Month: May 2022

The war grinds on. Every day we see distressing, tragic coverage of the brutal destruction wrought by Russian forces as they try to crush Ukraine’s resistance. How and when it will end is not evident at this point. The invasion is about territory, forms of governance, national ambitions, history and culture. Russia under Putin refuses to accept the idea of Ukraine as a nation. To do this, it must deny the existence of a separate Ukrainian nationality and culture. It has been working hard to destroy that culture as I discussed in an earlier blog post, to the point of shelling and destroying museums. How can Ukraine fight back? One way, clearly, is through military resistance. It has already bravely demonstrated that it can stand up to the Russian bear militarily. Another is to assert its nationality and its culture. And that is where copyright comes in.

Discussing protection of copyright may seem like focusing on a “first world problem” at a time when people are lacking the basic necessities of life and being denied basic security. Yet in the long run, Ukraine will surely prevail (within exactly which boundaries at this point we cannot say) and its culture, and the protection of that culture, will be an important element in preserving nationhood, the bond that binds people together. Thus copyright industries—publishing, music, film, art—are key tools in protecting and promoting the Ukrainian presence and spirit.

I will confess that until this dreadful war broke out, I had not spent a great deal of time thinking about Ukraine. My knowledge was scant. Even though I live in a country with 1.4 million people of Ukrainian descent, (the largest community outside Ukraine itself, and Russia), the situation in Ukraine (Orange revolution, Maidan demonstrations) and Ukraine’s heritage was not something that had influenced my life very much. Of course, I knew that many Ukrainians had settled in the prairies provinces as far back as the early 1900s and had made significant contributions to Canadian life. They range from the artist William Kurelek to Governor-General Ray Hnatyshyn to the “Great One”, Wayne Gretsky. But my knowledge of Ukraine as a country and of its culture was superficial (and still is), although I am learning.

I didn’t know much about Volodymyr Zelenskyy until he became the man of the hour, the leader who rose to the occasion to express the will and determination of the Ukrainian people. I had heard a bit about this man, the actor and comedian who played a president, and who then became a president. Watching Kvartal 95 Studio’s “Servant of the People” on Netflix provides some interesting insights into Ukrainian thinking—and humour. The series, shot between 2015 and 2019, conceived, produced and starred in by Zelenskyy, clearly carries a serious message cloaked in humour, satirizing Ukrainian life as it was before February 24, 2022. It is almost painful to watch today because the topics—poking fun at corruption, the Ukrainian military, the Russians and Putin himself—hit so close to home. It is the ultimate reality TV. It is hard to go from Zelenskyy as President Goloborodko in the series to Zelenskyy the embattled leader of Ukraine simply by switching from Netflix to the news. The reality is that the horror unfurling nightly on the news is not a show; its real. And there is nothing funny about it. Yet “Servant of the People” stands as a testament to the power of creative content. It is what propelled Zelenskyy to the real presidency and put him into the spotlight of history.

If audio-visual content is one expression of Ukrainian identity, a more traditional form is the printed book. Needless to say, Ukrainian publishers are facing major challenges from the war, from destruction of printing facilities to shortages of paper. As reported in Publishing Perspectives, the Ukrainian Publishers and Booksellers Association has just released its spring catalogue featuring titles in six categories (art, biography and autobiography, business and economics, comics and graphic novels, cooking and drama). The Association is encouraging foreign publishers to download the catalogue and consider buying rights for translation of Ukrainian works, “one of the few options available to financially support Ukrainian authors and publishers in this extremely tragic situation.” Another means of tangible support is the creation of non-resident fellowships to support Ukrainian scholars, as is being done by Harvard and other universities. The spread of Ukrainian literature also serves the purposes of propagating and strengthening Ukrainian culture, so that Ukrainian realities are expressed by native Ukrainian writers, not through the lens of Russian authors. But of course, nothing is simple. One of the best known contemporary Ukrainian novelists and current president of PEN Ukraine, Andrey Kurkov, writes in Russian! That fact makes him no less Ukrainian, but it is indicative of the complex web of history and ethnicity that prevails in today’s Ukraine.

Kurkov’s role with PEN Ukraine links him to the work of PEN International, the international NGO first established in Britain in the 1920s to promote intellectual co-operation among writers globally and to promote literature as a tool of mutual understanding. PEN has for many years taken on the role of advocating for writers and journalists who have been imprisoned or sanctioned for freely expressing their opinions. Not surprisingly, PEN has taken a particular interest in what is happening in Ukraine, Belarus and Russia in terms of attacks by the Putin regime on freedom of expression in all three countries. Any forms of dissent in Russia have had to go underground. In Ukraine, despite the war, publishing continues. A recent book launch by Vivat Publishing of a Ukrainian translation of an Adam Mansbach book for parents of sleepless children took place in an underground shelter in Kharkhiv, even as the city was under bombardment.

