The Copyright Needle in the Budget Haystack (And Why Requiring Registration for Copyright Extension is a Really Bad Idea)

There it was! The copyright needle in the budget haystack. As plain as day–buried on p. 274 of Canadian Finance Minister Chrystia Freeland’s 280 page 2022 budget under “Other Legislative Measures” along with a grab-bag of about 40 other measures.  These ranged from legislation to enable Canada’s participation in the Lunar Gateway, to Criminal Code amendments to ban the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust, to dealing with clean drinking water and better infrastructure for First Nations communities by repealing the Safe Drinking Water for First Nations Act (?), and so on. Almost four dozen unrelated ornaments hung on the budget Christmas tree. Item number 5 was labelled “Amendments to the Copyright Act”.

Why would an amendment to the Copyright Act be buried in the budget (along with the other assorted seemingly random legislative measures)? Because it’s a convenient way to pass legislation, that’s why. You scoop up all the legislative loose ends and you append them to the budget bill, and if the budget passes, and it will, the other attached pieces of legislation pass as well. Given that the Liberal government is in a minority situation, yet has just signed a “confidence and supply agreement” with the opposition New Democratic Party (NDP) by which the New Democrats will support the government in confidence votes for the next three years provided that the Liberals add some social programs advocated for by the NDP, like a dental plan and a pharmacare plan, to their “to do” list, then bundling loose ends and even some potentially controversial legislative items into a budget bill is a good way of ensuring that these legislative amendments become law with as little fuss and scrutiny as possible.

This is also a well-known tactic in the US Congress where unrelated pieces of legislation get attached to “must-pass” money bills on a regular basis. That is how the CASE Act, a worthy piece of legislation that had been blocked by just one Senator, was passed, as I wrote last year (“Making Sausage: How the CASE Act Finally Became Law”). That legislation created a Copyright Claims Board within the US Copyright Office, a sort of “small claims court” for copyright infringements. The CASE Act will help small creators bring infringement claims without having to resort to expensive litigation but had been blocked by Sen. Rod Wyden of Oregon. However, it was added to the 5,593 page, $1.4 trillion Consolidated Appropriations Bill, 2021 that funded the COVID relief program and kept the US government functioning. When that Bill finally passed the US Congress, so did the CASE Act, and it is now part of the law of the land. So good things can happen from using this procedure. Sometimes you just “gotta do what you gotta do”.

But back to the Canadian budget, introduced on April 7. With regard to amendments to the Copyright Act that are to be incorporated into the Budget Implementation Bill when it is introduced, (probably in May), the budget document had this to say;

In Budget 2022, the government proposes to introduce amendments to the Copyright Act to extend the general term of copyright protection from 50 to 70 years after the life of the author as agreed under the Canada-United States-Mexico Agreement.

The government is committed to ensuring that the Copyright Act protects all creators and copyright holders. As such, the government will also work to ensure a sustainable educational publishing industry, including fair remuneration for creators and copyright holders, as well as a modern and innovative marketplace that can efficiently serve copyright users.”

Let’s unpack the first part of this statement. There are two elements–what has to happen, and what some anti-copyright elements hope will happen. Extending the term of copyright protection is required to implement Canadian commitments made during the renegotiation of NAFTA, culminating in the NAFTA 2.0 agreement, known as the USMCA (or CUSMA in Canada). While it is a given that this will happen, it is still not completely clear as to how it will be implemented. According to Article 20.89.4 (c) of the USMCA/CUSMA, Canada has 2.5 years from the date of entry into force of the USMCA/CUSMA, which was July 1, 2020, to implement the provision. In other words, it needs to be enacted into legislation by the end of 2022.

Some opponents of term extension, notably University of Ottawa law professor and prolific blogger Michael Geist, have argued that even though Canada has a legal obligation to extend its copyright term, it can do so by instituting a registration requirement for rights-holders if they want to benefit from the added period of protection. In effect this proposal, which was picked up by one of two Parliamentary committees that reviewed the Copyright Act back in 2019, would impose an additional registration process (copyright renewal) on a rights-holder as a condition for gaining access to the additional 20 years of protection. It would put in place a gateway, a hurdle, an additional bureaucratic barrier if you will, as part of Canada’s implementation of its commitment. The objective is to make it more difficult for rights-holders in Canada to access the same degree of protection enjoyed by rights-holders in similar circumstances in the US, EU, UK, Australia, Japan and many other countries. In other words, for those who oppose extending Canada’s copyright term, they grudgingly concede that extension will happen but their intent seems to be to make it as difficult as possible for rights-holders to take advantage of it.

