Submissions on Canada-EU Trade Deal: Canadian Publishers’ Council Seek Term Extension, Database Rt

Concluding the review of submissions to DFAIT regarding the Canada-EU Trade Agreement, the submission of the Canadian Publishers' Council is important because it highlights the hopes of those lobbying for extensive new copyright reforms.  The submission makes clear that those groups hope that CETA could force Canada into reforms such as copyright term extension and the creation of new database protection:

It would be expected that the EU will press Canada to move ahead with enabling legislation leading to quick ratification of the [WIPO Internet] treaties.  The Council has vigorously encouraged and continues to encourage the Canadian government to introduce required legislation and to ratify the treaties. We strongly recommend that the scope of any agreement between the EU and Canada include the protections required by the WCT and WPPT.

The Council would also endorse the alignment of copyright terms in Canada with those of our key trading partners (who have extended the term of copyright to 70 years after the life of the author).

We would press Canada to the sui generis approach to database protection, complementing the protection available under Canada's Copyright Act as interpreted by the Supreme Court of Canada in the Tele-Direct and CCH decisions.  This hybrid system is ideal.


  1. Captain Hook says:

    These are the real pirates
    Those who want to extend copyright another twenty years are the real pirates. They have gotten away with cultural pillaging in the US and the EU, and now they are sailing their galleons toward us. They must not be allowed to get away with this. Write your MP now!

    Copyright terms must be simplified and reduced. Not lengthened.

  2. Note that these are publishers…
    not writers. The question becomes, then, why are they agitating for alignment of the copyright term? If your friends jump off of a cliff, should you do it too?

    Who owns the rights to the books that they publish? They must have some sort of financial rationale for asking for a longer term; perhaps they own the works that they publish, or they sign exclusive contracts with the authors? Otherwise a shorter term would be in the company’s interest; that would reduce the term over which they need to pay the author’s estate.

    And lastly, can someone explain the last paragraph about the databases please? I don’t understand what databases, etc.

  3. Vincent Clement says:

    Someone publishes a book at age 18. Lives to the ripe age of 88. And then the public will have to wait another 70 years before the material enters the public domain. Exactly how does 140 years encourage innovation and new work?

  4. Vincent Clement says:

    When Does It End
    We are entering a public domain drought. Over the next 100 or so years very little, if anything, will enter the public domain. And in 20 years, I’m sure that the same suspects will be asking for another 20 year extension. And on and on this game goes. Sad

  5. Perhaps it’s time to change the game
    Rather than waiting until the content industry proposes yet another draconian copyright law, perhaps the citizens of Canada should come up with a proposal and force the content industry to be on the defensive for once. Here’s what I’d like to see:

    The entire purpose of copyright is to encourage the creation of new creative works. Towards this end, it is of benefit for creative people to have a large body of existing works that they can build upon. Those two basic assumptions lead directly to the following rules.

    First, no corporation, trade union, or other non-sentient legal entity should be permitted to hold a copyright. Given that they are non-sentient, they are not capable of any thought, let alone the creative thought that copyright is meant to encourage.

    Any sort of automatic copyright needs to be for a very short term, five years or less. This would provide protection long enough for the creator to decide whether or not further protection is worthwhile. If the creator wishes, the term could be extended once, by registering the work with a central copyright registry. Registration would extend the copyright to 35 years from the date of registration, or forty years from the date of creation, whichever is longer. In all cases, the term of copyright will end with the death of the creator. The short initial term encourages creators to permit commercially marginal works to drop into the public domain quickly, while still providing a long enough term to determine that commercial viability. The registration requirement reduces the orphan works problem, and permits potential licensees to identify the copyright holder in order to license use of the works. Since someone who is dead cannot produce works of any sort, there is no need to provide encouragement, thus the copyright should expire with the death of the creator.

  6. Actually, why
    Can anyone explain why it is that a copyright term is longer than a patent term (other than Disney has really good lobbyists ;-)? They seem to exist for the same purpose…

  7. @Kelly Gray
    Right idea, but the details are a little more complex..