Books are making a contribution to Ukraine’s struggle in another way. A Canadian independent publisher in Calgary is reprinting a Ukrainian children’s book “The Little Book”, a reader originally produced in Ukrainian for the children of Ukrainian families on the prairies in the 1930s. The updated edition, called “The Little Book: Story Reader for a Free Ukraine”, is translated into English by Magda Stroinska, a professor of linguistics and languages at McMaster University in Hamilton, with an introduction by Lorene Shyba (yes, she is of Ukrainian descent), the publisher. The goal is to raise $10,000 for Ukrainian relief. The book, now presumed to be in the public domain (efforts to trace descendants of the author and illustrator Mykola Matwijczuk proved to be unsuccessful), is selling well. The printers donated their services and booksellers are donating the proceeds of sales.

While books are a basic expression of culture, so too is music. But I am not talking about traditional, folkloric music but the contemporary pop scene. Ukrainian pop groups received a shot in the arm after the Maidan “revolution” and Russia’s 2014 invasion of Crimea because until that time the music scene had been dominated by Russian groups. Russian artists who had backed the Crimean annexation were banned, opening up opportunities for young Ukrainian performers. The irony is that it was the heavy-handed Russian response that breathed fresh life into the contemporary Ukrainian music scene; instead of suppressing Ukrainian culture and national expression the end result was a de-emphasis on things Russian, and a displacement of Russian rock groups. For sure, right now most Ukrainian musicians are either holding guns rather than guitars or have gone underground, but Ukrainian pop has come into its own and will remain part of the nation’s cultural heritage. There is no better example of this than the Ukrainian band Kalush Orchestra who won the Eurovision Song Contest earlier this month with their moving song Stefania. Listen, and watch, here.

If culture is the expression of a nation, copyright is one of the essential tools that nourishes cultural expression. Ukraine, as an emerging democracy, has not typically enjoyed a strong tradition of copyright protection. In fact, in past years it has featured regularly on the “Priority Watch List” (PWL) of the US Trade Representative’s (USTR) annual Section 301 report. The PWL designates countries with “serious intellectual property rights deficiencies” in USTR’s judgement. This year, however, USTR gave a nod to the obvious.

In 2020 and again in 2021, Ukraine was put into the PWL category based on three long-standing issues: “(1) the unfair, non-transparent administration of the system for collective management organizations (CMOs) that are responsible for collecting and distributing royalties to right holders; (2) widespread use of unlicensed software by Ukrainian government agencies; and (3) failure to implement an effective means to combat widespread online copyright infringement.” This year’s report noted that over the past year Ukraine had engaged meaningfully with the United States on longstanding areas of concern with its intellectual property regime, although the problems identified in earlier years remained of concern. “However, due to Russia’s premeditated and unprovoked further invasion of Ukraine in February 2022, the Special 301 review of Ukraine has been suspended.”

The steps that Ukraine has taken toward establishing a more transparent and fairer system for collective management of royalties, including new legislation, the progress that is being made toward ensuring that government departments actually use licensed software in addition to being instructed to do so, and tightening enforcement over online copyright infringement are all issues that Ukraine can and no doubt will address in time, once the current crisis has been overcome. When the shape of the new Ukraine becomes clearer, national rebuilding can begin, including promoting and disseminating Ukrainian cultural expression both domestically and internationally. Cultural expression through the copyright industries is a national asset, one that needs to be nurtured and protected. Encouraging and protecting artists and creators is an essential tool of nation-building and national restoration. There is no better way to do that than to respect and protect their rights.

© Hugh Stephens, 2022. All Rights Reserved.

The Walt Disney Company has delighted generations of children and adults with its style of wholesome family entertainment, whether it’s movies, cartoons, games or theme parks. That’s the Disney brand. Disney has generally managed to steer clear of political controversies and stay safely in the middle ground, very much in the mainstream. Like any global corporation, Disney needs to satisfy a range of stakeholders, the most important of whom are its customers, but also including, of course, shareholders, employees and regulatory authorities. Disney has managed to navigate these sometimes-conflicting demands pretty well. After all, it has successfully established theme parks in places as varied, in terms of political environment and regulatory expectations, as Paris, Tokyo, Hong Kong and Shanghai. Not to mention California and Orlando, FL. Actually, Florida might be the most challenging regulatory environment in which it operates.

