april: the booklist by stephanie vacher (CC BY-NC-ND 2.0) https://flic.kr/p/4EgeGM

april: the booklist by stephanie vacher (CC BY-NC-ND 2.0) https://flic.kr/p/4EgeGM

News

Official Release of TPP Text Confirms Massive Loss to Canadian Public Domain

The New Zealand government posted the official Trans Pacific Partnership text today after years secret negotiations and occasional leaks of the text. It is an enormous deal with dozens of side letters between countries – Canada alone has eight side letters on intellectual property with seven TPP countries – that will require considerable study.

From a copyright perspective, the TPP IP chapter leaked soon after the deal was concluded and the chapter looks largely consistent with that document. There is a notable change involving the Internet provider and host takedown rules, however. I earlier blogged that the chapter included a takedown provision not found in Canadian law that would have required blocking content based on being made aware of a court order finding infringement. I noted that the provision would have allowed decisions from other countries to effectively overrule Canadian law. The released text has been amended to limit the provision to domestic court rulings ensuring that only Canadian court rulings would apply. This is a positive change that better reflects current law. It does point to the danger of negotiating in secret, where potential concerns go unaddressed without the opportunity for expert review. Given the size of the deal, it seems likely that there will be many more instances of poorly drafted provisions that raise unintended consequences.

Unchanged from the leaked text is the confirmation of the extension of the term of copyright to life of the author plus an additional 70 years. This marks a 20 year extension in the term of copyright, dealing a massive blow to access to Canadian heritage and resulting in hundreds of millions in cost.  For example, there are 22 Governor-General award winning fiction and non-fiction authors whose work will not enter the public domain for decades.  These include Margaret Laurence, Gabrielle Roy, Marian Engel, Marshall McLuhan, and Donald Creighton.

The list of winners whose works were scheduled to enter the public domain over the next 20 years, but will now wait until at least 2037 (assuming a 2017 reform date):

FICTION

  • Igor Sergeyevich Gouzenko (The Fall of a Titan)
  • Winifred Estella Bambrick (Continental Revue)
  • Colin Malcolm McDougall DSO (Author, Execution)
  • Germaine Guèvremont (The Outlander)
  • Philip Albert Child (Mr. Ames Against Time)
  • Gabrielle Roy (The Tin Flute)
  • Jean Margaret Laurence (The Stone Angel/ A Jest of God)
  • Marian Engel (Bear)
  • Hugh Garner (Hugh Garner’s Best Stories)

NON-FICTION

  • James Frederick Church Wright (Slava Bohu)
  • Laura Goodman Salverson (Confessions of an Immigrant’s Daughter)
  • Edgar Wardell McInnis (The Unguarded Frontier)
  • Evelyn M. Richardson (We Keep a Light)
  • William Sclater (Haida)
  • Marjorie Elliott Wilkins Campbell (The Saskatchewan)
  • William Lewis Morton (The Progressive Party in Canada)
  • Josephine Phelan (The Ardent Exile)
  • Donald Grant Creighton (John A. Macdonald, The Young Politician)
  • Frank Hawkins Underhill (In Search of Canadian Liberalism)
  • Herbert Marshall McLuhan (The Gutenberg Galaxy)
  • Noah Story (The Oxford Companion to Canadian History and Literature)
  • Francis Reginald Scott (Essays On the Constitution)

In addition to Canadian authors, there many well-known international figures that will be kept out of the public domain such as John Steinbeck, Martin Luther King, Andy Warhol, Woody Guthrie, and Elvis Presley.  The damage to the public domain in Canada is huge and stands as one of the worst aspects of the TPP’s intellectual property chapter.

43 Comments

  1. David Collier-Brown says:

    In the era the drafters were born in, that would only be a monetary loss for a few publishers.

    In an era with ebook readers, it eliminates a whole shelf of classics I could read on my kobo on the subway. Some frew merely have a cost: others aren’t available at *any* price.

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  3. Does the copyright have to be retroactive, or could s country extend the period only for works created after the treaty was signed?

