Who among us has not purchased the ubiquitous Girl Guide cookies (aka Girl Scout cookies in the USA), available outside a supermarket or in a mall of your choice every spring. Even if you are not a fan of this particular version of the oreo cookie, one takes satisfaction from knowing that the money is going to a good cause. The Girl Guides (or Girl Scouts) is a great organization, dedicated–according to the website of the Girl Guides of Canada (GGC)–to making a “positive difference in the life of every girl and woman who experiences Guiding so she can contribute responsibly to her communities.” Its mission is to enable girls “to be confident, resourceful and courageous, and to make a difference in the world”. These are laudable goals, and one would expect that money provided to the Guides through cookie sales or direct donation would go directly to support programs for girls. Thus it was with some degree of surprise that I learned that at least some of the money raised goes for political causes that are not exactly central to Guiding, such as lobbying the Parliament of Canada to oppose any extension to the term of copyright protection.
It could be argued of course that it is legitimate for organizations like the Girl Guides to take positions on social issues that may affect women and girls, even if it is not part of the core mandate. But copyright extension? What, you may ask, is the core issue for women and girls that justifies using the resources of the organization to oppose a measure that many countries, including the USA and the UK, have already adopted? Somehow the Girl Scouts of the USA have been able to thrive under a legal regime where copyrighted works get a few extra years of protection, and in the UK—the original home of the Guiding movement–a copyright term of 70 years has not put Guiding out of business. However, according to the Girl Guides of Canada, if a similar regime were adopted in Canada this would be inimical to the achievement of their objectives.
I stumbled across the activist position of the GGC thanks to a blog by Michael Geist, a vociferous opponent of the Trans-Pacific Partnership (TPP). One of his many objections relates to Canada’s agreement in the negotiations to extend its term of copyright protection by an additional 20 years. The Parliament of Canada held hearings to seek public input on this decision. While groups such as the Society of Composers, Authors and Music Publishers of Canada (SOCAN) and the Canadian Media Producers Association not surprisingly supported the twenty-year extension that Canada agreed to in the TPP others, such as Geist, were opposed. Those opposed were as predictable as the supporters but I was gobsmacked when I learned that the Girl Guides of Canada had submitted a brief in opposition. Why would an organization like the Girl Guides take a position either for, or against, an issue like copyright term extension? Let’s find out.
The basis of the objection by the Girl Guides of Canada to an extension of the term of copyright protection seems to be the premise that unless works in the Guides collection of historical documents are in the public domain, they cannot be used or shared to promote the Guide movement. In the Guides’ brief to the Parliamentary Committee, a hypothetical example is given of the centenary of the eponymous Girl Guide cookie in 2027. The argument is put forward that if an early photograph of a girl selling cookies were to enter the public domain under the current 50 year term in 2025, then an extension by twenty years would mean that “GGC would not be able to use such a photograph until 2045 thereby missing the opportunity for the 100th anniversary.”
This argument makes absolutely no sense from a couple of perspectives. First, just because a photograph is not in the public domain does not mean that it cannot be used. Literally hundreds of thousands of photographs are used regularly that are still protected by copyright, including almost all the photographs used in current Guide publications. Second, the construct used to make this claim is completely artificial. If the term of protection hypothetically expired in 2025, then one has to assume that the owner of the copyright hypothetically died in 1975 (50 years ago). Where does that assumption come from?
Assuming that the photograph had something to do with the early sales of the cookie, like the ones used on the website of the Girl Scouts of America, dating to the 1920s—and which apparently pose no difficulties in being displayed under US copyright law which provides for a longer term of protection—then one could assume that the photographer was likely an adult in the 1920s when the photo was taken. That photographer could have left this world at any time after the photograph was taken, for example in the 1930s. The photo could have been in the public domain for decades or, potentially, the photographer was very young and lived to a ripe old age, and the photograph is still under copyright protection for a few more years. In either case, the example given of copyright term extension denying to the GGC the right to use a photograph taken of early sales of cookies to celebrate the “centenary of the cookie” is totally spurious.