At the current time, Disney is being targeted by some state and federal Republican officials because they feel Disney is not on-board with current Florida legislation, “The Parental Rights in Education Bill” (aka “Don’t Say Gay” bill). If adopted, it will prevent discussion of sexual orientation or gender identity instruction in Florida classrooms from kindergarten through Grade 3. Disney would no doubt prefer to avoid wading into a controversial issue like this unrelated to its business, but the unhappiness of some Disney employees over its initial low profile led to the company to take a corporate position—against the bill.

It is not my intention to step into the minefield of Florida, or gender identity, politics. Disney is more than capable of defending itself and explaining its corporate positions. Rather I want to highlight the ludicrous position taken by some Disney political critics to try to punish the company by attacking it on the basis of its copyright holdings. Two Republican members of Congress, Rep. Jim Banks of Indiana and Rep. Jim Jordan of Ohio have threatened to block any extension of Disney’s copyright on Mickey Mouse.

That might be a real threat or a punishment if Disney was actually seeking to extend the term of protection of US copyright law, which of course would apply to everyone, not just Disney. But there has been no suggestion that they are. Nor is anyone else trying to achieve this as far as I can tell. Banks has written to Disney’s CEO opposing any extension to Disney’s copyrights–extensions that Disney has not asked for. This must be the straw man of all straw men.

The latest development is that Senator Josh Hawley (R-MO), in a publicity stunt designed to “punish” Disney has introduced legislation, “The Copyright Clause Restoration Act” (S-4178), that would specifically target The Walt Disney Company by rolling back existing copyright protection on its works along with drastically shortening the term of copyright protection for all other rights-holders going forward. Apart from being an unconstitutional expropriation of property, the Bill would put the United States in violation of commitments made in a number of bilateral and multilateral trade agreements, notably the conditions of its accession to the Berne Convention. The retroactive and expropriatory element of the Bill is worded so that it applies to any entertainment company or movie studio with a market capitalization above $150 billion, without specifically naming Disney. Disney, however, is clearly the target as the only primarily content company with copyright assets covered by the designated industry classification categories named in the Bill—unless its market cap suddenly plummets. This is too cute by half. Hawley may as well have said that the legislation applies to any company that owns the IP in an anthropomorphic mouse that whistles. (It appears, however, that NBC Universal may also be captured because of its ownership by Comcast and Amazon’s just-concluded acquisition of MGM could also possibly subject the copyright holdings of this studio to retroactive expropriation–except that it won’t happen). Hawley’s draft legislation is bad law and terrible public policy. It will go nowhere because Congress is not going to change the law to target just one company and retroactively expropriate its assets just because one Senator happens not to like it. Apart from the legal challenges this would entail, the move reeks of political gamesmanship. In short, the whole thing is plain “Goofy”.  

Banks and Jordan, and now Hawley, have dredged up the issue as a stick with which to beat Disney because copyright protection on the first Mickey Mouse cartoon ever produced, Steamboat Willie, which came out in 1928, will expire in the US on January 1, 2024. On that date the first black and white sound cartoon in which a very different looking Mickey from the one today, a Mickey who whistles but does not speak, will fall into the public domain. But Disney will retain copyright over all iterations of Mickey beyond this early cinematographic work and furthermore holds trademark rights over all uses of Mickey on a full range of products and merchandise, in perpetuity as long as the marks are used and renewed. Not only that, this is not just about Mickey; the copyright on a lot of other works will also expire on the same day. This is a regular occurrence, a fact that anti-copyright crusaders try to exploit each year by proclaiming “Public Domain Day”. This is just a publicity stunt to promote an anti-copyright agenda, suggesting that works under copyright protection have been locked away from the public for decades, and are now suddenly liberated. This is nonsense. As I wrote earlier this year when A.A. Milne’s work “Winnie the Pooh” entered the public domain in the US (“Winnie the Pooh, the Public Domain and Winnie’s Canadian Connection”),;

“Those who go to inordinate lengths to “celebrate” a work going into the public domain help feed the false narrative that a work under copyright is one that is “locked up” and unavailable to the public. The Center (for the Study of the Public Domain, at Duke University) notes that works falling into the public domain are “free for all to copy, share, and build upon”. That’s true, but a work under copyright is also available for all these purposes through licensing, and/or fair dealing/fair use exceptions.”

