your desire for perpetual copyright. You certainly make that desire quite obvious whenever you talk about copyright terms.

Term extension will injure the public through restricted access and higher prices. The vast majority of which will go to multinational corporations. Not authors.

Term extensions will prohibit others from reusing works even when the owners have no interest in using them, themselves.

Term extensions, especially without mandatory copyright registration, will make an already large orphan works issue into a catastrophy.

A good book which I would recommend to everyone (Especially Degen) is Bill Patry's new book "How to fix Copyright". It actually explains quite well, many of the issues with term extension. Maybe I'll email copies to a few MPs who could benefit from some edification. Not sure if it is available for kobo yet. I had to buy the kindle version then strip the DRM in order to read it. It was worth the cost and effort though.




January 10, 2012

Scotsmen said:

@Degen
Degen,

If ye dost fail to remember the lesson of Donaldson vs Becket, the-then-Supreme-Court of Britain ruled that copyright is the exclusive right to control the creation of copies, granted to the creator of a work by the state for a limited period of time in exchange for the creative work.

I reckon that the verdict hardly made the world a less creative place in limiting copyright to 28 years. I'll bet you all my buttons that authors were neither less prolific nor poorer for the verdict, and the amount of creative works produced was greater than before the verdict.

Arr!

I suggest ye go and read Piracy; Intellectual Property Wars from Gutenberg to Gates.

Read over the Scotland section.

The world has not suffered with a low copyright term. Conversely, it has suffered with extensions.
January 10, 2012

Degen said:

...
Did I say I was offended? Did someone say I wanted perpetual copyright?

The only "catastrophy" here is the spelling skill of free culture.

I know you can't prove any of your assertions about injuries and prohibitions so I won't bother to ask, but I do have to laugh at the bogeyman of "multinational corporations" trotted out in the same comment directing us all to the opinions of Google's lawyer.

While you're sending books to MPs, here are a few you might want to send to prove just how unavailable, injurious and prohibited they are:

http://www.chapters.indigo.ca/books/The-Tin-Flute-Gabrielle-Roy/9780771098604-item.html?cookieCheck=1
http://www.chapters.indigo.ca/books/John-Macdonald-Young-Politician-Old-Donald-Estate-of-Donald-Creighton-P-B-Waite/9780802071644-item.html?ikwid=donald+creighton&ikwsec=Books
http://www.chapters.indigo.ca/books/Understanding-Media-Extensions-Man-Marshall-McLuhan-Lewis-H-Lapman/9780262631594-item.html?ikwid=marshall+mcluhan&ikwsec=Books
http://www.chapters.indigo.ca/books/Earth-and-High-Heaven-Gwethalyn-Graham/9781896951614-item.html?ikwid=gwethalyn+graham&ikwsec=Books

etc.
January 10, 2012

Degen said:

...
By the way, which Canada is being refered to in the title to this blog posting? "Some Canada?" How many are there?

Gosh, the University of Ottawa must be so proud.
January 10, 2012

Darryl said:

...
"Did someone say I wanted perpetual copyright? "

You mean other than yourself I suppose.

"I know you can't prove any of your assertions about injuries and prohibitions so I won't bother to ask"

Come on John. Where is your curiosity?

Here are some links to get you started.

http://www.copyright.gov/orphan/comments/reply/OWR0037-Brooks.pdf

--QUOTE--
As noted in my earlier Comment (OW0579), pre-1972 recordings presently fall under state law. Two points can be made in that regard. Even for the most recent period studied, 1960-1964, rights holder made available only 33% of the historic recordings they controlled. This suggests that substantial numbers of important recordings from the 1970s and 1980s are unavailable as well.

Second, unavailability of recordings from rights holders becomes an even
greater issue for periods prior to 1972, increasingly so as you go back in time. The earliest periods are in some ways the most crucial in terms of the need for preservation and cultural understanding, and yet suffer the most from enforced unavailability. I believe this is an issue the Copyright Office must address.
--UNQUOTE--

http://ec.europa.eu/information_society/activities/digital_libraries/doc/reports_orphan/anna_report.pdf

--QUOTE--
The cost of clearing rights may amount to several times the cost of digitising the material. As cultural institutions normally do not have the resources or expertise to conduct rights clearance for digitisation projects, specific funding is always necessary, in particular for large
scale digitisation projects. In the absence of efficient sources of rights information to works (such as book rights registries), it can take from several months to several years to clear permissions for only a limited numbers of works. Sometimes it is impossible to clear the rights at all.
--UNQUOTE--

This author also presents many examples of 100's of thousands of Euros spent to clear the rights on works. Not the cost of the license mind you. Just the cost of doing the leg work before licensing. Costs which would not be required if we had a stronger public domain and mandatory copyright registration.


