After years of rejecting copyright term extension beyond the international law standard of life of the author plus 50 years, the Canadian government caved to pressure from the United States by agreeing to the equivalent of life of the author plus 70 years in the U.S.-Canada-Mexico Trade Agreement (USMCA). As part of that agreement, Canada obtained a 30 month transition period that would allow for consultation on how to implement the copyright term obligation. That consultation was launched late yesterday, with the two departments responsible for copyright – ISED and Canadian Heritage – launching the consultation and a consultation document. The consultation period is very short with responses due by March 12, 2021. The department says that all responses will be made available online once the consultation is concluded.
Given the importance of the issue, the government should have established a longer consultation period. Thirty days in the midst of a pandemic gives the sense of “consultation theatre”, where officials have already made up their minds and are more interested finding sources of validation, rather than a genuine consultation. In fact, there arguably already was a recent consultation, but it appears that the resulting recommendation is not in line with the government’s preferred choice.
The 2019 copyright review process led by the Industry Committee specifically addressed this issue in its recommendations, with the committee noting that it heard arguments both in favour and against copyright term extension (that is in contrast to the Canadian Heritage report designed to support the authoritative review which said it did not hear from anyone who opposed term extension). The committee recognized there may no alternative but to extend copyright given the USMCA, but it recommended limiting the harm by only doing so if the agreement is ratified. Moreover, it recommended 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.
I have written previously about the benefits of registration for the additional 20 years, which would allow for rights holders to easily obtain the additional protection, while ensuring that many works without commercial value enter into the public domain at the current international standard.
Unfortunately, the consultation document signals that the government is not inclined to support the committee’s recommendation. While it does seem to want some “accompanying measures” to address the negative costs of term extension, those are largely framed in the consultation document within the context of more licensing, such as expanding the orphan works licensing system or collective licensing. The consultation document cites three other possibilities that include permitting the use of orphan works or out-of-commerce works by libraries, archives and museums (LAMs) subject to equitable remuneration, an exception for LAMs using works in their last 20 years consistent with their public interest missions, or an exception for LAMs using works that are more than 100 years old. The fact that the exceptions ignore individual users reinforces that nearly two decades of Supreme Court jurisprudence on users’ rights has still not fully penetrated the policy departments at Industry and Canadian Heritage.
I hope to submit a response and will certainly post it when I do. At first glance, what is most striking is the timidity of the recommendations, with the government seemingly afraid to establish a made-in-Canada approach that better reflects Canadian copyright values. That approach was at the heart of the 2012 reforms, where Canada led by example, providing models for other countries on issues such as the notice-and-notice system, protection for non-commercial user generated content, caps on statutory damages for non-commercial infringement, and the enabler provision to support enforcement. This consultation document moves in the precisely the opposite direction, relying on what others countries are doing as the basis for Canadian options.
This reluctance to craft Canadian policies in the national interest is particularly disappointing given that the same government used the opportunity to re-think the copyright provisions in the Trans Pacific Partnership to suspend the copyright term extension provision. In other words, it knows that copyright term extension is bad policy that will lead to enormous costs for Canadians, particularly in the education and library sectors hard hit by the COVID-19 pandemic. That is precisely why it suspended the term extension provisions when presented with the opportunity to do so. In fact, last year, Canadian Heritage commissioned Professor Paul Heald to study these issues. He discussed how copyright term extension is a tax on consumers in this Law Bytes podcast episode.
Further, notwithstanding the consultation document claims that registration “do not appear to be the norm internationally”, that is a feature, not a bug. Canada has the opportunity to lead with a balanced copyright approach to term extension that mitigates harm, provides creators with protection, complies with international law, and sets a standard for others to follow. The consultation document does not inspire confidence, but there is an opportunity to ensure that those seeking a progressive, innovative implementation to term extension such as registration are heard. Canadians have one month to tell officials they expect better before their government enacts reforms that will exact a significant cost on the public and lead to two decades of a lost public domain.