Milne’s work has been in the public domain in Canada since 2007, but I have yet to see an explosion of derivative works simply because Pooh is not in copyright there. In Canada, the term is life of the author plus 50 years although that is about to be extended to “life plus 70” to match the term for the EU, Australia, Japan and many other countries as well as for newer works in the United States. Because of the history of copyright legislation in the US, where there were different (renewable) terms at different times in the past, when Congress updated US copyright law in 1976 it provided a period of protection for older works of 75 years from the date of the publication of the work, rather than tying the term to the lifespan of the author. For works published after January 1, 1978, a term of “life plus 50” was legislated. In 1998, the “life plus 50” term was extended by twenty years to bring the US copyright term into alignment with that of the EU, whose term had become “life plus 70”. At the same time Congress also extended the period of 75 years from publication for older works by 20 years to 95 years.

At that time, Steamboat Willie’s 75 year copyright term was nearing expiration, leading to a campaign by those opposed to term extension to identify the US Copyright Term Extension Act of 1998 (aka the Sonny Bono Copyright Term Extension Act, named after Congressman Bono, who had recently died in a skiing accident), as the “Mickey Mouse Protection Act”. While unfair and misleading, the label was used to mobilize anti-copyright elements to try to paint the legislation as a gift to one company. Although Disney as a major copyright stakeholder actively promoted extension, as did many other companies, associations and groups with copyright interests, the main motivation for the US legislation was to enable US rights-holders to access the additional twenty years of copyright protection offered by the countries of the European Union. As copyright blogger and retired senior music industry executive Neil Turkewitz pointed out in a posting a couple of years ago, the US Supreme Court, in dismissing a challenge (Eldred v Ashcroft) against the term extension law stated;

“By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.”

The EU has a provision known as “the rule of the shorter term” whereby EU member states will not provide the full “life plus 70” term of protection to authors from other countries unless EU rights-holders are given equivalent protection. In other words, the EU applies the principle of reciprocity to the extended term, as is its right under the Berne Convention. To avoid unfavourable discriminatory treatment against US rights-holders in the EU, the United States needed to provide the same level of protection to EU rights-holders as those rights-holders enjoyed in the EU by extending its term, a provision that would of course be applicable to domestic rights-holders as well.

Back in 1993 the EU implemented an extended term of “life plus 70” through its Copyright Directive–applicable to all members–primarily in order to harmonize the term of protection among member states, which were of varying lengths. For example, Germany had a term of “life plus 70” whereas Italy was “life plus 56” resulting in confusion about what works were protected by copyright within the Union. One of a number of stated reasons for extending the term of protection was that originally the “life plus 50” standard incorporated into the Berne Convention of 1886 was intended to protect works for two generations after the demise of the author. With longer life spans in the last decade of the 20^th century, a period of 70 years was now required to provide the equivalent level of protection. This was one justification and there were others, but the prime motivation was to level up the level of protection across all the member states. While internal consistency was the major factor for the EU, the result was that other countries not meeting the EU standard would find their rights-holders at a disadvantage in the EU market.

Once it had extended its term across all member states, the EU adopted reciprocity (or the rule of the shorter term) to encourage other countries to give equivalent protection to EU rights-holders abroad. In the case of the US, it worked. When Congress passed the Term Extension Act in 1998, Disney was a beneficiary along with any other rights-holder whose work had not yet entered the public domain in the US. While some countries have longer terms of protection than the United States or the EU (Mexico for example has a term of copyright protection “life plus 100”—maybe people live longer in Mexico), there is no push in the US or EU for extending the present term of copyright (although there are some who argue that copyright is a property right and like other property rights should last in perpetuity). Today the focus is on encouraging those countries where the term of protection is only “life plus 50” (like Canada and New Zealand) to align their terms of protection with that of most other developed nations. Both countries have committed to doing so as a result of trade agreement commitments, a move that will have the additional benefit of securing longer protection for their rights-holders in the EU, just as American rights-holders benefited once Congress adopted the Copyright Term Extension Act in 1998.

Given the background to US copyright extension twenty-five years ago, and the current state of US copyright law, it is frankly laughable to suggest that a movement to further extend the term of copyright protection in the United States will suddenly emerge, driven by the Walt Disney Company or anyone else. If there is no such movement, there is no need to publicly oppose it. And it is equally ridiculous to try to take US copyright law back in time to the provisions of the Copyright Act of 1909, as Hawley’s bill would do. This is all about political grandstanding, but that grandstanding would have a lot more credibility if it was based on facts—and sound legal principles– rather than a myth.

© Hugh Stephens 2022. All Rights Reserved.  