As for your incredibly small list of works which are available. It is a drop in the bucket compared to the ones that are not, as both of these links above make clear.


Also, I realize you are a cultural elitist who has somehow formed the opinion that if a work is not picked up by one of the incumbent gatekeeper publishing companies, then it is a work which no one wanted anyway and will not be missed. Putting that aside, I think one only needs to look at any fanfiction site to see there is a lot of creative work which IS LOST because of copyright monopolies. Here is a list of authors which even fan fic authors can not derive works from.

http://fanlore.org/wiki/ Professional_Author_Fanfic_Policies#Authors_Who_Discour
age_Fanfic_About_Their_Work

Indeed any extension of copyright terms will be a serious blow to the public domain, as all of the above clearly demonstrates.


January 10, 2012

Degen said:

...
I see, so work that is never made is now considered "lost." Also fascinating is the assertion that if the person (or large for-profit corporation) who wants to digitize content without bothering to get permission cannot do so, then the content will never be digitized and our culture will suffer.

These logical acrobatics fit with most else asserted by free culture.

Good luck with your legal career, Darryl. You certainly have a good teacher.
January 10, 2012

Crockett said:

Pork barrel politicking?
@Degen "Whoever the grad student is whose studies have been co-opted to provide content for this blog..."

John, I think I need to call you on your somewhat conspiratorial comments. You may like to paint other posters here as illiterate law interns beckoning at the behest of Prof. Geist, but seriously I'm sure you don't really believe that. I for one live on a rural farm in BC, and while I do deal with swine they are not the kind you usually find in court.

But still, you are most welcome in my opinion, to continue discussing important issues (even the pressing issue of spelling corrections) on this free and open blog.
January 10, 2012

Darryl said:

wow
You're grasping a straws now John in order to maintain your willful ignorance.

"I see, so work that is never made is now considered "lost.""

YES JOHN. EXACTLY!

And if you can't see this then you're understanding of culture is only as deep as homogeneous muck which industries try to pass off to us as culture.

It is odd that you can't see this though. Don't you subscribe to the "copyright is the motivator" argument for part of your justification of copyright? Without copyright there would be fewer works produced and wouldn't that be a loss too?

Digitization often is the only mechanism with which to circulate old creative works. Large numbers of works not being circulated within society which otherwise easily could, I would say is a pretty good definition of "culture will suffer".

Finally, we are not talking about people not wanting to get permission, we are talking about the tremendous cost (of lawyers) to get that permission if it is even possible. This is a huge cost which the original creators see nothing of. No one wins here except the lawyers and big media, yet somehow you support this?

I am not looking to be a lawyer, but you make it pretty obvious that my understanding of the law is a magnitude greater than your understanding of either law or culture.
January 10, 2012

Ki said:

@Degen
Well Degan, if there's someone who only cares about the money here, it's certainly you based on your comments here.
January 11, 2012

Degen said:

...
Ah yes, the classic free culture gambit. "I know you are, but what am I."

Never gets old.

Darryl - "you're" is a contraction of "you are." The possessive form is spelled "your." You might want to check Strunk & White.

January 11, 2012

Darryl said:

...
Yup, when you can't muster any sort of real argument, go after the spelling. Eh John?

Guess that's the real reason you kicked us all off your website. Must get pretty embarrassing after a while.

Isn't nice nice you can still come here to get your rational walloping without embarrassing your self in front of your friends.
January 11, 2012

Degen said:

...
It's always the folks with the worst grasp of spelling and grammar who suggest these things aren't important. Just like it's always those with the worst grasp of copyright who attack it. Darryl, if you can't even express your opinion properly, how can anyone imagine you've formulated it with any care?

"Isn't nice nice"? What does that mean, exactly?
January 11, 2012

Darryl said:

...
John, it's the comment section of a blog for Christ sake. Excuse me for not getting my editor involved.

Funny. When you think you have a good argument, you don't let your opponents spelling get in the way of you expressing it. Now you are doing everything you can to avoid making an argument which you know you can't win. Admit it. You have no logical reasoned rebuttal to the examples I presented above. Sucks to be you.

My brother-in-law wears a T-shirt which has a picture of a monkey covering his ears, and saying "I see your lips moving, but all I hear is bla bla bla". You're that monkey.

January 11, 2012

Ki said:

@Degen
"Ah yes, the classic free culture gambit. "I know you are, but what am I." "

I just calls them as I see them. Seeing as you didn't really answer my question on who benefits from keeping the things out of public domain for longer since the authors the article is talking about here are dead, so its certainly not the creators. You pointed out some vague economic things about someone needing to get money for the work for someone else to be able to use it, so I assume in that case you are all just for the money since you seem to ignore the benefits that things being in the public domain bring. Like small creative individuals who don't have the money to go and get the rights to use a work to develop a new creative one based on it and possibly enrich culture further that also give economic gain. Funny that.

