Canadian artist Bryan Adams placed copyright in the spotlight on Tuesday, appearing before the Canadian Heritage committee to make his case for copyright reform. Adams attracted widespread media coverage, though the big music industry groups such as Music Canada were conspicuously silent with not even a tweet to mark the appearance. Why the cold shoulder from the Canadian music industry to one of Canada’s best known artists? The obvious answer is that Adams sang from a far different songbook than the industry lobby groups. While those groups have been pushing for copyright term extension and a so-called “value gap” that bears little reality to Canadian law, Adams expressed artist frustration with the industry and one-sided contracts, noting that “I don’t even want to start naming the names of people who have had their copyright whisked from underneath their feet from contracts that they’ve signed as youngsters.”
His proposed reform stems from Section 14(1) of the Copyright Act, which provides for the reversion of copyrights to a creator’s heirs 25 years after their death. The provision is designed to address concerns that creators are often the weaker party when they enter into agreements with publishers or record labels. The reversion provision seeks to remedy the bargaining imbalance by reverting the rights many years later. As Adams pointed out, however, creators never experience the benefit of reversion since it applies decades after their death. Adams instead proposed that the reversion take effect 25 years after the copyright is first assigned to the company:
25 years is plenty of time for copyright to be exploited by an assignee. The second point was that an author or composer can see a further potential financial benefit of their work in their lifetime, and reinvest in new creation. It won’t happen by having reversion. It’s an incentive. This is the single and probably the most efficient subsidy to Canadian creators at no additional costs to the taxpayers at all.
Adams’ pitch opens the door to an important conversation on copyright policy in Canada. First, by calling for a shorter copyright term for reversion in contractual agreements, he reminded policy makers that extending the term of copyright for years after the creator has died does little for them. Indeed, the industry push for copyright term extension of up to 70 years after death does not create new incentives to create or give creators what they need today. If the government is consider amendments to copyright terms, it would do far better to examine shortening the term of copyright reversion as Adams suggests, rather than locking down the public domain by extending general copyright term in a manner that leaves creators with little value or incentive today.
Second, Adams’ concern is fundamentally about the unfair bargaining power that frequently exists between creators and music labels, publishers, or other corporate copyright interests. The reversion approach is one mechanism to address the copyright imbalance, though shortening the term raises its own set of concerns, including the likelihood that publishers and labels will look for other ways to generate revenues from the artists over a shorter period of time. My colleague Professor Jeremy de Beer has identified other mechanisms that could be used to strengthen the bargaining power of artists when confronted with one-sided deals from record labels and publishers.
Third, the problem with copyright and unfair contracts is not limited to one-sided deals with record labels. The interaction between copyright and contracts can create challenges in many areas, including efforts by publishers to limit fair dealing rights through contract, contractual limits on authors to use their own works as they see fit, and the use of contracts and digital locks to leave consumers with few rights when their digital purchases are rendered inaccessible.
There has long been a need to ensure that copyright policies are not overriden by unfair contracts, ideally through legislative amendment that restrict the ability to contract out of fundamental creator and user rights. With his high profile appearance before the Heritage Committee, Adams has provided an important reminder that copyright lobby groups do not speak for all creators and redirected the copyright conversation toward some of the copyright concerns that the industry has been reluctant to address.