On April 28, with little advance notice, an announcement was released by various governments informing the world that they had just signed a “Declaration for the Future of the Internet”. In all, sixty-one countries signed this grandiose-sounding document, ranging from Albania to Uruguay. Signatories notably included the US, which was the sponsor of the Declaration, the 27 countries of the EU, the UK, Japan, Canada, Australia, New Zealand, and four of the five Nordic countries. These constitute what one might loosely consider the “western alliance”, but signatories also included several countries in Latin America, a couple of African states, Ukraine, Georgia, Moldova, Serbia, Israel and even Micronesia, Palau and the Marshall Islands. Notably absent were not only Russia and China, against whom the Declaration appears to be aimed, and a number of states where control of the internet is part of the control mechanisms exercised by those regimes (think Iran, Saudi Arabia, Syria, the Gulf States—in fact no government in the Middle East save Israel signed on), but also some states one would have thought might have joined, such as Norway, India, South Korea, Switzerland or any of the ASEAN states. Indeed, except for Japan and Taiwan, there were no signatories from Asia.

The Declaration has been percolating below the surface in Washington for a few months and was almost rushed into existence last December in the form of an “Alliance for the Future of the Internet”, associated with President Biden’s virtual “Summit for Democracy” held December 9-10. At the time there was strong pushback from various quarters, not the least because of a lack of public consultation with stakeholders plus a concern that it would lead to a splitting of the internet by creating at least two camps, those in the “Alliance” and those not. For example, one stipulation in earlier drafts was that signatories should only use equipment from “trustworthy suppliers”. (meaning, in effect, not from Huawei). In the end, the Alliance was not unveiled at the Summit as it was clearly not ready for prime time. Now, reworked, it has emerged as a non-binding declaration.

So what does it do, what does it not do, and what impact will it have on creators and the content industries who are, after all, major stakeholders when it comes to the internet and digital trade? First of all, while it sets out a number of broad principles considered to be desirable for the governance of the internet, it creates no obligations and has no implementation or enforcement mechanism. The principles are hard to argue with; indeed, they are generally laudable, although “freedom” always has to be balanced with responsibility, of which there is little mention. On its website, the US Department of State indicates that the key principles include commitments to;

• “Protect human rights and fundamental freedoms of all people;
• Promote a global Internet that advances the free flow of information;
• Advance inclusive and affordable connectivity so that all people can benefit from the digital economy;
• Promote trust in the global digital ecosystem, including through protection of privacy; and
• Protect and strengthen the multi-stakeholder approach to governance that keeps the Internet running for the benefit of all.”

The EU’s interpretation of the Declaration adds “contestability of online platforms, and…fair competition among businesses.” By “contestability” (a strange word drawn from the Declaration itself) I assume the press release is referring to competition between online platforms. (An astute reader has clarified the term contestability for me–see below). Canada proclaimed that the Declaration expresses its objectives for an internet that is “open, trusted, interoperable and secure” that “fosters democratic values and respect for human rights.” The phrase “open, free, global, interoperable, reliable, and secure” is a kind of buzzword that appears repeatedly throughout the document. I am sure that other signatories also issued their own statements interpreting the significance of the Declaration. In fact, it is so broad that just about everyone can find something in it to support, except perhaps the countries against whom it is primarily aimed, notably Russia and China. This statement, for example, is surely aimed at Russian political interference in the last US presidential election.

Signatories agree to;

“Refrain from using the Internet to undermine the electoral infrastructure, elections and political processes, including through covert information manipulation campaigns.”

Likewise, against whom other than China could this commitment be directed?

Signatories agree to;

“Refrain from misusing or abusing the Internet or algorithmic tools or techniques for unlawful surveillance, oppression, and repression that do not align with international human rights principles, including developing social score cards or other mechanisms of domestic social control or pre-crime detention and arrest.”

The Declaration even enlists the internet in the fight against global climate change.

That is what it does. What it does not do is directly address the important issue of platform accountability although there is a tangential reference to the fact that “the once decentralized Internet economy has become highly concentrated and many people have legitimate concerns about their privacy and the quantity and security of personal data collected and stored online. Online platforms have enabled an increase in the spread of illegal or harmful content that can threaten the safety of individuals and contribute to radicalization and violence.” “Freedom of expression” and the “free flow of information” are not absolutes even in the most democratic of societies. Reasonable limits to curb defamation, online bullying, hate speech, incitement of violence and other abuses, including disinformation and misinformation are also part of the democratic social contract, but the Declaration just skips over these nuances in laying out its principles. I realize it can be a fine line between legal constraints in a democratic society and the abuse of these constraints by autocratic regimes, but it is not impossible to find language that conveys these distinctions.