A similar “hypothetical” example is given of early log books created by girls in the movement, set to enter the public domain (again, hypothetically) in 2017. The Guides state that with an extension of copyright term as envisaged by the TPP, “GGC cannot share this log book until 2037 and therefore misses the opportunity to contribute this unique primary source on the history of girls and women in the context of Canada’s 150th anniversary in 2017”. Nonsense!
The brief concludes with the ringing but inaccurate statement that, “Overall, a shorter term of copyright is beneficial to GGC, our researchers and all Canadians as our archives are both an important corporate asset and a treasured national asset…The sooner our holdings enter the public domain, the sooner we can celebrate our shared heritage and the positive progression of girls and women through Girl Guiding. The proposed term of copyright extension in the TPP significantly delays our ability to share and celebrate our documentary heritage.” If this statement were true, which it is not, it would imply that any restriction of works entering the public domain is detrimental to the preservation of documents and the sharing of heritage. There is no evidence to support this. To pursue this argument to its logical conclusion would require the abolition of copyright, a concept that has developed to promote creativity and protect works over several hundred years.
Maybe I shouldn’t be picking on the Girl Guides, but I find it a particularly irritating example of ill-informed intervention by an organization that should know better, and which ought to have better things to do than to cook up contrived and spurious examples of how a modest improvement in copyright protection will impede their good work. In fact, having been a father to a daughter who was involved with the Guide movement a few years ago, I was moved to write to Jill Zelmanovits, the CEO of Guides Canada. That letter, a copy of which is attached below, was sent almost 2 months ago. To date, there has been no reply. So next time you buy those Girl Guide cookies, hope that the money is going to the welfare of the girls and not to some misguided political lobbying effort.
© Hugh Stephens 2017. All Rights Reserved.
April 12, 2017
Ms. Jill Zelmanovits, Chief Executive Officer
Girl Guides of Canada-Guides du Canada
50 Merton Street,
Toronto ON M4S 1A3
Dear Ms. Zelmanovits,
I write as a supporter of the Scout and Guide movement (my daughter was in Brownies when much younger and my wife was a Leader), but also as someone interested in and concerned with copyright issues. I spent a number of years working in copyright industries and write a blog on international copyright issues. (www.hughstephensblog.net).
In reviewing the testimony presented to the House Standing Committee on International Trade that was reviewing Canada’s position on the Trans-Pacific Partnership I noted with interest that the Girl Guides of Canada had submitted a brief. I was intrigued as I was not sure what impact the TPP-either Canada joining or not joining—would have on the Guide movement, and so of course I read your brief. I was, frankly, astounded that an organization like GGC would take a position on an issue like copyright term extension, an issue that has nothing to do with the aims and objectives of the organization, as laid out in your own website.
Not only that, but your characterization of the issue (the “hypothetical” examples that you provided), is completely misleading. Apart from contriving an example that resulted in a particular photo coming into the public domain in 2025 (just in time to be used to celebrate the 100th anniversary of the sale of Girl Guide cookies in Canada if the 50 year term was maintained), the implication is that any material not in the public domain cannot be used by GGC. This is completely at variance with the facts. The vast majority of material that is consumed by the public is not currently in the public domain, including all the photos that you use in your annual report. The hypothetical photo in question could just have easily come into the public domain in 1980 (with a 50 year term, assuming the photographer passed away in 1930, or in the year 2000 if Canada had adopted the 70 year standard now used by the majority of developed countries). Or, it could still be under copyright if the photographer was 20 at the time the photo was taken in 1925 and did not die until he or she was 80. The example given is totally disingenuous and, moreover, misleading since to imply that GGC cannot use any material except material that is in the public domain is clearly wrong. Even assuming that the photograph was an “orphan work”, ie. the author could not be located, there are mechanisms to publish such material.
I am mystified as to why you would take the GGC into this issue, which is clearly irrelevant to your core mandate. As a potential donor to the work of the GGC, I would have serious questions about the politicization of the organization and the use to which my funds were being put. I am contemplating writing a blog on this issue, and I would welcome clarification of the position of the GGC on the issue of copyright term extension, and why you felt it important enough to take the time and expense to submit a brief on the subject to the Parliamentary committee. Sincerely,