Meera Nair

To: Hon. François-Philippe Champagne, MP—Minister of Innovation, Science, and Industry Francois-Philippe.Champagne@parl.gc.ca
Hon. Steven Guilbeault, MP—Minister of Canadian Heritage Steven.Guilbeault@parl.gc.ca
Hon. David Lametti, MP—Minister of Justice and Attorney General of Canada David.Lametti@parl.gc.ca

cc: copyright-consultation-droitdauteur@canada.ca

Re: Public consultation regarding increasing the term of copyright March 30, 2021

Dear Ministers:

As indicated on 11 February 2021, the Government of Canada intends to extend the term of copyright protection by an additional twenty years. CUSMA is cited as the impetus for this increase, implying that impeding the growth of our public domain is the price Canadians must pay for some degree of stability with our continental trading partners.

When it comes to copyright policy, Canada is no stranger to being under orders from dominant nations—such has been our history since before Confederation. The combination of British Imperialism and American capitalism was, and remains, hard to overcome.^{Footnote 1} That said, sovereignty need not be entirely jettisoned. Canada has historically sought to meet outside demands through more local solutions^{Footnote 2} and could do so again. Indeed, CUSMA seems to encourage it: "Each Party shall be free to determine the appropriate method of implementing the provisions of this Chapter within its own legal system and practice."^{Footnote 3}

From the information provided to the public, it seems that ISED has not yet adequately probed the costs associated to term extension and merely assumes that an increased term is largely beneficial to Canada:

A longer general term of protection will increase opportunities for Canadian rights holders to monetize copyright-protected content, thereby encouraging investment in the creation, acquisition and commercialization of such works. It will also harmonize Canada's general term with that of our major trading partners, allowing Canadian rights holders to compete internationally on a levelled playing field. While term extension is expected to bring benefits, user stakeholders have raised concerns that it may have negative consequences, particularly in the form of reduced access to works.^{Footnote 4}

User stakeholders were emphatic that term extension will have negative consequences for generations to come. As statutory change of any kind does not happen in vacuum, Canada must step carefully. Term extension ought to be addressed only after conducting a comprehensive analysis of Canada's system of copyright, taking into account our unique history and current status in the global trade of cultural goods.

Graham Reynolds is persuasive that changes to copyright law should be guided in similar fashion to laws affecting the environment—that is, through the lens of a precautionary principle.^{Footnote 5} He acknowledges the differences between a physical environment and an intellectual one, but also identifies a critical similarity: "not all harms can be remedied after the fact." Reynolds' recommendation that an independent panel assess prospective changes to copyright law would have served Canada well at this time; in the absence of an independent review, a variety of input should be sought. This government has extended the window of opportunity for participation in this consultation, but given that the extension was announced at the eleventh hour, it is unlikely to result in an outpouring of comprehensive input from Canadian creators, educators, legal scholars, and civil society advocates.^{Footnote 6}

What follows are only a few aspects of what a holistic, evidence-based, analysis of term extension could include. Briefly, I ask this government to: (i) begin their deliberations with the goals of a robust system of copyright uppermost in mind (namely, to have a thriving public domain from where intellectual activity blossoms); (ii) heed arguments opposing term extension articulated by, among others, five Nobel Laureates in economics; (iii) implement a registration system to mitigate the collateral damage that term extension will inflict; (iv) provide Canadian creators with tangible, meaningful protection when they engage in fair inclusion of third-party works by revising Section 29 (Fair Dealing) to be an illustrative exception; and (v) remove the prohibition on breaking digital locks when the intended use of underlying content would be lawful under the Copyright Act.

About me. I hold a BSc. in mathematics and a Ph.D. in communication. For over fifteen years my research has focused on systems of copyright, especially Canada's experience in this realm. My prior employment spanned consulting on technology-transfer projects and sessional teaching; I now serve as the Copyright Specialist for the Northern Alberta Institute of Technology.

The opinions expressed herein are entirely my own. The support of other Canadians as noted on the final page of this submission also occurs in their capacity as individuals.

Sincerely,

Meera Nair

Edmonton, AB T5J 1A7

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1. The nature of copyright

   Copyright ostensibly represents a bargain between the state and a creator. In exchange for monopoly control over an intellectual creation—enforced by statute, for a fixed period of time — the intellectual creation in its entirety is eventually given to the public domain where it may be substantively re-used/re-invented by all who choose to do so. Prior to that temporal moment, during the period of statutory protection, an intellectual creation is also subject to statutory limitations (exceptions) to that protection. This ensures that the principal goal of our system of copyright—to protect the process of creative or intellectual endeavor^{Footnote 7}—is not defeated by the system itself.