Fortunately, what the Declaration also does not do is include any reference to Section 230-like language, such as was included in the US-Japan Digital Trade Agreement or the new NAFTA (USMCA). These agreements tried to immunize platforms from civil liability for content hosted (and sometimes promoted by them) on their platforms by including terminology that required an interactive computer service (i.e. digital platform) to not be treated as an information content provider in determining liability for harms. In other words, platforms could duck any responsibility for third-party content they carry and promote. (Both Canada and Japan did an end-run around this provision by inserting a caveat that allowed them to implement this commitment through existing legal doctrines applied through judicial decisions, thus preserving secondary liability.)

While the lack of any reference to platform immunity is a positive, unfortunately the Declaration also fails to pro-actively affirm the rights of creators in the digital realm, and contains some language that could be considered problematic from the perspective of copyright-holders. The internet has proven to be both a boon as well as a major challenge to copyright industries and creators. While there is lip service to creators in the document, with the Declaration noting that the internet brings new audiences to artists and creators, it then goes on to talk about “unfettered” access to knowledge for “everyone”. I am not sure of the intent of this wording, but it could be misused by anti-copyright elements to oppose legitimate licensing requirements for access to copyrighted content.

Another concern arises in the section of the Declaration dealing with “A Global Internet”, where there is a reference to net neutrality that needs to be carefully interpreted.

Signatories should;

“Refrain from blocking or degrading access to lawful content, services, and applications on the Internet, consistent with principles of Net Neutrality subject to applicable law, including international human rights law.”

Again, there is a risk that this language could be misused by opponents of site blocking or other measures taken to combat digital piracy and unauthorized transmissions. Net neutrality has been trotted out in the past by anti-copyright elements as a reason to oppose site blocking. However, I take some comfort in inclusion of the adjective “lawful” in the commitment. Site blocking as a means to fight online piracy has been instituted in a number of countries that are signatory to the Declaration. This is done either through a judicial or quasi-judicial process or a transparent administrative mechanism, and has no impact on transmission of lawful content, nor does it interfere with net neutrality.

Finally, there is one other reference in the Declaration that may provide some comfort to digital content producers. It references malware and scams, often distributed through pirated content.

Signatories will:

“Promote the protection of consumers, in particular vulnerable consumers, from online scams and other unfair practices online and from dangerous and unsafe products sold online”

Many of these scam artists access consumers, including vulnerable consumers, through Trojan Horses inserted into pirated content, as I wrote about a few years ago. (“The Year of the RAT-Beware”). Legitimate content is the antidote.

At the end of the day, there are some scraps in this document for creators, but not many. It is clear that there was little consultation with a group that is among the prime users of the internet and is a prime stakeholder in its governance. As a statement of general principles, the Declaration is unlikely to do much harm, or frankly, much good. No-one can argue with basic human rights, freedom of expression—within reasonable limits, protection of privacy, and equality of access to the internet. How these lofty goals will be achieved in practice is another question.

It would have been preferable to have had a more inclusive document that better reflected the interests of stakeholders, including the content industries, but the intent seemed to be to get a statement of principles “out there” as quickly as possible. With no concrete action plan or any firm commitments attached to it, it may simply be a bit of window-dressing that is easy for countries to commit to, an internet “vision statement” as it were. It is too bad that vision did not include more specific references to the interests of the creators and content industries that produce the digital content that makes the internet the “go to” forum for most of the world’s connected population.

© Hugh Stephens, 2022. All Rights Reserved.

This blog has been updated to clarify the meaning of the term “contestability” in the 4th paragraph. With thanks to Simon Carne.

Call it a victory for common sense. The Canadian Budget Implementation Bill, which includes needed amendments to the Copyright Act to implement Canada’s CUSMA treaty commitment to extend its term of copyright protection to bring it into alignment with its major trading partners, has now been tabled. The legislation takes the sensible and straightforward approach of amending the duration of copyright protection in Canada from life of the author plus 50 years (“life plus 50”) to “life plus 70” without the interposition of new and burdensome registration requirements called for by copyright opponents. The new term will apply to all works under copyright at the time of proclamation of the legislation which, according to the terms of the CUSMA, must take place before the end of 2022.