Plus, funny thing about public domain books, many are still sold for profit by publishers. It's almost like it being in public domain still means that people can make money off the original work as well, just not the creator necessarily. Especially books since, you know, the creator is dead.
January 11, 2012

Degen said:

...
Darryl,

I think you mean "for Christ's sake." It's important to use the apostrophe when attempting to indicate possession.
January 11, 2012

Darryl said:

...
Yeah, that's right John. You know I'm glad you're here to point all this stuff out. All those people who come here to learn more about better writing would simply not get as much value out of this site without your input.

John, is that an elephant standing beside you right now? Just wondering.
January 11, 2012

Ki said:

@Darryl
Wonder if he got the rights to use that elephant?
January 11, 2012

Crockett said:

Oh, Brother ...
@Degen "It's always the folks with the worst grasp of spelling..."

John, this is getting teedius :D as well as a little sad. I seem to recall a certain gentleman saying if you don't have anything constructive to add to a discussion then to go home. I think I hear your mother calling...
January 11, 2012

Byte said:

The rumbling is getting louder...
...as evidenced by the loud opposition against SOPA/PIPA in the United States.

I've mentioned this before, and probably will have to again, that from a historical perspective, copyrights, copyright terms, etc. didn't affect the general public for a long time. Copyright created a Content Monopoly, but there also was a de facto Production Monopoly: Joe and Jane Average didn't own printing presses, vinyl stampers, film processing plants, etc. This means that works for which the copyright expired were still not being copied en masse by the public, but for technical reasons.

Magnetic tapes started to slowly eat away at the Production Monopoly: people could easily create copies of existing sound recordings ("high speed dubbing decks") and even format-shift (LP/CD to cassette, special C-74 tapes were available), create mixtapes, etc. Because it was all analog, multi-generation copies were of low quality, and because it was physical, mass distribution was a problem as well. Today the Production Monopoly has been obliterated. Everyone can create a work, and distribute it all over the world, be it an e-book, a song/album, a movie, computer software, etc. It's just as easy to distribute an existing work.

This means the only wall you can run your nose into is the Copyright Monopoly. More and more people are running into this wall. People are openly questioning copyright. Political parties have been started with copyright reform (which is different from Harper's "modernization") as a major goal. Those were mainly the geeks, but this is slowly moving mainstream.

It's not just that the public is becoming more aware, and even not just that they are becoming more vocal. It's that they are willing to take action, and get others to take action as well. Even retweeting a #SOPASucks tweet is still taking action. By the way, have you sent your e-mail or letter yet?

January 11, 2012

Cap'n Hook said:

...
Further developments in this important story: http://bit.ly/x2Q2g0

You'se guys better chek it out.
January 12, 2012

Albin said:

Experience check: James Joyce Copyright Expires in Ireland
A little more grist for the mill:

http://www.newyorker.com/online/blogs/books/2012/01/james-joyce-public-domain.html?printable=true&currentPage=all
January 12, 2012

Darryl said:

...
Hi John. Thanks for the link. Not that it is necessary. Those of us with any interest in trying to understand various extremist copyright views already check in there regularly. The rest aren't missing much.

Oh yeah, and what? you couldn't recycle one of your old pseudonyms, or come up with yet another new one. You had to bastardize one of mine? Arrrrrrr

It is interesting that you so minimize the threat of extended copyright terms, yet feel you can call it the new norm. Don't you see any inherent contradiction in those two statements.... Wait a minute, who am I kidding? Of course you don't. (Most of the world still uses life+50 btw)

You seem to equate the "impact on Canadian culture" only with the impact on the heirs of these authors. I know you'd like to believe it, but those are not the same thing, and only loosely related.

Also interesting you don't even bother to link back to the article you are criticizing. Guess you don't want your friends to see what a miserable job you do of making an argument, but you couldn't resist saying something I suppose.

If you want a real good example of what is wrong with extending the term of copyright (well, other than the ones I already gave you of course) check out the link in the comment below yours. Of course you didn't address my examples and you wont likely address that one either because you can't. They all illustrate well, the very real dangers to society of copyright which is too strong and too long. I expect you will just continue to do what have been doing, which is to simply ignore these inconvenient facts. Horse. Meet water. Now how long before you die of thirst?



@Albin, thank you for your link.

cheer.
January 12, 2012

Eric said:

...
Come on! life plus 50 is already good enough. The creator gets full credit plus two generations. Why should someone's grandchildren get royalty checks for something they had nothing to do with? I don't agree with illegal downloading but if the author is dead then I have no qualms about it.
March 08, 2012

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