   Scientific progress, the creation of cultural works, citizen engagement, and technological innovation are notoriously difficult to predict or support as they often include a touch of serendipity.^{Footnote 8} The only element of intellectual progress that can be stated with certainty is that all intellectual effort relies on engagement with other work.^{Footnote 9} As Canada strives to "build back better" in the aftermath of this pandemic—a goal that will take years to come to fruition—this is no time to decrease Canada's competitiveness in long-term knowledge creation and distribution.

   Nearly twenty years ago our Supreme Court reminded us that:

   "Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.^{Footnote 10}

   Two years later, our highest court again spoke of "the importance of maintaining a robust public domain that could help foster future creative innovation."^{Footnote 11} Curtailing the growth of the public domain is not a step to be taken lightly. It is of paramount importance to fully probe the future harm to the public interest (comprising users and creators in interchangeable roles) that is served through the system of copyright.

2. Learning from our neighbor

   As the United States underwent this same process in 1998, Canada has considerable experience to draw on. Adding twenty years to American copyright term provoked an outpouring of legal analysis and scholarly activity that remains salient today. After term extension became reality, a constitutional challenge prompted further scrutiny.^{Footnote 12} As a result, an economic analysis provided to the United States Supreme Court (signed by seventeen prominent economists, including five Nobel Laureates) laid waste to any misconceptions that extensive copyright duration is good for society as a whole. From their summary:

   It is highly unlikely that the economic benefits from copyright extension outweigh the additional costs. Moreover, in the case of term extension for existing works, the sizable increase in cost is not balanced to any significant degree by an improvement in incentives for creating new works.^{Footnote 13}

   With meticulous detail, the economists illustrate that the monetary impact afforded by twenty additional years duration is negligible even for those who hold protected works that may still be circulating at that time,^{Footnote 14} and, that the costs for those attempting to use older works in new creation is heightened:

   Many new creative works are built in part out of materials from existing works. For example, new fiction re-tells old stories, new documentaries re-use historical footage, and new music re-mixes and transforms old songs. Improvements in the technology of search and recombination continue to expand the economic importance of new creation based upon old materials. If building-block materials are copyrighted, there are two sources of inefficiency to consider. If the later innovator must pay for use of the earlier work, this will raise the innovator's cost of making new works, reducing the set of new works produced. In addition, if the process of bargaining and contracting is itself costly, a copyright holder's control over derivative works imposes an additional tax on innovation.^{Footnote 15}

   It will be pointed out that this analysis is specific to the American market. If anything, that makes term extension even more damning in the Canadian context. When a market as large as that of the United States, where domestic creations (from individual authors to Hollywood studios) dominate, still cannot substantiate the argument for extending the term of protection, it is Hollywood fantasy to argue that term extension will serve Canadians well.

   The economists also draw attention to the heightened costs for new creations when copyright holders of protected works are difficult to locate. "Difficult" in many cases means impossible when the copyright owner is untraceable. Works like these, known as orphans, will proliferate with term extension, which can only be detrimental to future creative effort, education, research, freedom of expression and civic awareness.

3. What about the orphans?

   Orphan works have been the subject of scholarly focus and activity for many years. Canada's current orphan works scheme—whereby the Copyright Board may issue a license and corresponding fees to enable re-use of an orphan work—provides one means to recover works that are fading into oblivion. For instance, the re-release of Bye Bye Blues (first seen in movie theatres in 1989), directed by Edmonton-born filmmaker Annie Wheeler and starring Canadian actress/singer Rebecca Jenkins), is testament to the importance of facilitating the recovery and reuse of orphans lost (or disowned) in the wilderness.^{Footnote 16} However, the current system is flawed as the fees, held for five years on behalf of the absent copyright owner, revert to a collecting society if the owner fails to materialize.^{Footnote 17} To put it more bluntly, payment is extracted from the new creator or distributor, and paid to those who had nothing to do with the creation or distribution of the content. It would make far more sense to return those fees to the downstream creator or distributor who has shown initiative to keep the work alive, and thus encourage those individuals to continue such efforts with other orphan works.