  4. I don’t see why an additional 20 year extension is a huge issue. If the children of works creators can be expected to live for that extra 20 years, they should benefit from their progenitors’ efforts at least until they themselves pass.

    If this is the worst of the IP section I think we’re in good hands.

    And for those seeking to read old works in an ebook format, go scan a library copy. No one will know.

    • This ISN’T the problem, actually. The problem is domain name seizures. This cements a regime of takedowns that will be impossible to maintain agreements around. It was obvious with the “backdoors to encryption” regime recently proposed and abandoned by both the US and the UK. How could countries all agree to trust each other with takedown powers,
      if they’ve concluded they can’t trust each other with surveillance powers?

    • You’re thinking about well known books and music. The vast majority of copyrighted works no longer generate significant revenues more than a few years after publication if at all. But copyright protection in Canada is automatic for all works. So if you can’t even figure out who to ask for permission, you’re still infringing. It also applies to software. Think very carefully about how many things in your life use batteries. If they don’t already have software in them, they will soon. How many of the electronic devices you purchase today do you think will still be supported 70 years after their creator dies? Now think about cars, pacemakers and thermostats. We’re giving away the ability for anyone other than the copyright holder to even examine the code for errors.

      • Fiona McMurran says:

        Thanks for explaining that so clearly — very important point.

      • Steven Sandor says:

        As a creator, I welcome extension to copyright. Paying contributors fairly for their work. It seems to me a lot of consumers chime in when it comes to these discussions, and a lot of creators are “told” what’s good for us.

        You know what? If my 10-year-old book still generates $100 in royalties, that’s still $100. It feels like people use the importance of the public domain as an easy justification.

        What IS bad for us is the Fair Dealing legislation which has taken millions away from creators in this country.

        As an editor, I’d be terrified of using the work of any writer who claimed to not know who to ask to cite or use a copyrighted work. Have we truly become that lazy when it comes to research in the Internet age?

        • “As a creator, I welcome extension to copyright. Paying contributors fairly for their work. It seems to me a lot of consumers chime in when it comes to these discussions, and a lot of creators are “told” what’s good for us.”

          This extension will do NOTHING to help authors. Copyright is already LIFE + several years, so what you are saying is nonsense. Any benefit will go to corporate conglomerates with the resources to maintain that copyright monopoly for over a hundred years.

        • “What IS bad for us is the Fair Dealing legislation which has taken millions away from creators in this country.”

          Really? Let’s see that hard data… oh wait it doesn’t exist.

          Also, millions from “creators”? What an absolute over simplistic generalization – considering the amount of revenue going into the pockets of middlemen agencies, the WMGs and Access Copyrights of the world.

          “As an editor, I’d be terrified of using the work of any writer who claimed to not know who to ask to cite or use a copyrighted work. Have we truly become that lazy when it comes to research in the Internet age?”

          So now you are trying to conflate fair use/dealing with plagiarism? Sorry, your Access Copyright talking points aren’t going to work here.

        • “It seems to me a lot of consumers chime in when it comes to these discussions, and a lot of creators are “told” what’s good for us.”

          That’s funny thing to say. If anyone is dictating terms, it’s the agencies like Access Copyright, MPAA, RIAA et al. who are dictating terms for authors and customers alike.

          Furthermore, I love how you phrase this relationship as “customers telling authors”, as if it’s only the rights (copyright privileges more accurately) that are being affected or are important. I guess the property rights of citizens (affected by copyright laws) are less important?

        • Reading, Speaking, Learning.

          This is the natural order of culture.

          When you rip the community of his culture because you think you OWN thoughts… well, you out of track and wacko.

          Everything can be share at the light of speed. Whatever you think, it’s not yours.

      • Thanks for all the discussion. I’ll clarify here that I am both a user and a creator of copyrighted works (in fact we all are). I don’t write novels or make movies, but I use and write software code, and scientific literature.

        I challenge any coder or researcher to tell us all they can produce their work without review or reference to anyone else. This is already an absolutely critical part of the knowledge economy and will only become more important. If Canada wants to compete economically in the TPP zone, it won’t be on cheaper labour or access to resources, it will be on services and research and development, and the copyright provisions of TPP further tie our hands.

