The agreement on a revised Canada-US-Mexico Trade Agreement this week featured both good news and bad news. Among the positive changes in the revised agreement is the significant changes to the patent provisions, including the elimination of the ten years of protection for biologics. That provision would have required changes to Canadian law and added significant new costs to pharmaceuticals. Moreover, the retention of the Internet safe harbour provision is a win for freedom of expression in Canada as it will help ensure that free speech is not lost in the current rush to regulate Internet platforms.
On the downside, many of the problematic digital trade provisions remain unchanged (they can also be found in the CPTPP so their inclusion does not change much) as does the requirement for a copyright term extension to life of the author plus 70 years. The additional 20 years of protection beyond the international standard found in the Berne Convention will be costly for Canadians with little discernible benefit.
Canada had managed to fend off pressure to extend term in previous agreements as the term extension provision found in the TPP was suspended once the U.S. exited the agreement. Canada had good reason to maintain the international standard of life plus 50 years given the negative effects of term extension has been confirmed by many economists, including in a study commissioned by Industry Canada. 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. There is also considerable work confirming the negative effects from legal scholars such as Paul Heald, Chris Buccafusco, and Rebecca Giblin (among others).
In fact, even some publishers and artists have come out against copyright term extension. For example, during the TPP negotiations, Broadview Press, an independent academic publisher that has been a vocal proponent of copyright, 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.)
Similarly, Canadian artist Bryan Adams told the Canadian Heritage committee during its review of artist remuneration in 2018 that it simply enriches large intermediaries:
Canada is now more or less duty-bound to increase copyright protection by 20 years, to “life + 70”. Extending the duration of copyright essentially enriches large firms of intermediaries. It does not to put money in the pockets of most creators. Economists argue that copyright already lasts too long. Canada should respect its treaty obligations. However, unless Parliament intends copyright to be a law for distributors and not creators and wishes that the rhetoric about creators merely help intermediaries to gain strong exploitation rights with little or no benefit for creators, it should do something to ensure that more of the benefits from copyright extension flow to creators.
With the conclusion of the USMCA, Adams is right that an extension seems like a done deal. In fact, the intermediaries Adams warned about have just launched a campaign to urge immediate term extension. Canada does have a modest alternative to quick reform, however. As noted when the first USMCA implementation bill was introduced, it did not include copyright term extension. That is because the Canadian government negotiated a transition period for the USMCA that it can use to consult with the public on the best way to meet the copyright term obligation.
For example, there has been some thought given to establishing a registration requirement for the additional 20 years. That approach would allow rights holders that want the extension to get it, while ensuring that many other works enter the public domain at the international standard of life plus 50 years. By providing for life plus 50 and the option for an additional 20 years, Canadian law would be consistent with Berne Convention formalities requirements and with its new trade treaty obligations. Copyright registration would not eliminate all the harm to the public domain, but it would mean that only those that desire the extension would take the positive steps to get it.
This approach was recommended by the Canadian copyright review, which suggested establishing a registration requirement for the additional 20 years:
The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.
With copyright term extension seemingly inevitable, Canada should follow the committee’s recommendation by making the best of a bad situation: a registration requirement would meet its treaty obligations, give rights holders that want it an extra 20 years, and preserve many others works in the public domain for those that don’t.