Global groups such as the International Confederation of Music Publishers and the U.S. National Music Publishers Association came to Ottawa this week to lobby the government to extend the term of copyright beyond the Berne Convention standard of life of the author plus an additional 50 years. The lobbying effort kicked off with a Hill Times piece, followed by an evening wine and dine event with politicians, a panel from the supposedly progressive Pearson Centre for Progressive Policy, and then yet more lobbying with Canadian music lobby groups. The lobbying campaign comes on the heels of the controversial 2015 copyright extension of sound recordings, which some groups used to sow confusion about the term of protection for sound recordings (from 50 to 70 years) with the term of protection for the composition or written work (frequently longer at life plus 50 years).
The possibility of term extension could come from two policy processes: trade talks and domestic review. On the trade front, Canadian officials are currently in Vietnam for talks that might lead to a conclusion of the TPP11. The original TPP included a term extension to satisfy U.S. pressure. Press reports indicate that Canada is one of several TPP countries that is seeking to freeze many IP provisions in a re-worked TPP, likely including the term extension requirement (freezing would mean that it would not take effect). There are also the NAFTA negotiations which could involve term extension, though all three countries currently have different (but internationally compliant) terms. Alternatively, the domestic review of the Copyright Act will take place over the coming year and those same groups can be expected to push for term extension as part of that process.
Yet the recent round of lobbying demonstrates that there are few good policy arguments to support term extension. Indeed, the argument appears to amount to just one: the U.S. and Europe have extended term, so Canada should follow suit. But that isn’t a policy argument nor based on compelling evidence that term extension would serve any of the goals of copyright policy such as increased incentives to create (no one seriously thinks that an additional 20 years of protection after death would result in the creation of more works) or increased access. In fact, David Lametti, the Parliamentary Secretary for the Minister of Innovation, Science and Economic Development and a leading IP expert, has written that we should re-think copyright terms by shortening the term of protection and adding registration requirements.
Indeed, there is considerable evidence that term extension would hurt access, increase costs for consumers, and harm Canadian education efforts that frequently rely on public domain materials. The negative effects of term extension has been confirmed by many economists, including in a study commissioned by Industry Canada, which have concluded that extending the term simply does not create an additional incentive for new creativity. Moreover, studies in other countries that have extended term have concluded that it ultimately costs consumers as additional royalties are sent out of the country. New Zealand, which faces a similar requirement, has estimated that an extension would cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher. Rufus Pollock’s work has examined the value of the public domain and Paul Heald has written several important articles on the economic importance of the public domain. Heald found that Kickstarter projects based on public domain works were more likely to succeed and that commercial firms often use public domain works to create new commercial products.
The damage caused by the term extension involves more than just economic costs. It also creates a massive blow to access to Canadian heritage. Canadian publishers such as Broadview Press, an independent academic publisher that has been a vocal proponent of copyright, has warned about the dangers of the term extension to its business and the academic community:
Unlimited, or excessively long, copyright terms have often kept scholars from publishing (or even obtaining access to) material of real historical or cultural significance. They have severely restricted certain options for university teaching as well. Broadview’s editions of Mrs. Dalloway and of The Great Gatsby (edited by Jo-Ann Wallace and by Michael Nowlin, respectively), for example, are to my mind unrivalled. Each includes far more than just the text itself: explanatory notes, extended introductions, and an extraordinary range of helpful and fascinating background material in a series of appendices. They offer a truly distinctive pedagogical option. But instructors and students in the USA are still not allowed access to those editions.
Currently, we at Broadview are looking at publishing similar editions of works by other authors who have been dead for more than 50 but fewer than 70 years—works such as Orwell’s Animal Farm and 1984, for example; a Broadview edition of such works, with the appendices of contextual materials that are a feature of almost every Broadview edition, would provide highly valuable context for students at all levels. We are also looking forward to January 1, 2016, when we will finally be able to make the superb Broadview edition of The Waste Land and other Poems—with its excellent explanatory notes and extensive range of background material on modernism—available in Canada. (Eliot died in 1965.)
As I noted earlier this year, term extension would have a damaging effect on education beyond the loss of public domain compilations. The Ontario Book Publishers Organization recently published a study funded by the OMDC on the use of Canadian books in English classes in Ontario Public and Catholic schools from Grades 7 to 12. The study surveyed teachers and school boards on which books (including novels, short story collections, creative non-fiction, poetry and plays but not textbooks) are taught in English classes. The goal was to see whether Canadian books were included in class lists. The survey generated hundreds of responses (27 from school board participants and 280 from the Ontario Teachers Federation) resulting references to 695 books by 539 authors.
Of the top 20 titles, fully half are in the public domain today or are about to enter the public within the next two years. The importance of the public domain within the classroom extends far beyond the most popular works. The survey identified 99 books that received at least four separate mentions from respondents. Of those 99 books, 20 are in the public domain and two more will enter the public domain shortly. These books are widely used as they represent 35% of the total mentions. Expanding even further to the entire list of 695 books, 96 books are in the public domain or about to enter it.
Despite efforts by some to dismiss its value, the widespread use of public domain works within Canadian classrooms underscores its continued relevance. It also raises two important policy issues. First, it reinforces how many of the works used in classrooms fall outside of current copyright protection and not are not subject to licence fees or royalties. In fact, as the Ontario government emphasizes the benefits of open electronic textbooks, using public domain works will become even more essential since they can be fully incorporated into open electronic texts without the need for licenses or permissions and can be made more readily accessible in electronic form for the blind and sight impaired.
Second, there is another large category of works currently used in Canadian classrooms beyond the nearly 100 public domain titles. In fact, there are dozens of titles that are scheduled to enter the public domain within the next 20-25 years. These are the works that would be directly affected should Canada agree to extend the term of copyright as part of the TPP or NAFTA negotiations.
The downsides of term extension to the Canadian economy, culture, and education are readily apparent. Proponents offer politicians little more than a nice glass of wine and assurances that other countries have done it so Canada should too. Our trade negotiators and politicians should know better and should stand ready to respond that Canadian copyright is fully compliant with international law without the need to implement an expensive and unnecessary term extension.