The House of Commons has been debating Bill C-4, the implementation bill for the US-Canada-Mexico (USMCA) Trade Agreement. The copyright term extension has begun to attract attention. Green MP Paul Manly called it an “unnecessary change” and Conservative MP Dan Albas, who participated in the copyright review, used his time to make a strong case against extension. Albas’ comments are a must-read as he warns of the danger of term extension, welcomes the chance to mitigate the harm, and encourages the government to use the copyright review as its road map for the issue:
Many of my colleagues have been highlighting the deficiencies in this agreement, but I want to look at one that has not been talked about as much but is crucial for the future of Canadian creativity and economic growth: copyright protection. Much of the last year on the industry committee we studied Canada’s copyright framework, and what changes could be made to improve it. We tabled that report, and I am very proud of all the hard work that went into it. I hope the government accepts almost all the recommendations. One thing we did not recommend was to extend Canada’s general copyright term from the life of the author plus 50 years to life plus 70 years. Canada’s copyright term is compliant with the Berne Convention and has served us well. It is my opinion that the exclusive rights to a work being held for 50 years after an author’s death is entirely appropriate and sufficient. Extending that term is not.
During the copyright study, we heard from many viewpoints about extending copyright term. Many were in favour and many were opposed. At the same time, we knew that the text of the USMCA required Canada to adopt the longer American copyright term. This was not a surprise, as that was contained in the Trans-Pacific Partnership prior to the U.S. pulling out from that deal. I thus expected the text of the USMCA- or CUSMA-enabling legislation we are debating today to contain the extension of the general copyright term. Much to my shock and relief, no such extension is in this bill. There are aspects that extend term in some areas such as sound recording and cinematographic works. There is no general extension to life plus 70.
I do not think that this battle is over, as the transitional period means term extension will likely be in the eventual Copyright Act reform that comes from the committee report, but for now the term will be maintained. I hope the government reads the report from the industry committee and seeks to mitigate the damage to Canadian copyright law that comes from the USMCA.
Why is extending the term not the right move? It is because if Canada extends our general term by 20 years, that will create a 20-year black hole in which no works will enter the public domain. For two decades, no work will become open for Canadians to access it in any format they wish without the permission of the rights holder. This will cast a chill on a large amount of innovation and creativity in our country.
The purpose of copyright was to make sure that creators of a work could enjoy the benefits of their hard work and creativity without someone else stealing it. Protecting that work for the creator’s entire life, and for 50 additional years so that their descendants could profit off the work, is a good idea. When we are talking about adding 20 more years, we start to blur the purpose of copyright.
No artist is deciding not to create art because only three generations of their descendants, instead of four, may hold the rights to that art. To suggest otherwise is an absurd proposition. Artists create because they love what they do and want to put their art into the world. The only reason to further extend copyright is to ensure rights holders, often large corporations, can continue to profit off that intellectual property for decades.
In the past, I have been tempted to call the government a Mickey Mouse operation, but that would not be fair. Mickey Mouse runs a hyper-efficient and effective operation when it comes to expanding copyright protections. “Efficient and effective” are words that I would never use to describe the government.
Any time the copyright on early Disney cartoons is due to lapse, the U.S. Congress just extends them. It happened in 1976, the year I was born. It happened again in 1998 and will probably happen again in a few years.
Extending the copyright term is not about protecting artists. It is about protecting large companies that own the rights for decades after the artist’s death. To see the impact large corporations can have, utilizing intellectual property law, we only need to look to my riding in the Okanagan Valley.
A small, family-run coffee shop that has operated for five years now has to change its name because of a lawsuit from a multibillion dollar company. I believe it could win if the shop fought it, but it literally cannot compete with such a giant corporation, as it would be far too expensive for this family. That is the risk in further expanding intellectual property powers for rights holders. They can use them to bludgeon small business and independent creators.
Respected Canadian copyright expert Jeremy de Beer, who presented to the Copyright Act review, stated that the trade agreement’s intellectual property chapter was “an American win”. Thankfully, despite Liberal mismanagement of the negotiations, Canada was able to salvage the notice and notice regime and avoid implementing an American-style enforcement mechanism, which should not happen.
Over the coming months and years, we will have to work as a body to try to mitigate the damage from the intellectual property chapter in this agreement to which the Liberals agreed. I can only hope we ensure that Canadian and international content remains open and accessible and that innovation and creativity does not suffer serious hardship.
Canadian copyright law has managed to be distinct from, and I believe in many respects superior to, American law. Unfortunately, with this agreement, that will no longer be the case. This deal contains a forced alignment of our framework to the American one, and the Canadian consumers and creators will be worse off because of it.