    What about works that have multiple authors?
    What about works 100% commissioned by a corporation (photos, documents, etc)?
    What about works that are constantly and continually updated? (eg: the GPL licensed Linux kernel).
    What about works that are no longer available from a publisher or authorised source? (out of print, no reruns, etc)

    I agree with your idea, but the details can make this complex. I’d also not want to fall into the trap of looking backwards for guidance in reforming copyright laws, I’d rather look forward.

    One of the fundamental problems with copyright law, is that it was formulated back in the times when a “copy” was done with a physical thing, a book, a record, cassette tape, whatever.
    Then along comes the computer and eventually the internet, where the pure concept of “virtual” is a something that people can interact with and through. The very concept of a “copy” takes on a whole new meaning.
    Frankly, before computers and the internet, the concept of “virtual” only really had meaning to mathematicians. And to speak of “virtual” in any kind of “real” way, was a fast track to getting yourself committed. Now everybody that uses a computer understands “virtual”. They communicate and interact and play intensive games.

    So you need to step back and look at copyright in a whole new way. What it’s fundamental intent was back then, and bring that intention into the modern, digital, virtual age. Formulate new laws that honour the original intent, but with wording, limitations, and exceptions that reflect today’s reality.

    For example, copyright was originally limited to 28 years. The intent behind it was so an author or artist could have time to publish and benefit using the mechanisms available at that time. In this day and age, do you really need 28 years? What is an appropriate number to balance between the benefit to society and the benefit to the rights holder?
    Another example, is there any excuse at all in today’s world for a work to be unavailable or out of print?

    What I am saying is that the only “legacy” of previous copyright laws we should be looking at, is the fundamental concept behind it. Everything else should be subject to change and modernisation.

  8. Didn’t the EU only switch from life +50 to life +70 a few years ago?

    how about this: copyright applies to an idea expressed in a fixed medium. agreed?

    Well, we let them have this extension, and they realize that ‘digital’ is not a fixed medium, therefor, anything that exists in digital form is not covered or protected.

    how does that sound?

  9. Anon-K:

    Let me give you this example. The happy birthday song is copyrighted, that’s why they have their very own birthday song at the restaurants. If someone were to patent the idea of singing a song at your birthday party, then no songs can be sung at all.

  10. I copyrighted human flatulence in a variety of tones and rhythm. I expect each Canadian Publisher from this group to pay me royalties of $20,000 for each unauthorized public distribution. I will protect my IP at all costs. I remind these publishers that by asking for copyright protections that are aligned with trading partners (US and UK) you are ensuring my ability to litigate everyone who is not able to control their bowel movements. Any extension of those protections will ensure my monopoly on human flatulence for up to 70 years after I die, this way none of my relatives will ever have to work.

  11. @Not Happy
    My question (in my second posting) was asking what the rationale is for making copyright 70 years after the death of the author (up from 28 years after creation based on 19th century European and US law), while patent protection is 20 years after filing. It seems to me to be somewhat discriminatory; a writer or artist gets lifetime+ protection for their work, while an inventor gets 20 years.

    With respect to your assertion that no songs could be sung, that is not quite, as I understand it, true. Songs could be sung. However, you would need a license with the patent holder to do so. In the same way as a restaurant would need to compensate Warner Chappell in order to sing “Happy Birthday To You”.

  12. Captain Hook says:

    copyright vs patent = Time vs. breadth

    I expect the original rational was that patents had a wider breath, and therefore deserved a lesser term. They did not only protect a single version of an idea or story, but a whole idea. For example you can make your own story of snow white without infringing Disney’s copyright on their version of snow white. Mega-Bloks, on the other hand, for many years could not sell Lego compatible blocks of any kind in the US because Lego had a patent on their design.

    Patents trade off time for breadth.

    Of course that is the theory. In reality copyright protection has grown to be effectively just as wide as patents. Go ahead and try to write a book about a wizard kid with two friends, who go to school in a magic castle, and has an super wizard and a nemesis, and see how quickly you get sued (assuming it ever gets published).

    and BTW, “Happy Birthday” is in the public domain in Canada. I believe the US is the only country in which copyright still subsists.