Imposing a copyright renewal registration requirement is an exceedingly bad idea, and one that was not endorsed by the other Parliamentary Committee (the Heritage Committee) that also undertook copyright review. It would impose an additional and unnecessary burden on rights-holders to be able to access the full term of protection they are entitled to for their works but worse, it would create uncertainty and cause confusion for users who would find it difficult, costly and time-consuming to verify whether or not a work fell under the “life plus 50” (life of the author plus 50 years) or the new “life plus 70” term. There is plenty of evidence to demonstrate the downsides of a copyright renewal scheme, using the example of what happened in the United States.

For many years, determining whether or not a work was still protected by copyright in the US was an unnecessarily complex and difficult task owing to the existence of a renewal requirement in US law. And for older works it remains complicated. Under the 1909 US Copyright Act, works copyrighted in the United States prior to January 1, 1978, were originally subject to two consecutive copyright terms, each of 28 years duration. The first term was granted upon registration of copyright, but the second term required an additional registration and renewal after the expiration of the first 28 year term. After the Act was modified in 1976, the second renewal period was upped to 47 years, for a total term of protection of 75 years, assuming renewal was applied for.

A problem was that many rights-holders neglected to renew their copyright. (Anti copyright advocates would no doubt say this was a good thing, but it complicated matters for users who found it difficult to determine if a work was in the public domain or still protected). Failure to renew applied not just to authors of books, but also to rights-holders for movies and other creative works. There are examples of where some of the rights in a movie were renewed, e.g. the screenplay, whereas other elements were not, leading to more confusion. Apart from the injustice occurring from an inadvertent oversight in complying with a somewhat arcane law that deprived a rights-holder (which could be the estate or heirs of the original author) of the economic benefits of copyright, users found it difficult to determine whether a work was still covered. To know for certain whether a work had been renewed, and therefore was still protected by copyright, a user has to search the Catalogue of Copyright Entries maintained by the US Copyright Office.

A good example of the problems caused by imposition of a copyright renewal requirement is illustrated by the FAQ answers provided by this online library website in the US in response to the question, “How can I tell whether a copyright was renewed?”;

One easy way to check, sometimes, is just to see if there was any edition published more than 28 years after the original edition, and see if there’s a renewal notice in that newer edition. This doesn’t always work– a lot of books simply don’t get reprinted– but if there is such an edition, it can be an easy check to make.

Another way that doesn’t involve an exhaustive copyright record search is to write to the author, or their agent or estate, or to the last publisher of the book, and see if they can tell you whether the book’s copyright was renewed…It’s also possible to do a search yourself of the copyright records. For 1978 onward, they’re online at the Copyright Office…

Copyright records prior to 1978 can also be found in print and microform at the Library of Congress, and at other major libraries around the country, including many Federal Depository Libraries…Since a copyright renewal has to be sometime in the 28th year, you’d look for renewals in the records for the original copyright date plus 27 years and the original date plus 28 years. So if the copyright was originally 1941, you’d look at the volumes for 1968 and 1969 to see if there was a renewal…

You can also arrange for the Copyright Office to do the search for you. There’s a form you can fill out and send to them, and they’ll eventually let you know if they find any renewal records, and if so, what they say. This has gotten rather expensive as of late; as of October 2019, the fees amount to $200 per hour (with a 2-hour minimum) for them to search their files for you…”

Simple, eh? This costly and unnecessary step, requiring an additional bureaucracy, is what will happen if Canada unwisely adopts a copyright renewal requirement as part of the process of extending its copyright term. No other country, to my knowledge, has ever imposed such a barrier when it extended its term of protection. (More than 80 countries worldwide have “life plus 70” as their term, another good reason for Canada to join the majority of its trading partners and harmonize its copyright term with theirs, benefiting Canadian creators in the process). As for the US, given the problems presented by copyright renewal, it abolished this system in 1992 when it passed the Copyright Amendments Act, making renewal automatic. The renewal system was messy and complicated as you can see by this US Copyright Office interpretive bulletin. Today in the United States, (indeed for all works created since 1978) the situation is much more straightforward for new works. Authors get a period of protection of “life plus 70” with no renewal or registration requirement. It is beyond comprehension that Canada would want to go backward and institute a renewal requirement.

