Mark Akrigg

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How to implement an extended general term of copyright protection in Canada

Submitted on 31 March 2021 by:
Dr Mark Akrigg
Founder, Project Gutenberg Canada

It is a pleasure to accept the government's invitation to comment on the implementation of extended copyrights in Canada.

My name is Mark Akrigg, I live in Toronto, and I am the founder of Project Gutenberg Canada, a website offering free digital editions of books in the Canadian public domain.

The opinions in this submission are my own: I am making this submission as an individual.

My basic recommendation: Require registration

CUSMA has been ratified and the question is, what should the government of Canada now do about the controversial copyright extensions, which had been rejected time and time again by Canada's governments over the past twenty years.

Fortunately, the answer to this question has already been provided by the unanimous 2019 final recommendation of the all-party Commons copyright committee.

"The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system." (Preamble to Recommendation 6)

Requiring registration for copyright extensions is absolutely in compliance with the Berne Convention

Before CUSMA, Canada was already in full compliance with the Berne Convention: the CUSMA extensions are therefore entirely outside its framework. When Article 5 (2) of the Convention says "the exercise of these rights shall not be subject to any formality", it means the rights provided by the Berne Convention. It does not mean rights provided outside the agreement.

Therefore Canada is entirely within its rights to require registration for copyright extensions, and indeed has a strong moral obligation to Canadians to include this requirement so as to lessen CUSMA's damage to the Canadian public domain.

From my viewpoint as a digital publisher of works in the public domain, there is no reasonable alternative, since registration will give me certainty: if a work has not been registered, it is not under copyright, and there will be no need of deep research for which, in all honesty, I don't have the resources. It is critically important that the public domain be open to all members of the public, not just institutions and corporations.

I strongly believe that the government should implement this requirement since (1) it will leave the highest number of works in the public domain, and (2) it was unanimously recommended by the all-party Commons copyright committee, giving it unrivalled legitimacy.

The unanimous 2019 report of the commons copyright committee, and its rejection

It will be obvious why the copyright extensions are of concern to me, since Project Gutenberg Canada depends entirely on the existence of the public domain, and an attack on Canada's public domain is an attack on Project Gutenberg Canada and its users. Since the founding of Project Gutenberg Canada in 2007, I have continuously been fighting the threat of foreign copyright extensions being brought to Canada, and in 2018 I made a submission to the Commons copyright committee, which received a friendly reception, for it was directly cited in their final report. The committee has kindly made my submission available online:

I bring this submission to your attention because it is short, specific, and makes very clear the reasons I and others consider CUSMA's copyright provisions "outrageous and unacceptable": in fact, an act of cultural vandalism. The few minutes spent reading this will be time well spent.

The current outright rejection of copyright registration

For me, the rejection came as a shock. The present consultation is not an "open" one, because it specifically excludes or discourages certain approaches, while offering a bewildering display of options to discuss, thereby discouraging public participation. This is a questionable and indeed illegitimate response to a unanimous recommendation from the Commons copyright committee, supported by all parties, including the government and all the opposition parties.

Not incidentally, where did these options come from? Have lobbyists been approaching the government attempting to overturn what should be settled policy? They certainly read that way, with the many burdens and risks they place on those seeking to use the public domain. This would be shocking and literally unacceptable.

I am particularly appalled by the statement that "While limitations on enforcement of copyright linked to registration are not unprecedented they do not appear to be the norm internationally." Well, it isn't the international norm for countries to coercively change the copyright laws of other nations.

"In addition," continues the document, "with new pressure on copyright owners to register their works, such an approach would likely result in increased costs in the form of registration fees and associated administrative and legal costs, particularly for owners of copyright in multiple works."

The "new pressure" is imaginary. There would be no need for anyone to register anything: there is always the choice of allowing the copyright to lapse. And most copyrights have negligible financial worth after their first twenty years. As for the costs, they would be trivial compared to the normal day to day costs of running a business, and should be considered part of general overhead. There's nothing shocking about charging for registration: after all, businesses pay for licences of one kind or another all the time. And a copyright renewal would be a one-time charge for twenty extra years.

It's worth recalling at this point that when a copyright expires, the original publisher can certainly continue to make the work available. The only difference is that others can as well, reducing the likelihood of artificially high monopolistic pricing on the part of the original publisher.

About Project Gutenberg Canada

I discovered the world of free online public domain books about twenty years ago, when I visited the original Project Gutenberg US, founded in 1971, which now numbers nearly 65,000 titles in its catalogue. The selection was huge, and the books very easy to read on a computer, cellphone, or tablet. I found much to read.

However, I noticed that virtually none of the books were from later than 1923. This, I discovered, was because two successive copyright extensions had exercised their deadly effect. The more shocking of these two extensions, the 1999 Copyright Term Extension Act ("the Mickey Mouse Protection Act"), was passed in an unannounced secret session of the US Congress, and with no recorded vote, just before the copyright freeze was about to end. It added 20 years to American copyrights, and is the direct ancestor of the CUSMA copyright extensions.