  13. Ralph E. Marsh says:

    Ralph Sir Edward
    The difference between lengths of copyright and patent is simple.

    Patents – A big corporation using patents rarely limit themselves to just the patents they create. They usually license other patents, and license out their own (after they feel they’ve gotten the “cream” of the profit from a patent). What they lose in royalties from their own patents, they make up for by not having to pay for other people’s patents. So they are only interested in a short length (currently 20 years) to allow them to get max profit in the short term, figuring it will net to zero in the long term.

    Copyright – Big corporations don’t license copyrights back and forth, as there is no competitive advantage to do so. They see much less profit in using expired copyrights, that can be gathered in with unexpired copyrights. Therefore, the incentive is to lengthen copyright, to “get every last drop” of the granted monopoly.

    Patents are used as tools of other production, copyright are used in and of themselves….

  14. @oldguy
    Copyright on works with multiple authors could be handled in one of two ways. For works with an obvious distinction between the parts, such as a movie with a separate soundtrack, each author can claim copyright on their portion and they are treated as multiple independent copyrights. Alternatively, multiple authors of a work can share a joint copyright. If one of the creators dies, copyright would remain with the surviving creators until either the last creator dies, or the time limit expires.

    Works created under a commission from a corporation are still created by a person. The terms of the commission could include an exclusive licensing deal, but the copyright itself would still be held by the person.

    Assuming that the update to a work is sufficiently creative to qualify for copyright, then a new copyright would be created with each version. That would lead to a situation where older editions of the work are in the public domain while the newer editions are still covered under copyright. In this situation, a plaintiff in a copyright infringement case would have to show that the infringement involved material from the newer edition that is not also present in the older edition.

    Copyright is the exclusive right to make copies of something. This also implies the exclusive right to not make copies. If the publisher of a work declines to make it available, that is their right. The short initial term of copyright would tend to prevent the situation where all copies of a work are destroyed before they enter the public domain. If the creator opts for the longer term of copyright, the registration process would guarantee that at least one copy of the work would remain with the central registry when the work finally does enter the public domain.

  15. @Kelly Gray
    I work as a software developer. So, if I read your posting correctly, any work that I do for my employer I will be the copyright holder, not the company, and therefore I am entitled to a royalty every time they sell it? Did I understand you correctly?

  16. @Ralph
    Forgive me if I misunderstand you, but I would take it as it would be in the interest of the publishers for copyright terms to be as short as possible; because once the work goes into the PD, they no longer need to pay a royalty to the rights holder. Certainly this is tempered by the increased competition (since other publishers can then start to publish themselves).

    Of course, if the publishers are in the business of purchasing the rights from the original author (making them the rights holder), then this goes out the window, as they can stifle competition extending copyright, and see increased profits as they pay the royalty to themselves.

  17. @Captain Hook
    With respect to “Happy Birthday”, I would suspect that it is still not PD in any country where the term is life + 70 (which would include EU countries that have adopted that under US pressure).

  18. Captain Hook says:

    @Anon-K, sadly you appear to be right. I had thought the EU copyright extension of ’93 was not retroactive to include PD works. Apparently for many countries it was.

    We could delve into the legitimacy of being able to claim copyright by simply changing two words, but I’ll save that discussion for another time.

    However all that aside. The big media companies getting away with cultural rape in so many other countries, is no reasoning for allowing the same thing to happen here. Copyright term must be the line in the sand beyond which we do not allow these companies to cross, at all costs. If we can prevent this, then perhaps we can be the first country to bring reason back to copyright law, and perhaps the others will start to see the error of their ways and find ways to undo the damage they have done.

  19. @Kelly Gray
    Don’t get me wrong, I agree with you in principle. But I am looking for a way to make copyright laws simpler. Simple enough that anybody can understand them, and that make rational sense in a digital age.