In the lead up to the tabling of the bill, we have been inundated with tendentious and misleading information from many of the usual suspects about the supposed harm of extending Canada’s duration of copyright protection. The anti-copyright hyberbole machine has been in overdrive. As much as I am tempted to ignore this flood of verbiage since the sensible decision has now been taken by the government—and lest I give the attacks on copyright greater credibility that they deserve– I cannot resist the opportunity to present an alternate view.

Recall that in the CUSMA (aka the USMCA), the new NAFTA 2.0 agreement that went into effect on July 1, 2020 Canada agreed, as part of the overall CUSMA package, to extend its term of copyright protection to “life plus 70”, the same term that is in effect in the United States, the EU, the UK, Japan, Australia—more than 80 countries around the world. It is a revision to the “life plus 50” minimum established by the major international copyright treaty, the Berne Convention, to which both Canada and the US belong. Canada agreed to take this action no later than 2.5 years from the entry into force of CUSMA, which was July 1, 2020. There is thus a degree of urgency to get this piece of legislative homework completed before the end of the year, which no doubt explains why the necessary Copyright Act amendments have been appended to the 2022 omnibus budget bill. The budget must pass or the government will fall, and with the “confidence and supply” agreement signed between the NDP and the Liberals, it is virtually guaranteed that the budget implementation bill will be approved by Parliament. The Copyright Act amendments will go along for the ride.

So, if copyright term extension is going to happen, why all the fuss? University of Ottawa law professor Michael Geist has been leading a campaign to try to convince the government to insert a major road-bump in the way of copyright extension implementation. He has advocated for the imposition of a copyright renewal registration requirement once the initial term of “life plus 50” expires, a move that no other country has ever undertaken. And for good reason. To require rights-holders to register their copyright in order to access the full term of protection to which they are entitled would mean establishing a bureaucratic process for registration and maintaining a registry of copyright renewal, putting the onus on users to try to determine if a work had been renewed (and was still protected by copyright) or not. It would also put a burden on rights-holders to renew within the short window when the Berne Convention minimum term of “life plus 50” approaches expiration. It is a “really bad idea” as I wrote a couple of weeks ago. No doubt major corporations would have the resources to do this, but many individual rights-holders (such as the estates of deceased authors) would likely fail to take the requisite action in the required time-window.

Apart from the regulatory burden, it is very likely that imposition of a registration requirement would be a violation of Canada’s commitments under the Berne Convention. It is a cardinal principle of Berne, dating back to the original iteration of the Convention in 1886, that copyright be conferred without any formalities of registration provided that a work meets other requirements establishing copyright. To try to convince the government to take a counter-intuitive action by instituting a copyright renewal registration requirement that would not only contravene Berne, but which would result in making it as difficult as possible for rights-holders to access the benefits of a provision agreed to in a bilateral trade treaty, Prof. Geist has trotted out arguments old and new against term extension.  

In one recent blog, we are given lists of public figures whose works will remain under copyright protection for an additional twenty years when the extension goes through. “Historians will lose public domain access to the works and papers some of Canada’s most notable leaders and figures of modern times, including leading Prime Ministers, Premiers, First Nations leaders, and Supreme Court justices,” he says. He rightly notes that these people (the list includes Joey Smallwood, John Diefenbaker, Tommy Douglas and a number of others), helped shape a nation. All true. But then he adds, “To withhold their works from the public domain for decades represents an enormous collective loss to our culture and heritage.”

What? Haven’t their papers been available to researchers for years? Haven’t multiple books and studies been written about these personalities? I did a quick internet search on just Smallwood and Diefenbaker and came up with more than a dozen works on each, including autobiographies. Has the fact that their writings have been subject to copyright protection prevented research and publication of subsequent works about their careers? It doesn’t seem so. The entire argument is based on the false premise that a work not in the public domain is a work not accessible to researchers, the public, libraries or anyone else. In fact, the existence of copyright provides the incentive to produce the works in the first place, and in many instances to incentivize reprints. Geist propounds the same fallacious argument with respect to Canadian authors. He provides a list of “Canadian authors and scholars whose work will be lost for a generation”. This list includes Margaret Lawrence, Marshall McLuhan, Northrop Frye, Gabrielle Roy and so on. How will their works “be lost”? I am scratching my head.