The US copyright extensions meant that many books in the Canadian public domain could not be made available through the superbly easy to use Project Gutenberg site in the US. So I set up Project Gutenberg Canada to make some of these ebooks available to Canadians. It is no accident that most titles in our catalogue were first published in or after 1923.

The site was an immediate and lasting success. I am particularly proud of some testimonials I have received from Canadians who live in remote locations thanking me for what Project Gutenberg Canada has done for them. Naturally our services have become that much more important during the COVID-19 lockdowns, when most libraries have been closed. We do not charge for our ebooks, and never will.

Canadian literature at Project Gutenberg Canada

At Project Gutenberg Canada, we publish books from all countries. But of course, we pay special attention to our own. Here are some authors we could not have offered had the twenty-year extensions already been in effect:

L. M. Montgomery (1874-1942)

Everyone knows Anne of Green Gables (1908), but what about Anne of Windy Poplars (1936)? L. M. Montgomery was a prolific author, and her many books are well worth reading. It was a pleasure to make them available right from the beginning of Project Gutenberg Canada in 2007.

Mazo de la Roche (1879-1961)

Author of the famous Jalna novels, bestsellers worldwide.

Peregrine Acland (1890-1963)

Author of one of Canada's greatest novels about the First World War, All Else is Folly, a critical and commercial success when it came out in 1929, but out of print for decade after decade until it entered the public domain in 2014.

Thomas B. Costain (1885-1965)

Born in Brantford, for many years the editor of Maclean's, and the author, starting in 1942, of a massive series of historical novels set in Europe and Canada, once pervasive in Canada's bookstores and on bookracks in Canada's drugstores and grocery stores. It is a special pleasure to make him widely available once more.

Gwethalyn Graham (1913-1965)

Author of not one but two winners of the Governor General's Literary Award: Swiss Sonata (1938), set in a Swiss girls' school as the Second World War approaches, and Earth and High Heaven (1944), the story of a marriage, set in Montreal.

Avoiding "top 10" authors: rediscovering our past

Visitors to Project Gutenberg Canada will find that the site is full of authors that they have never heard of. Part of this is due to the mere passage of time: each year brings new authors, and ones no longer current recede into the past. The main reason to avoid excessive copyright durations is to rescue works from undeserved oblivion brought on by this process. "Term extension leads to work extinction", as the University of Ottawa's David Fewer has rightly commented.

Ian Fleming (1908-1964) vs. Adelaide Manning (1891-1959) and Cyril Coles (1899-1965)

But setting this aside, we make a point of not focusing on the most famous names. To take one of many examples, we do include works by Ian Fleming, and you will find Goldfinger in our collection: it is fine entertainment. But we also include Manning Coles, actually a partnership of Adelaide Manning (1891-1959) and Cyril Coles (1899-1965). Manning had worked in the War Office during the First World War, and Coles joined up as a teenager, to become the youngest officer in British Intelligence, where he served for decades.

Between the two of them, they had a wonderful knowledge of military history and espionage.  And this shows in their novels! No Entry (1954) is about the son of a British Foreign Secretary, who while visiting Goslar, on the border with East Germany, has accidentally strayed across the border -- and has to be smuggled back! A fine novel of suspense, and a fine history lesson, written by experts. And I can think of no better introduction to the realities of the newly divided Berlin than Not for Export (1954). It's our pleasure to ensure that these excellent works and many others like them are available to Canadians.

George Orwell's Nineteen Eighty-Four vs. Lewis Sinclair's It Can't Happen Here

Our catalogue naturally includes Nineteen Eighty-Four, and other works by Orwell. But it also includes Lewis Sinclair's It Can't Happen Here (1935), written during the rise of European fascism, and dealing with the question of whether an authoritarian regime could be imposed on the United States. The title suggests it could not; the actual novel suggests it could. As it became obvious that the 2016 US presidential election would be an important one, Sinclair's novel seemed an obvious choice for our catalogue. If the CUSMA copyright extensions had been in place, we could not have published the book. Allowing a copyright of negligible value on a work 86 years old to take precedence over our right to contribute to Canada's national dialogue would have been a blatant violation of our freedom of expression, a "fundamental freedom" under the Canadian Charter of Rights and Freedoms.But with the CUSMA extensions in place, we would have been barred from making this book available to Canadians.

Lewis Sinclair's Kingsblood Royal (1947)

Another book by Sinclair Lewis (who in his early years of fame had been the first American awarded the Nobel Prize for Literature) is Kingsblood Royal (1947), a carefully researched novel, founded in reality, of an American man, Neil Kingsblood, who discovers that he is of mixed ancestry, and is descended in the male line from an African-American. It had a cool and even hostile reception on its publication – except from critics who were Black. It was our privilege to add this classic title to our catalogue in 2016, as our contribution to the debate over Black Lives Matter. Again, the CUSMA copyright extensions would have prevented us from doing this.