    It’s the details, that have evolved over time, that make current copyright law the morass of land mines we see today. Similar to software that started out clean and understandable, but over time gets lots of things added to handle special cases and special functions, there comes a time when you need to step back and do a complete rewrite. Same principles, but reorganized and rewritten.

    you said: “exclusive right to make copies of something. This also implies the exclusive right to not make copies.”

    This is one of the areas that the digital age has changed dramatically, that “something” no longer needs to have a tangible existence. Once a copy has been made available (licensed), you can’t put the genie back into the bottle. It’s out there. Practicality and normal human nature will tend to keep it available, regardless of the principles or rights of the copyright holder. This leaves a large grey area and potential for conflict between the rights holder and society.
    Wouldn’t it be better to codify rational laws (or exceptions), laws that address this conflict in proper balance, right up front?

  20. @Anon-K
    Under the current copyright laws you probably don’t get to ask for royalties on the software you write for your employer. If the copyright laws were to be changed so that corporations cannot hold a copyright, then yes, you would be able to ask for royalties. The exact details of what you’d get would depend on the licensing deal you make with the employer. You could ask for a royalty for each sale, or you could ask for a regular salary in exchange for a royalty free license to whatever you produce. You could also settle on a combination of the two. The terms of the deal would be anything permitted under current contract laws. The equivalent to your current situation would probably be that the company gets an exclusive, irrevocable, and royalty free license to use whatever software you produce during your employment alng with a non-disclosure agreement on your part. In exchange, you get a defined salary and benefit package.

    The framework I’m suggesting would not significantly change the way copyright is used in the short term. What it would do is increase the rate at which works become available as building material for new works, and as a side effect reduce the orphan works problem that currently keeps pretty much everything out of the public domain permanently.

  21. @Kelly Gray
    In the software world, often you are not working with your own “original” works. You are modifying and extending another’s works. EG:

    “A” writes the original module.
    “B” modifies and extends the module.
    “C” modifies and extends the module.
    “D” modifies and extends the module.

    At the end of this process, the amount of “original” works left in the module may be:
    “A” – 25%
    “B” – 20%
    “C” – 30%
    “D” – 25%
    And they are so intertwined that when looking at any one portion of the works it is hard to determine who is the “author” of which component. In the case above, you may have one line of code originated by “A”, then a single “word” is modified by “B”, 3 “words” are added by “C”, and then “D” comes along and modifies another 4 “words”, some that were placed there by all the previous ones. All to make that one line of code work properly with their other additions and changes.

    The only logical thing to do is to turn this “single author” work into a multi-author work. So who owns the copyright? How do you apportion the royalties at any point in time?
    Then extend this situation on to hundreds of commissioned programmers, each with their own little piece of that single module. At what point are “A” (or “B” or “C”) no longer a recognisable copyright owner?

    As I have been saying, I agree in principle. But we need simplification of the laws to cover these kinds of cases. Corporate ownership of copyrighted works makes sense in some situations, but there needs to be limitations on the rights these owners have. Long term copyright of dynamic, collaborative works by a corp or other non-person entity has advantages to both society and to the rights holders. Long term ownership of a static work does not.

    How do you codify such laws and exceptions in a simple, understandable way?

  22. what about making a distinction between copyright law for corporations and citizens?
    Assuming a base copyright length of 5 years, it could work exactly the same way except corporations cannot extent their copyrights to let say 10-15 years for individuals? Also, copyrights law must also only apply for commercial gain (education always excluded).

  23. @Bob
    “making a distinction between copyright law for corporations and citizens?”

    That’s one possibility. And there may not be a way around it. But I’d like to avoid making the distinction based on any particular organization type, and focus on other aspects. Still struggling with the details, but perhaps something along the line of “actively being made available for distribution” and maybe address the static/dynamic question with “content substantially similar”.

    I’m trying to come up with terms that address the current variety of environments (and beyond), yet find a proper balance between holders rights and society.
    Right now I am leaning more to somehow linking copyright to “distribution”, where continued rights are linked to actively distributing a work. Obviously there is no benefit to either society or the copyright holder if the work is not longer actively being distributed by the holder or agents of the holder.
    Likewise I am groping for the right balance between society and the rights holder for static vs dynamic copyrighted works.