A further barrier to making the full term of “life plus 70” conditional on a renewal registration is Canada’s membership in the Berne Convention, the international copyright convention to which almost all countries belong. Berne requires a minimum copyright term of life plus 50 years (with no registration requirement) but allows members to apply a longer term if they wish. Members applying a longer term may offer that longer term to rights-holders in all Berne Convention countries or they may limit the benefits of the longer term to nationals only of those countries that offer a reciprocal term of protection. For this reason, Canadian rights-holders will gain the benefit of an extra period of protection in the EU once Canada extends its term and brings it into alignment with the period of protection granted in EU member states.

If Canada instituted a renewal registration requirement to gain access to the additional twenty years of protection, this would almost certainly be a violation of the Berne Convention principle that protection must not be conditional upon compliance with any formality, i.e. the Berne cardinal principle of “automatic” protection. (No-one knows for sure if it would be a Berne violation because no state has ever been dumb enough to shoot itself in the foot by imposing one). However, it has been argued by those opposed to extending the term of protection that since Berne only requires a protection period of “life plus 50”, a registration requirement for the additional period would not be inconsistent with the Convention. The only close parallel we have suggests that this is not true.

Based on the precedent of what happened when the US finally joined Berne in 1989, it is possible that Canada could technically require Canadian rights-holders to register for the additional period but would still have to extend the benefit of the full “life plus 70” term to rights-holders from other Berne Convention countries without requiring them to register, even as it subjects Canadians to this restrictive measure. This is what happened when the United States joined Berne. For many years, the US maintained a copyright registration system that was incompatible with Berne’s principles, which was one of the reasons it declined to join the Convention. When the US finally decided it needed to join Berne, it was required to abolish its compulsory registration requirement used to establish copyright but nonetheless retained voluntary registration in cases where rights-holders wished to bring infringement cases. However, because of Berne, the US could not apply this additional registration requirement to non-US rights holders. This has resulted in the rather bizarre situation where a US rights-holder has to register copyright in order to bring an infringement action in the US but a non-US rights-holder is exempted from doing so. In this instance, foreigners get “better than national treatment” in the United States. Were Canada to impose registration requirements, it would be disadvantaging Canadian rights-holders compared to non-Canadians.

Dr. Geist ignores all the drawbacks and pitfalls of a renewal registration regime and instead repeats a number of tired and in some cases debunked arguments about term extension imposing a “hidden tax on consumers”. It is no more a tax than an environmental recycling fee is a tax. There are probably some instances where consumers are required to pay more for a book that is protected by copyright than one in the public domain, although the evidence of this is inconclusive. Public domain works are often no cheaper than works still under copyright. Just as there are valid reasons why consumers pay more for products that come in recyclable containers, so too there may be valid reasons why a book under copyright carries a higher retail price than a public domain work. One of these may be royalties paid to the author. Pirated movies and streaming services also offer lower costs to consumers than legitimate services; it doesn’t follow that we should compare prices for pirate services with those in which distributors license content legally. I don’t have the time and space in this blog post to deal with all the misleading claims about the supposed costs of term extension, but I covered many of them in this earlier posting, “Copyright Term Extension in Canada: Facts versus “Fake News”.

So, in the end, what is the government likely to do? Hopefully it will take the sensible option of extending Canada’s copyright term of protection in a simple, straightforward, and transparent way, avoiding the costly and unnecessary creation of a copyright renewal registration process. Given the signals that were sent during a consultation paper on the extension issue in February of 2021, it will provide some means to address the question of “orphan works” and “out of commerce” works that is of concern to the “LAM” (Libraries, Archives and Museums) sector, but will sensibly ignore the copyright minimalists campaign to complicate the copyright system for both rights-holders and users alike by adding a registration requirement. This common sense outcome would indeed make the search for that copyright needle worth the effort.  

© Hugh Stephens 2022. All Rights Reserved.

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