A very special author: Louis Golding (1895-1958)

And I can't leave unmentioned Louis Golding, born in Manchester, but of Ukrainian-Jewish descent, and very famous in his time. His Mr Emmanuel (1939) contains a haunting and unforgettable narrative of how the title character slips into Berlin on the eve of the Second World War, searching for the mother of a refugee he has met in England, and discovers to his shock the proportions that the Holocaust has already reached.

It's worth saying again: "Term extension leads to work extinction".

Who's coming up: authors nearing the public domain

I have been spending relatively less time than formerly finding candidate authors nearing the end of copyright, since it is painful to contemplate the huge cultural losses that foreign lobbyists and their government are threatening Canada with. Also, much depends on which specific authors our volunteers are most interested in working on! But here are three authors of definite interest:

Cedar Paul (1880-1972)

In collaboration with her husband Eden (1865-1944), the translator into English of dozens of works (by such authors as Stefan Zweig and Emil Ludwig) in German, French, Italian, and Russian.

L. P. Hartley (1895-1972)

Novelist, some of whose works touch on gay themes

William Plomer (1903-1973)

The gay South African poet and novelist

Some works by an author are more popular than others

It's important to note the "top ten" effect. It's often the case that an author has written dozens or hundreds of works, but that only a very few are still known, and the rest have become permanently unavailable. By paying to register a work, the copyright holder is motivated to ensure that this is money well spent and to make the work available to purchase. If the copyright holder chooses not to pay the copyright fee, they are still entirely at liberty to publish the item, but if they do not, it is possible for others (such as Project Gutenberg Canada) to step in and make the work available once again. This is an easy way of avoiding "orphaned work hell", where demand may exist, but the work remains unavailable, trapped by a useless copyright.

CUSMA'S destruction of heritage

Here I speak from personal experience, as a gay man who participated fully in the gay liberation movement forty years ago. It was not an easy time to be gay. And gay culture lived in a hostile environment: books were impounded, and editorial premises raided and subscribers' lists seized -- I worked at a gay magazine, The Body Politic in Toronto, where this actually happened. Because of the prevalent fear and caution, gay literature was rare and precious. I was looking forward to publishing an increasing number of gay titles in coming years, reflecting the increase in gay literature fifty and sixty years ago, and giving these works the circulation they deserve, and which Canadians need. Similarly, I was looking to increase the number of Black novels from what we already have. The copyright extensions kill the access of gays and Blacks and other marginalized groups to our heritage, for this type of literature is naturally more likely to have become permanently unavailable.  I cannot accept this attack on my cultural heritage.

Some unusual features of the CUSMA process and outcome

The underlying assumption in the call for submissions is that CUSMA is a fully acceptable outcome of a legitimate process. This is very far from being the case, as everyone knows, for this trainwreck of a process happened in full view of the Canadian public. We all witnessed the monstrous untruths coming from Washington and the president's many rallies, the illegal tariffs and stream of threats, culminating in the splitting off of Mexico, the isolation of Canada, and the signing of an agreement under obvious duress. Corporate Canada was involved, but Canadian citizens were not. And then, with the COVID-19 pandemic already raging, everything was pushed through Parliament in a single day.

In a properly functioning parliamentary democracy, this would be inconceivable. We can look at how the last US presidency ended in a wave of lawlessness and insurrection, but we should not fool ourselves and say that Canadians were not affected. We were, and we must avoid deluding ourselves. The process of healing and correction must begin.

Part of this is recognizing that CUSMA is not an agreement, but an arrangement, designed to buy peace from an aggressive foreign government.

Final recommendations

1. Require registration as recommended by the Commons copyright committee:

"The Committee believes that requiring rights-holders to register their copyright to enjoy its benefits after a period equal to the life of

the author plus 50 years would mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system." (Preamble to Recommendation 6)

2. Suspend the current consultation

It duplicates the work of the Commons committee, and attempts to overturn the committee's unanimous recommendation of registration. This is an unacceptable interference with the workings of the Commons, and with the rights of the Canadian people.

3. Proceed with setting up a registration system

This is a better use of time than continuing with the current consultation.

4. Initiate CUSMA discussions with the Biden administration

As discussed above, CUSMA in its current form is clearly illegitimate: to start with, its coercive nature appears to violate international law, not just in the way it seizes control of Canadian copyright law, but in certain other areas, such as exports to third countries. Discussions should be initiated with the Biden administration on these issues, which stem from the previous administration, with a view to revising CUSMA so as to promote free trade, while respecting national sovereignty in such areas as copyright law. In view of the hugely flawed nature of CUSMA, notably in the area of the climate crisis, there is much to be said for cancelling it altogether, and starting afresh.

In closing, I would like to thank the Government of Canada for inviting citizen participation in CUSMA. Better late than never! Ironically, the best course does indeed seem to be simply implementing registration as proposed by the all-party Commons committee, who seem to have paid the closest attention to the people of Canada. I commend their example and their recommendations to the Government.

Dr Mark Akrigg
Founder, Project Gutenberg Canada