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Submission to the consultation paper on how to implement an extended general term of copyright protection in Canada from the Canadian Independent Music Association
The Canadian Independent Music Association (CIMA) is the national, not-for-profit trade association representing the English language, Canadian-owned and controlled companies of the domestic music industry, including independent record labels, managers, publishers, distributors, artist-entrepreneurs, recording studios and the like - all small businesses.
The recommendations made in this document echo CIMA's remarks made during the last Parliament, to the Standing Committees on Heritage and Industry, as they undertook their reviews on copyright. These recommendations reflect the broad consensus within the Canadian music industry on what crucial steps need to be taken in order improve the livelihood of our music creators.
Creators must be defined as everyone in the music ecosystem of creating, recording, performing and commercializing music. They are the artists, songwriters, composers AND the companies that support them - such as labels, managers and publishers.
We urge the Government of Canada to view these consultations through this lens to ensure that all who create and commercialize intellectual property are properly supported and protected by Canadian law.
Canada's current copyright law is consistent with the minimum protection set out over a century ago in The Berne Convention for the Protection of Literary and Artistic WorksFootnote 1. Around the time that Canada joined the Berne Convention in 1928, the average life expectancy was about 60 years. It rose to about 81 years between 2007 and 2009, with many more people now living past 100.
With longer life expectancies, a term of life plus 50 years does not reflect the underlying intention of that treaty. In addition, since the term of copyright on sound recordings is not the life of the author plus term, rather the term begins with the first fixation of the recording, it means the term of copyright is now expiring during the creators' lifetime, which is depriving artists and musicians of royalty income and equitable remuneration at a stage in life when they most need it.
The majority of Canada's major trading partners protect copyright for longer than the life of the author plus 50 years, including the vast majority of the members of the Organisation for Economic Co-operation and Development (OECD).Footnote 2
Most nations have embraced an international standard of the life of the author plus 70 years, with a few exceptions that recognize either slightly shorter or even longer terms.Footnote 3 In particular, Canada's top two trading partners, the United States of America and the entire European Union, both offer copyright terms of life plus 70 years. Royalties distributed by SOCAN to Canadian songwriters and publishers from foreign territories with life plus 70-year copyright terms exceeded $61 million in 2015 and $65 million in 2016.Footnote 4
CIMA therefore applauds Canada's commitment to extending the general term of copyright as required by article 20.62 of the Canada-United States-Mexico Agreement (CUSMA). This extension will increase the amount of music royalties that flow into the Canadian economy, which consequently be reinvested into Canada's cultural industries.
Orphan works and out-of-commerce works
Although the issues of orphan works and out-of-commerce works are significant, they also complex and likely to affect each sector of the cultural industries differently. The Consultation paper on how to implement an extended general term of copyright protection in Canada (the "Consultation paper") identifies various measures to deal with these issues as implemented in several jurisdictions and suggests some possible options for Canada to adopt. CIMA respectfully submits that these issues warrant further study in a separate consultation with each sector of the cultural industries, so as not to further delay the adoption of the copyright term extension required by CUSMA.
CIMA recommends that Canada amend the Copyright Act to extend the term of copyright as required by article 20.62 of CUSMA and in recognition of international copyright norms without delay, and independently of the other considerations contemplated in the Consultation paper.
Impact of the recommendation:
Term extension will immediately benefit Canada in international trade.
Canada's shorter copyright term disproportionately impacts Canadian artists and companies seeking to export their works as a result of the "rule of the shorter term" prescribed by article 7(7) of the Berne Convention. Under article 7(7), the term of copyright for a literary or artistic work "shall not exceed the term fixed in the country of origin of the work."
As a result of Canada's term being shorter than that of its major international trading partners, artistic works by Canadian creators may only be protected by copyright for the life of the author plus 50 years in countries that have ratified the Berne ConventionFootnote 5; conversely, the domestic works of creators from those other countries, as well as works by authors from other trading partners with longer terms of copyright, are protected by copyright for longer periods than Canadian works available in those territories.
The inconsistency in copyright protection between Canada and its major trading partners is counterproductive to international rights administration and trade. These differing copyright regimes give rise to uncertainty, inefficiencies, and additional costs for rights holders because it forces them to investigate the scope and applicability of their rights in each country where their works are exploited. This creates unnecessary barriers to rights administration that multiply for each territory beyond an author's country of origin, hindering the achievement of optimal efficiency in rights management and enforcement.
As observed by the EU, differences in nations' legal regimes "are liable to impede the free movement of goods and freedom to provide services, and to distort competition in the common market."Footnote 6 Legal harmonization is a key element in the creation of a productive international trade environment. This is particularly true for intellectual property rights in the digital age since copyright protected works are so easily distributed across borders via the Internet.
Harmonization has also become a key aspect of contemporary trade agreements, such as the Australia- United States Free Trade Agreement, which included provisions extending copyright protection in Australia to the life of the author plus 70 years to match U.S. law.Footnote 7
Extending the term of copyright will therefore immediately benefit Canadian artists and companies, and the Canadian economy, by increasing the amount of music royalties that can be collected by Canadians from sources around the world.