The final Trans Pacific Partnership intellectual property chapter leaked this morning confirming what many had feared. While the Canadian government has focused on issues like dairy and the auto sector, it caved on key copyright issues in the agreement. As a result, works will be locked out of the public domain for decades at a cost to the public of hundreds of millions of dollars. Moreover, the government will “induce” Internet providers to engage in content blocking even where Canadian courts have not ruled on whether the content infringes copyright. As a result (and as expected – this was raised years ago), the government’s “made in Canada” approach to copyright – which it has frequently touted as representing a balanced approach – faces a U.S. demanded overhaul. In fact, even as other countries were able to negotiate phase-in periods on copyright changes, the Canadian negotiators simply caved.
The biggest change is a requirement to extend the term of copyright from life of the author plus 50 years to life plus 70 years. The additional 20 years will keep works out of the public domain for decades. The New Zealand government estimates that this change alone will cost NZ$55 million per year for a country that is one-ninth the size of Canada. Moreover, New Zealand was able to negotiate a delayed implementation of the copyright term provision, with a shorter extension for the first 8 years. It also obtained a clear provision that does not make the change retroactive – anything in the public domain stays there. Malaysia also obtained a delay in the copyright term extension requirement.
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The government’s surprise decision to include copyright term extension for sound recordings and performances in this week’s budget is being painted by the music industry as important for Canadian artists. But sources suggest that the real reason for the change is the result of direct lobbying from foreign record labels such as Universal Music and Sony Music, who were increasingly concerned with the appearance of public domain records from artists such as the Beatles appearing on store shelves in Canada. As discussed in this post, Canadian copyright law protects the song for the life of the author plus 50 years. However, the sound recording lasts for 50 years. That still provides decades of protection for record companies to profit from the records, but that is apparently not long enough for them.
Earlier this year, a Canadian company called Stargrove Entertainment began selling two Beatles records featuring performances that are in the public domain in Canada. The records were far cheaper than those sold through Universal Music and were picked up by retail giant Walmart, who continues to list the records on their website (Can’t Buy Me Love, Love Me Do). There were additional titles featuring the Rolling Stones, Bob Dylan, and the Beach Boys. Some of the titles are still available for sale through Walmart.
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On World Book and Copyright Day, it is worth noting how Graham Henderson, the President of Music Canada (formerly the Canadian Recording Industry Association) characterized the government’s decision to extend the term of copyright in sound recordings and performances:
With each passing day, Canadian treasures like Universal Soldier by Buffy Sainte-Marie are lost to the public domain. This is not in the public interest. It does not benefit the creator or their investors and it will have an adverse impact on the Canadian economy.”
This statement raises several issues. First, it should be noted that the song Universal Soldier by Buffy Sainte-Marie is not in the public domain nor will it be entering the public domain for decades. As the songwriter, Buffy Sainte-Marie still holds copyright in the song and will do so for her entire lifetime plus an additional 50 years (Howard Knopf further explains the issue of copyright term in songs in this post).
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Wallace McLean has posted his annual celebration of public domain day, listing dozens of authors whose work entered into the public domain in Canada on New Year’s Day. Notable names this year include Nobel Prize winners William Faulkner and Herman Hesse as well as poet e.e. cummings. The list is […]
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Gareth Hughes, a New Zealand Green Party MP, has posted on the impact of extending the term of copyright in New Zealand from life plus 50 years to life plus 70 years as demanded by the Trans Pacific Partnership. Hughes calls attention to many leading NZ works that would be […]
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