The only parties to whom these works will be “lost” will be the republishers, publication houses that specialize in printing public domain works. One such entity is Broadview Press, quoted by Dr. Geist in one of his blogs, and a consistent opponent of extending the term of copyright protection in Canada. Why? Because Broadview has made a business of reprinting books that are still under copyright protection in other countries, such as its Canadian edition of the Great Gatsby, and selling them in Canada in competition with “authorized” editions. There is nothing wrong with that but let’s be clear as to motivations. I wrote about Broadview’s opposition to copyright term extension back in 2020. “Copyright Term Extension in Canada and the Interesting Case of Broadview Press: Is it “Playing the Victim” or Just “Playing the Game”? Because Canada has a shorter term of protection, F. Scott Fitzgerald’s work fell into the public domain in Canada before it did in the US. Broadview either did not want to pay for the rights to reproduce the work, or perhaps was not able to licence the work from the Fitzgerald estate, and so it produced its own Canadian edition in 2007. (This edition was copyrighted, by the way, in the name of its editor, Michael Nowlin). This edition could not be sold in the United States until Fitzgerald’s works entered the public domain in that country on January 1, 2021.

I will concede that an extended term of copyright protection does not favour the business model of publishing houses that specialize in printing well known works once they enter the public domain, but I would argue that this does no harm to the public interest. Public domain works are in many cases no cheaper than comparable works still under copyright protection. While publishers of public domain works don’t have to acquire the rights to reprint a work, that doesn’t mean that they don’t have costs to cover. What is not paid to license a work can be added to their margin, as long as the book price remains reasonably competitive. The return provided to a rights-holder by copyright protection is just as likely to incentivize the printing of new editions as the free ride for some publishers from a book entering the public domain.

Numerous studies have been conducted on the impact of copyright term extension on public welfare. At best, the results are inconclusive. Dr. Geist has repeatedly quoted a report published in New Zealand in 2009 that purported to show that if New Zealand extended its term of protection by an additional twenty years, it would cost the New Zealand economy NZ$55million annually in lost economic welfare as royalties were sent out of the country as payments to foreign rights-holders. However, that report was based on erroneous calculations and has been convincingly debunked. It should be buried once and for all. The economist who reviewed the faulty study done for the New Zealand Ministry of Foreign Affairs and Trade (the study is no longer available on the MFAT website) concluded that rather than a net welfare loss, the New Zealand economy could gain by as much as NZ$150 million per year if its term was extended. Extending copyright in Canada will bring extra protection, and revenue, for Canadian rights-holders from sales of their works abroad.

Moreover, models that focus exclusively on consumer costs ignore the economic benefits to creators and the overall beneficial impact on the economy. For example, a study Michael Geist likes to quote is a 2013 paper produced by Professor Paul Heald, an economist at the University of Illinois. Geist says that Heald concludes that copyright term extension is a “tax on consumers”. I actually read Heald’s paper and could not find that reference. However, Heald does talk about the retail price of books and concludes that in some instances (i.e. “the top twenty most popular public domain and copyrighted books from 1912-32 under several different measures”), books in the public domain are cheaper than books covered by copyright. But he also says, and I quote, “Buccafusco and Heald (2013) also found that the overall price of thousands of copyrighted and public domain books in a random sample of new Amazon books were the same… In summary, much empirical work remains to be done to test various claims about the costs and benefits of a work falling into the public domain.”

I may be cherry-picking (and I am not the only one!) but this is hardly conclusive evidence that term extension is a tax on consumers. Even if some books that are copyright protected have a higher retail price, this does not mean that this is an unfair “tax” on consumers. The added cost presumably represents the royalty paid to the author. The lowest price is not necessarily the optimal price from the perspective of the economy. I have used the example of recycling fees to make this point. A product in a container attracting no recycling fee would be cheaper for the consumer than a product in a recyclable container. But is the lowest price the optimal price? The recycling fee is not a tax and has a defined purpose. The same principle applies to the royalties or licence fees paid to authors and rights-holders for copyrighted works.

So where does all this leave us? He said, she said? Maybe. But what it proves to me is that there is an academic debate about the impact of the public domain on costs and availability of works. Different studies have produced different results. However, to suggest that works not falling immediately into the public domain will be “lost for a generation” is, as the British would say, “bollocks”. The “sky is falling” hyperbole about taxing consumers and locking away works just doesn’t stand up to the light of day. This misinformation was trundled out to try to convince the Canadian government to impose an irrational and unworkable registration requirement when implementing its copyright extension commitment. It didn’t work. In a final frenzied blog post published after the contents of the Copyright Act amendments were made public, Dr. Geist says “Make no mistake: the decision to implement copyright term extension without mitigation measures is the government’s choice.” He is right. Canada is fortunate that the Government of Canada made the commonsense choice of bringing its term of copyright protection into line with that of its major trading partners by simply extending the term, as everyone else to date has done.

© Hugh Stephens 2022. All Rights Reserved.