        • Dennis Nilsson says:

          This draconic copyright regime is very good for countries like China and Russia, who don’t care about “copyright” or “patent”.

          Their industries is getting very good advantages with TPP.

    • So someone writes something at age 20 and dies at age 70. So now the copyright period on that piece of work is going from 100 years to 120 years.

      You don’t see the ridiculousness of that?

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  9. Nicholas Tracy says:

    Most book authors are very badly paid, but why should they not go on being paid for their lives with something to leave to their children. Anyone can read a book, and if it is in error, they can write a correction. Software is a different matter, and should be subjected to different copyright rules.

    • The current term of c opyright in Canada (and formerly worldwide) was life + 50 years. So the author’s children and grandchildren would derive a benefit – IF (as noted above) the work has any value. The vast majority of works do not have enduring commercial value – but the extension puts off for another 20 years the possibility of cheap editions or even finding someone to permit publication.

      I cannot believe for a second that a creator will work harder or longer on a creation because his or her great-grandchildren will benefit if it has any commercial value, rather than just his or her grandchildren.

      So if copyright is supposed to reward creators or give them an incentive, this is way more than needed. It’s actually for the corporate owners of a tiny number of very lucrative works – like Mickey Mouse – and lately for recordings of rock classics…

    • Two things: 1) you assume that you can no longer sell a book afterwhich it goes into the public domain – this has been proven false by the large amount of public domain works being sold. 2) Copyright is meant to be a limited term distribution monopoly in order to encourage further authoring of new works. It is NOT a pension plan for authors and their kids.

  10. Are we locked into this treaty? Doesn’t it have to be ratified in Parliament first (which under a new government may not happen.)

    • Fiona McMurran says:

      The TPP has to be ratified by the Trudeau government, not Parliament — although since the Liberals have a majority, that amounts to the same thing. Trudeau’s promise to Japanese Prime Minister, Shinzo Abe, to promote the TPP certainly suggests that he’d made up his mind — before even seeing the text.

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  13. Andrew

    The only way it might get stopped is by the senate and not because its best for Cnaada but the Tories could use this to slow down the JT agenda.

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  15. the TPP is a censorship mech; how ’bout three strikes and you’re out?
    on the complainers?
    that’d give the ‘search+destroy’ trolls a new quota to work on.

    • Dennis Nilsson says:

      “three strikes and you’re out” is also very handy for political purposes. What a great way to destroy a political opponent or political journalism.

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  22. Life + 50 years? Life, + 70?
    Track down the author, find the rights holder, then republish?
    If the govt wants to benefit creators, why not make like patents, rewards to authors 20 years after creation. After 20 years, then some standard rate which goes to a fund like the Canada Council to finance new writers and artists for another 20 years, then into the public domain.
    Something for everyone — tho given the low cost of copying, still like Canute ordering the tide to stop. (BTW, he did this to show the folly of human command compared to God’s, not because he was mad.)

  23. To Creators:
    You little ‘creators’ always talk about your ‘rights’ to profit from your works, right? Ohhh you poor little creators, please educate me… WHO benefits from this change in length? How will this benefit you? Don’t feed me the crappy (obscure) lines, but give it to me straight. You probably can’t give it to me straight, because the impact is soooo dubious in the extreme at best. Let me tell you little mouse, it’s not YOU who benefits, but giant media companies like Disney, not YOU.

    Please tell me WHY you deserve what no one else gets? Wh you feel you should get something NO one else gets? No one anywhere enjoys such privilege. If an accountant, engineer or any of hundreds of other professionals produces something that adds value to their work they don’t benefit other than the continued enjoyment of their employment. I’ve heard the crap about we (creators) are ‘artists’, then I ask you what is an artist? I’m an entrepreneur and I can tell you I create all the time and yet I would be embarrassed to ask for payments going on for decades for my work.

    Do we not deserve to get paid for our constant and tireless innovation? WHY ARE YOU SO SPECIAL?

    Well FYI I REFUSE to pay your children and children’s children long after you are dead for a book. Period.

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