    I don’t have the answers. All I know is what we have in place today is so out of balance that it simply can’t work in today’s world. Technology advancements have made a total hash out of the original meaning of “a copy” as used in copyright laws. I consider myself as at the stage of figuring out what the proper questions are, questions that cover the range of activities covered by copyright, and what the proper balance should be between society and rights holders for these activities. Mapping the “principles” into the details of reality.

  24. you may want to read the following free (as in free beer and free speech) ebook…

  25. @Kelly Gray
    What is the difference, then, between an employee making something for a company, and a company commissioning a non-employee? In both cases the company is paying for the development of the work. Why should the employee/employer relationship be treated any different? Arguably the employee may get benefits; however the contractor is often paid more, in my industry significantly more than the value of the benefits for the same period.

    My point here is that giving the company the copyright if you are an employee but if an independent then it resides with the independent covers only a portion of the cases, with the relative portions varying by industry. Any attempt at copyright reform, in particular with respect to who owns the rights to the work, needs to address both such cases. I would argue that, for simplicity, unless otherwise agreed copyright resides with the party that paid for the development of the work. In the case of an employee/employer relationship, this is straightforward as the employer commissioned the work from the employee. Where the work is developed by an independent, the line is drawn at who paid for the development. The party that paid for the development has the copyright. Ownership of the copyright may be determined by a clause in the contract.

    What does this do? It means that if I pay you to write me a song, I own it, regardless of your status as an employee of mine or not, and if I am a company or even personally incorporated. However, we could agree that you retain the copyright if, for instance, you were willing to lower your fees for writing the song.

  26. @Bob

    Interesting economic analysis. Good read. Both theory and hard data to back it. Not “what seems logical” or “what is a good idea”, but “how does the data match the intention”.

    They pretty much put an economic nail into the idea that patents increase innovation, are an incentive to innovate, or even bring any overall benefit to inventors.
    It seems counter-intuitive, but the hard data indicates that a patent’s only benefit is to the established players, and only after these players have stopped innovating. They are best used as a competitive tool to keep others from entering the game.

    When it comes to copyright, their data and analysis isn’t as clear. What the data does strongly indicate, is that much shorter copyright terms are better for both society *and* for authors and artists. Based on the data they analysed, it is doubtful that anything more than a few (5-10?) years would accrue significant additional benefit to the holder – except in a very few specific cases (Disney being the prime example). Certainly the minor additional benefits of a longer copyright term aren’t enough to make or remove an incentive for an author or artist. On the other hand, the benefit to society for very short copyright terms are enormous.
    But to give them credit, they do show how authors and artists might continue and prosper even without any copyright protection. They just wouldn’t prosper as “well” as they do today.

    Most of their hard data predates the digital age (obviously). In the case of patents, applying the capabilities of the digital age doesn’t change their analysis one bit. They have a pretty clear case that patents have not served the purpose for which they are stated to exist. Society and innovators and inventors would all be better off without patents.

    In the case of copyright in the digital age, I’m not so sure their analysis can be so easily applied. What they have confirmed with hard data, is my opinion that copyright in general must have a much, much shorter term.
    To appease the Disney’s of the world, I’d suggest a “special exemption” case whereby a copyright can be extended, perhaps for a special tax on the gross income of the holder/applicant. I use gross income to avoid the situation where a work might be “buried” for a while and not made available to society in any fashion. Tie the extension to the interests of the holder, not the actual work. If they wish to extend the copyright term on a multitude of works, eventually it will hurt, and they will be forced to review which works are worthwhile to keep extending – from a business perspective.

    All in all, it’s a worthwhile read. Especially for those who are on the pro-patent side of the fence. For those that are on the pro-copyright side of the fence (or straddling it), it might be tougher to agree with their analysis, but the data is there..
    Economic analysis, not what is right or legal or logical or intuitive. Simply does it do what it proports to do?