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March 31, 2021

Innovation, Science and Economic Development Canada
Strategic Policy Sector
Marketplace Framework Policy

Re: Consultation on how to implement Canada's CUSMA commitment to extend the general term of copyright protection

Google is pleased to submit these comments in response to the Government's consultation regarding the extension of copyright term required in the Canada-United States Mexico Agreement (CUSMA). Instead of Canada's current term of life of the author plus 50 years post-mortem, the required term is life plus 70 years. The CUSMA does not go beyond stating the requirement, affording Canada flexibility in how to implement it. Google Canada has two implementation recommendations: (1) the new term should be applied only to works that are created on or after the date of enactment of enabling legislation; and, (2) the new term should not be applied retroactively to pull out of the public domain works whose term of protection elapsed before the date of enactment. This second recommendation is expressly contemplated by CUSMA Article 20.10(2):

Unless provided in Article 20.63 (Application of Article 18 of the Berne Convention and Article 14.6 of the TRIPS Agreement), a Party shall not be required to restore protection to subject matter that on the date of entry into force of this Agreement has fallen into the public domain in its territory.Footnote 1

To be clear, CUSMA does not require that the additional 20 years be retroactively applied to works created under a life plus 50 year term. Typically, retroactive applications in agreements are spelled out, not assumed. Thus, limiting the additional 20 years to works created on or after the date of enactment is both consistent with the text of the CUSMA, as well as representing sound policy.

Both of our recommendations address important problems caused by the new term of protection. Extension of copyright term in Canada poses a serious risk that Canadians will be providing extended financial support for works owned predominantly by US corporate copyright owners. While the U.S. already has a term of life of the author plus 70 years (and thus does not have to change its laws), for works created before January 1, 1978, the U.S. term is measured from the date of first publication. If the copyright owner failed to affix a copyright notice that term was zero; if the copyright owner failed to timely renew (and most did not), the term of protection was only 28 years. Because NAFTA prohibited Canada from utilizing the Berne Convention's rule of the shorter term, Canada has had to give pre-1978 U.S. public domain works the Canadian term of life of the author plus 50 years. As a result of the CUSMA, if implemented without our recommendation, Canada will now have to give these U.S. public domain works a term of life of the author plus 70 years. Canadians will be paying royalties to use works where U.S. citizens do not, for an additional 20 years. Google's recommendations will prevent this.

Even leaving aside the outflow of money, it is also unlikely Canadians will benefit from any increase in Canadian authored works. The average lifespan in Canada is 82 years, so works created when an author was 30 years old -- whose copyright would have lasted 102 years -- will now last 122 years. We find it extraordinarily unlikely that any author would claim that the difference between receiving 102 years versus 122 years of copyright protection would have any impact on that author's incentive to create the work in the first instance.

To the contrary, creators, more than anyone, know that the commercial life of works of authorship is preciously short, only a few years for the vast majority of works. It is a miracle for any work to be commercially viable at the author's death. Even during the author's life, rights in commercially valuable works typically are assigned away to publishers or other distributors, so that any extension of term usually benefits distributors, not creators.

Even when a deceased author's copyright descends to family heirs, at a term of copyright of 50 years after the author's death, and with 25 years as the length of a generation, several generations after the original author will still enjoy the benefit of copyright protection. For instance, if an author created a work at 30 -- the average age for a first childbirth in Canada -- and died at the average age of 82, with a copyright term of life of the author plus 50 years, and if the average of 25 years for a generation, we are into the fifth generation after creation of the work. Adding on another 20 years only compounds the capacity of heirs of authors to leverage extended copyright to prevent Canadians from accessing valuable cultural (and by that time historical) works. We have seen numerous examples of distantly removed heirs leveraging old copyright to prevent commentators from quoting extensively from well established works, or preventing historical pictures, news-clipping and other primary sources from being used without payment.

Note that the alleged claim of rights extends not just to public domain photographs and public newspaper articles (owned originally by the newspapers), but to uncopyrightable information as well. One can of course challenge such baseless assertions, but publishers will not tolerate litigation, and will require all challenged uses to be excised by authors. This results in censorship of history and culture.

Even leaving public domain works in the public domain, the new term of protection would still cover an American author who died in 1972 and whose works are in the public domain in the U.S. Thus, unless our second suggestion is adopted -- that the extended 20 years of copyright only be granted to works created on or after the date of enactment of the new legislation -- hundreds of thousands of popular U.S. works created between 1972 and the date of enactment in 2021/2022 will be receive the extra 20 years and therefore will need to be licensed with royalties paid, by Canadians, to copyright owners over the Southern Border.

It is well established that, in Canada, the "purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator," and that "proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature." The additional 20 years of copyright will not lead to the creation of new Canadian works that would not otherwise have been created, and that royalties for the extra 20 years will disproportionality go to U.S. copyright owners, which in our considered view is not to the benefit of the Canadian cultural ecosystem. In our view, it is imperative that the Government implement any copyright term extension in a manner that respects that balance.

We believe that our recommendations can ameliorate the harm that an overly aggressive implementation would cause, while being consistent with Canada's new obligations. Both recommendations are permitted under the CUSMA: (1) extend the additional 20 years post-mortem only to works created on or after the date of enactment of the enabling legislation, and (2) do not pull works that went into the public domain before that date out of the public domain. These two recommendations are simple to draft, compliant with the CUSMA, and will greatly benefit Canadian authors and citizens.

Respectfully submitted
Jason J. Kee
Government Affairs and Public Policy Counsel Google