Copyright Term Extension in Canada and the Interesting Case of Broadview Press: Is it “Playing the Victim” or Just “Playing the Game”?

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Last week I examined some of the tendentious arguments put forward to oppose bringing Canada’s term of copyright protection into alignment with that of most developed countries. Canada made a commitment in the new NAFTA that it will extend the term of protection by twenty years for most works covered by copyright, although exactly how and when that will occur is still not clear. I quoted a CBC broadcast/podcast (“The Cost of Living”) that professed to examine in a balanced way the pros and cons of extending Canada’s copyright term, yet decided to focus primarily on the supposed costs. It quoted Howard Knopf, a well-known copyright critic who has done some unsubstantiated back-of-the-envelope estimates of the costs to Canada, estimates that are—to say the least—fanciful and ungrounded in any semblance of analysis.

After quoting Knopf, the program then interviewed Don LePan, publisher of Broadview Press and a well-known opponent of extending the term of copyright protection. LePan has published op-eds on the subject, and recently testified before the Parliamentary Committee reviewing the Copyright Act. While LePan wraps himself in the flag of public interest, the real reason he opposes copyright extension in Canada is because it could harm his own economic self-interest. (Nothing wrong with that, but let’s call a spade a spade). A large part of his business model is publishing anthologies or editions of works that are in the public domain in Canada; if they are not in the public domain he would have to acquire the rights which, from his perspective, is either too expensive, too much trouble or perhaps the rights are not available. Thus on the podcast he talks about the edition of The Great Gatsby that Broadview has put out in Canada (not available in the US because the work is still under copyright protection there), and the great contribution to learning that this annotated work has provided—except to US students who cannot legally access it.

It is worth noting that the Canadian Broadview edition is copyrighted, just not by F. Scott Fitzgerald. The 2007 Canadian copyright is asserted by the editor (Michael Nowlin) for the commentary and other editorial input he contributed to the core work, with the rights held by the publisher (Broadview). The notation on the fly-leaf is quite clear;

“The use of any part (emphasis added) of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recorded, or otherwise, or stored in retrieval system, without prior written consent of the publisher—or in the case of photocopying, a licence from Access Copyright (Canadian Copyright Licensing Agency)…is an infringement of the copyright law”.

All standard stuff, except that the greater part of this Canadian copyrighted book is the verbatim text of Fitzgerald’s work, which is in the public domain in Canada yet still under F. Scott Fitzgerald’s copyright in the US, where his estate has been assiduous in controlling use of the work in order to protect Fitzgerald’s literary heritage.  (It is scheduled to enter the public domain in the US on January 1, 2021). Do I smell a bit of hypocrisy in LePan’s position? Or is he just doing what is good for business? I can’t attribute motives, just lay out the facts.

I would note that Broadview Press is also meticulous in copyrighting its other anthologies of public domain works, so don’t plan on freely reproducing any of their publications just because the core work is in the public domain. Broadview rightly expects that a licence will be obtained if their edition is reproduced. What about the cost to the consumer of the reproduced works? If you check the price of the Broadview edition of The Great Gatsby in Canada against US editions of the work (where the copyright is still held by Fitzgerald’s estate), there is essentially no difference.  So much for the argument that a shorter copyright term will mean lower costs for users; in fact it is competition in marketing and distribution not absence of copyright that lowers costs.

In his testimony to Parliament on the Copyright Act, LePan argued for a shorter copyright term not just as a publisher but also as an author himself and as the literary executor of the estate of his late father, the poet and novelist Douglas LePan. He stated that he would be happy if his own work entered the public domain earlier than the current statutory term so that it could be better enjoyed by the public and also he would prefer to see his father’s work enter the public domain even before 50 years had elapsed beyond his death. Well, Mr. LePan, why wait? You can act today (assuming you still own the rights to your works). As I am sure you are well aware, you can issue a Creative Commons licence at any time for both your work and that of your father, removing any impediment to access on the part of the public and any requirement to pay royalties. In case you are not sure how to do this, here is a handy “how to” video that shows what a Creative Commons licence is and how an author can grant one for any work to which they have the rights. The licences come in various shapes and sizes, according to the extent of access that the rights-holder wishes to grant. While it is not possible to legally renounce copyright (as far as I know), a broad Creative Commons licence has virtually the same impact as putting the work into the public domain.

While CBC’s podcast happily quoted Knopf on the supposed costs of copyright extension and gave airtime to LePan to push his particular point of view, it seemed unable to find anyone who could speak in favour of extending the term of copyright protection. They didn’t look very hard. IP lawyer Barry Sookman has written a number of blogs explaining the benefits to artists and to Canada of extending the term of copyright protection. (here, here, and here, for example), and is a prominent commentator. But maybe Sookman wasn’t available to comment—or maybe CBC didn’t try very hard to present both sides of the argument. So CBC, if you are listening, perhaps you could do more thorough research next time and present a more balanced analysis of the issue for your listeners.

Despite the one-sided hyperbole about the “negative” impact of copyright term extension, when the USMCA/CUSMA comes into effect, it is going to happen in Canada. The Canadian cultural community will finally be able to move on and turn to other problems within the Copyright Act that need addressing, such as fixing the contentious “education” fair dealing exception that has led to free-riding by educational institutions at the expense of educational publishers—including Broadview Press.  I find it just a touch ironic that when it comes to fixing fair dealing abuses, Don LePan stands firmly with the rest of the publishing and artistic community in Canada. He understandably wants the copyright in Broadview’s works to be respected, and to be paid for the use of Broadview-published content by academic institutions. It’s just that he has built his business model on exploiting works where no licensing of rights is required, and wants to keep it that way for as long as possible.

While term extension will happen, transition to the new system will inevitably be a bit complicated. First, there is likely to be a transition period before the extension becomes law. Additionally, works currently in the public domain in Canada will not be retroactively placed back under copyright protection so Broadview will continue to be able to publish its version of The Great Gatsby in Canada (and other works currently in the public domain)–and readers in the US will still not be able to legally purchase a copy of this edition until F. Scott Fitzgerald’s US copyright expires next year. But going forward, things should become a bit more straightforward as the term of copyright protection in the two countries comes into broad alignment. Ultimately that will benefit authors, publishers and readers in both Canada and the US.

Meanwhile one has to wonder if public domain publishers like Broadview Press are “playing the victim”, (while portraying themselves as defenders of the “public interest”), or are simply “playing the game” in order to have continued access to as much content as possible without having to licence the rights from copyright holders.

© Hugh Stephens 2020. All Rights Reserved.

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