The Canadian government plans to extend the term of copyright from the international standard of life of the author plus 50 years to life plus 70 years without mitigation measures that would have reduced the harms and burden of the extension. The Budget Implementation Act, a 443 page bill that adopts the omnibus approach the government had pledged to reject, was posted late yesterday by Finance Minister Chrystia Freeland’s department and could be tabled in the House of Commons as early as today. Page 328 of the bill features the shoehorned amendments to the Copyright Act, including an extension of the term of copyright. While the government is not making the change retroactive (meaning works currently in the public domain stay there), no one seriously expected that to happen. What many had hoped – based on the government’s own committee recommendations and copyright consultation – was to introduce mitigation measures to reduce the economic cost and cultural harm that comes from term extension. Instead, Freeland, Prime Minister Justin Trudeau, Innovation, Science and Industry Minister François-Philippe Champagne, and Canadian Heritage Minister Pablo Rodriguez have chosen to reject the recommendations of students, teachers, universities, librarians, IP experts, and their own Justice Minister.
I have written multiple posts in recent weeks on the copyright term extension issue once the measure was buried unannounced in Budget 2022. The posts have identified the loss of Canadian authors to the public domain for a generation, the lost historical access for some of Canada’s most prominent figures, and the limited benefit to creators, citing Bryan Adams, who in a submission on reversion rights, went out of his way to say that extending the term of copyright “does not put money in the pockets of creators.” To the extent the government discusses this at all – burying it in a budget bill is the surest sign it would prefer no one notices – it is likely to claim that it has no choice. The extension was required under the Canada-US-Mexico Trade Agreement and it is fulfilling its trade obligation.
If that emerges as the talking point, it should be called out as false. Freeland has a long history with copyright term and surely understands the costs to Canadians. Make no mistake: the decision to implement copyright term extension without mitigation measures is the government’s choice.
It is the government’s choice to reject Canadian universities, who stated in their consultation submission:
Registration is viewed as an ideal solution, as it has the potential to strike the right balance between allowing rights-holders the opportunity to continue benefiting from commercially successful works while simultaneously allowing the vast majority of works to enter the public domain after the standard life-plus-50.
It is the government’s choice to ignore Canadian students, who said:
CASA is aligned with the INDU Committee in calling for the amendment of the Copyright Act “to ensure that copyright in a work cannot be enforced beyond the current term unless the alleged infringement occurred after the registration of the work.”This change, as noted in the INDU Committee’s review, would have multiple positive impacts on copyright in Canada. Firstly, it would allow copyrighted materials to continue to enter the public realm after 50 years following the life of the author, unless the author proactively reaches out to register their work for the remaining 20 years. This would increase access for post-secondary students and other content users while also promoting copyright registration, therefore increasing registrations and increasing transparency in the system.
It is the government’s choice to dismiss Canadian teachers, who argued:
A registration system would improve the quality and availability of ownership information, give rights holders that want it an extra 20 years of protection, while allowing works that no longer have commercial value, out-of-commerce, and orphan works to enter the public domain. The registration system would also greatly decrease, if not eliminate, the number of orphan works during the 20-year extension.
It is the government’s choice to reject Canadian librarians – librarians! – who noted:
the U.S. – the prime mover for CUSMA negotiations, and a contracting party for the same relevant international copyright agreements as Canada – itself currently provides for a more robust system of copyright registration than has ever existed in Canada. The type of works to which the U.S. registration requirements apply, and the type of relief available for unregistered works, is tailored under the U.S. system to accommodate relevant international obligations.
Therefore, registration is not an “all or nothing” proposition: Canada could place limitations on the types of remedies available to holders of unregistered copyrights as a means of incentivizing such registrations. As such, a registration system is not an insurmountable problem under international law; approaches could be developed which would not violate Canada’s international obligations.
In fact, it is the government’s choice to reject librarians from around the world, who stated:
We strongly encourage the establishment of a registration system for the additional twenty years of protection. We recommend the development of a publicly available database to gather works that fall within the extended period of copyright protection. If the work is not registered, meaning, rightholders did not actively look to protect his or her works, the latter could be used without issue.
It is the government’s choice to ignore Canadian IP experts from coast-to-coast, who studied the issue and concluded:
A registration requirement imposed on the last 20 years of protection would be consistent with the prohibition on formalities laid down in Article 5(2) of the Berne Convention, since the prohibition applies only with respect to the minimum requirements for protection provided under the Convention, i.e. for the duration of the life of the author plus fifty years post mortem auctoris. The prohibition does not apply to a prolongation of the protection conferred under the Convention. Simply put, there is no serious basis that we can see for the cursory conclusion that a registration requirement presents “serious questions” in light of Canada’s international obligations. Formalities would not be a precondition for rights acquisition but only for accessing additional protections during the supplementary (Berne- plus) term. Such formalities may not be “the norm internationally” (though the Consultation Paper notes that they do play a mitigating role in the US copyright system), but that has no bearing on whether they are an available option consistent with our international commitments in respect of the surplus term. We are confident that they are.
And it is the government’s choice to sideline the views of its own Justice Minister, David Lametti, who has written:
we might consider strengthening these proposals [on copyright term] with a registration requirement, especially for longer terms, putting some of the onus on creators themselves of identifying and protecting works of ongoing value.
That’s the choice Freeland, Trudeau, Champagne, Rodriguez and the government are making. Their choice. Canadians’ loss.