“Copyright Trivia”: Some Works Get Longer Protection in Canada than in the US

I hope this headline got your attention. It may be a bit of “copyright trivia” but it is nevertheless true! Read on.

It is axiomatic among many of my American friends in the content industry that copyright protection in the US, while not perfect, is better than the protection afforded to copyrighted works in Canada. That was certainly the thrust of much of the US comment at the time of the revision of Canada’s Copyright Act in 2011-12 and is a theme repeated regularly in inputs to the annual USTR Special 301 process by groups such as the International Intellectual Property Alliance (IIPA) and in the 301 Report itself. And they are not wrong. Canada’s copyright system is not terrible, but it could certainly be improved. Among the improvements needed are revisions to overly-wide fair dealing exceptions such as those for “education” and “user generated content” that were introduced in the revised 2012 Act.

Canada has also not moved to align itself with the growing international consensus that the term of copyright protection is more appropriately the life of the author (known as pma, or post mortem auctoris) plus 70 years, as adopted by the US, all EU countries and a number of others. Canada still clings to the Berne Convention minimum of pma plus 50 years. There are other copyright issues I could discuss but I want to stay with the term extension topic and highlight an unusual case where a work still under copyright protection in Canada is already in the public domain in the US. As a result, a Canadian publisher is considering launching his edition of this work (to which he does not have the rights) in the US rather than at home in Canada. How could this be if the US has a longer term of protection?

My attention was drawn to this case by a letter to the editor of the Globe and Mail, titled “Copyright, Chapter and Verse” written by Don Lepan, CEO of Broadview Press in Nanaimo, BC. Broadview is a small independent Canadian publisher with approximately 600 titles in print. Many of these appear to be anthologies or annotated editions of classics, such as Jane Eyre, Ralph Waldo Emerson, Jean-Jacques Rousseau and Canterbury Tales, all of course long in the public domain. Lepan was writing to express his opposition to any move to extend the term of copyright protection in Canada, given that a twenty-year extension had been agreed to in the original text of the Trans-Pacific Partnership (TPP) Agreement. However, term extension is one of the articles in the IP chapter of the revised TPP (the so-called TPP11 or the newly-named Comprehensive and Progressive Trans-Pacific Partnership), now being negotiated without the participation of the US, that has been “suspended” for the time being. As I commented recently, this suspension may have more to do with securing negotiating “coinage” for Canada for a revised NAFTA agreement than a desire to walk-back the commitment. Whatever the motivation, pma plus 50 remains the standard in Canada for now.

Lepan was objecting to any extension of the term of protection in Canada for strictly business reasons. Broadview wants to publish a new edition of E.M. Forster’s 1908 novel, A Room with a View. Apparently the edition will be supplemented with additional background documents and may be ready to publish in 2019. Forster died in 1970 and under current Canadian law, the book enters the public domain on January 1, 2021. In the UK, where the copyright term is pma plus 70, the book is protected for the owners of the rights until 2041. Lepan states in his letter,

“If Canada were to go along with the further extended copyright restrictions (sic) that have been proposed under earlier versions of the TPP, we would not be able to publish an edition of A Room with a View in Canada until 2041…”

Of course he could publish tomorrow if he acquired the rights for Canada but Broadview represents a category of publishers who either do not want to negotiate (and pay for) for the rights or perhaps cannot acquire the rights to the book. Once the book is in the public domain, the ability to avoid payment for royalties and rights will obviously keep their costs down to some extent, although this will not necessarily be passed on to the reader. As any visitor to a book shop can attest, it is difficult to tell, by price alone, which books are still under copyright and which are in the public domain. It goes without saying that Broadview will not be giving this book away once it is published. Their edition of the Selected Writings of Ralph Waldo Emerson retails for $19.95 for example, not an exorbitant price but certainly not a giveaway.

What caught my attention in the letter, however, was not so much Lepan’s objection to extending the term of copyright protection in Canada but rather his statement that if the book is ready for publication in 2019 he would have to release it in the US since it is in the public domain there but remains protected in Canada until 2021. I was puzzled by this given the general impression that creators’ rights are protected for a longer period south of the 49^th parallel than in Canada. It may be generally true, but not always, as in this case. Here is the explanation.

A Room with a View was first published by Edward Arnold in the UK in 1908. As mentioned earlier, Forster died in 1970, thus protecting it in Canada until January 1, 2021. Although there is some confusion, it appears the first US edition was published by Alfred A. Knopf in 1922. Several booksellers list the first US edition as having been published in 1923 but given that the book is apparently now in the public domain in the US (Project Gutenberg makes it freely available so I assume it is generally accepted that it is a US public domain work), it must have been published prior to 1923. Owing to the history and peculiarities of US copyright law, any work published in the US prior to 1923 was in the public domain by 2017. The US Copyright Act of 1909 provided for a period of only 28 years of protection from the date of publication although this could be renewed once for the same period of time in the last year of the first period of protection. If the work was first published in the United States in 1922, and properly renewed, it would thus have originally been protected until 1978. The Copyright Act of 1976 provided for a term of pma plus 50 years (later extended in 1998 to life plus 70) for any new works. However for works already under copyright, according to the US Copyright Office;

“The 1976 Copyright Act carried over the system in the 1909 Copyright Act for computing copyright duration for works protected by federal statute prior to January 1, 1978 (when the 1976 Act came into force), with one major change: the length of the renewal term was increased to 47 years. The 1998 Copyright Term Extension Act increased the renewal term another 20 years to 67 years. Thus the maximum total term of copyright protection for works already protected by January 1, 1978 has been increased from 56 years (a first term of 28 years plus a renewal term of 28 years) to 95 years (a first term of 28 years plus a renewal term of 67 years). Applying these standards, all works published in the United States prior to January 1, 1923 are in the public domain”

(Even if A Room with a View was not first published in the US until 1923, it will still fall into the public domain in the US on January 1, 2019, two years earlier than in Canada).

So there you have it. If Broadview intends to release its edition in 2019, they can publish A Room with a View in the US without obtaining the rights as the work is in the public domain. Not so in Canada where they will have to wait, under current legislation, until 2021. An interesting piece of “copyright trivia”.

One of the ironies of Lepan’s position is that if he adds sufficient new material to the edition that he intends to publish, those additions could qualify for copyright protection. There are clearly different perspectives on whether the extension of the term of protection is a good idea. Most authors and publishers support extension since it provides them a greater potential return on investment for their rights. Some publishers of public domain works clearly take a different view and if they can “work the system” by exploiting gaps in copyright coverage, they will do so.

© Hugh Stephens, 2018

Author: hughstephensblog

I am a former Canadian foreign service officer and a retired executive with Time Warner. In both capacities I worked for many years in Asia. I have been writing this copyright blog since 2016, and recently published a book "In Defence of Copyright" to raise awareness of the importance of good copyright protection in Canada and globally. It is written from and for the layman's perspective (not a legal text or scholarly work), illustrated with some of the unusual copyright stories drawn from the blog. Available on Amazon and local book stores. View all posts by hughstephensblog