   Ariel Katz has written extensively on this subject and invites us to separate copyright law from copyright dogma. We operate predominantly under the imperative of seeking permission first before using substantial third-party content, a practice that has some merit in circumstances where no exception to the use applies and where the costs of seeking and obtaining permission are appropriately low when compared to the expected returns of using the work. Yet when it is impossible to seek permission from a copyright owner, such dogma does not serve anyone well. As Katz writes:

   For the copyright dogma, the wrong in using someone else's work without permission has nothing to do with impairing the ability of the copyright owner to participate in the marketplace … Nor does it lie in any other measurable concept of harm to the owner or society. If it did, there would be no problem in recognizing that the permission-first rule could be relaxed when the owner is unlocatable or where the use cannot cause any harm and the rule prevents beneficial uses of the work. …

   The copyright dogma does not treat copying without permission as a harmful act against an owner but, rather, as a sinful act, wrongful in and of itself. … Thus the dogma views unauthorized copying as inherently sinful and regards prior permission as the means to avoid and absolve that venial sin of copying. …

   This resembles some aspects of Catholic dogma in the Middle Ages; the Catholic Church realized that if it could not prevent sin altogether, it might as well monetize the sin through the sale of indulgences.^{Footnote 18}

   Given that ISED is considering proposals that address orphan works by expanding reliance on both collective societies and the Copyright Board, additional remarks by Katz should remain uppermost in mind:

   It no longer matters whether permission is sought from the owner or from someone else, as long as that person is willing to step into the shoes of the absent owner and collect a fee in her stead. In fact, one cannot help but suspect that those who could benefit from stepping into the shoes of the absent owners are those who have the greatest motivation to promote the dogma [of a permission-first-culture.]^{Footnote 19}

   Katz proposes instead to increase the responsibility of owners to make themselves more locatable; that just as a user has a duty not to infringe upon an owner's copyright, the owner has a corresponding duty to ensure that a user has recourse to accurate information that can facilitate permission-seeking. The means by which such information could be gathered and made available is already at hand—Canada need only expand the use of the present copyright registry.

   The use of registration in connection to additional years of protection was discussed at length during the 2017-2018 Copyright Review, to the conclusion that:

   The [INDU] 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. The Committee therefore recommends… That, in the event that the term of copyright is extended, the Government of Canada consider amending the Copyright Act to ensure that copyright in a work cannot be enforced beyond the current term unless the alleged infringement occurred after the registration of the work.^{Footnote 20}

   ISED has downplayed this recommendation of the INDU committee and suggests that registration could violate Canada's international obligations, namely those under the Berne Convention. Yet while the Berne Convention sets minimum standards of protection and expressly prohibits imposition of formalities (like registration) on foreign copyright owners, all protection is limited by time: "the term of protection granted by this Convention shall be the life of the author and fifty years after his death."^{Footnote 21} Registration would alleviate the challenges endured by Canadian creators, educators, researchers, librarians, and archivists wishing to work with Canadian content.

   In an expansive article detailing how formalities cannot be applied as a condition of copyright in Berne-nations, Jane Ginsburg takes care to illustrate when formality can be applied and specifically addresses registration:

   Formalities, such as renewal registrations, that condition the duration of copyright during the Berne minimum term violate article 5(2). But member states might institute mandatory renewal obligations after the lapse of the Berne minimum term. Thus, a member state with a life+70 term might condition domestic and foreign authors' enjoyment of the extra twenty years on a renewal filing.^{Footnote 22}

   Registration as a means to address some of the collateral damage of term extension had been endorsed even earlier from within the highest copyright office of the United States. In 2013 Marie Pallante, then-Register of the United States and Director of the U.S. Copyright Office, commented that "[copyright's term of] life of the author plus seventy years—is long, and the length has consequences. The question now is how to make the long term more functional."^{Footnote 23} Pallante then provided an answer: "copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain."^{Footnote 24} As neither Ginsburg nor Pallante could be characterized as staunch user rights advocates, their conviction that the Berne Convention would not thwart registration during the last twenty years of life plus seventy should carry substantive weight in discussions within ISED.

   It must be acknowledged that ISED expresses an alternate concern with respect to registration as a condition to maintain copyright for the last twenty years of a life plus seventy term, that it "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."^{Footnote 25} Scrutiny of the 2017-2018 Copyright Review reveals that support for term extension emanated from commercial sectors.^{Footnote 26} This comes as no surprise given that corporate entities with large holdings of commercially successful works have at least some potential to gain revenue through longer periods of control. As I have written elsewhere "they are the epitome of 'owners of copyright in multiple works.' But to suggest that such companies are ill-equipped to handle the administration and costs of registration lacks conviction."^{Footnote 27}

   As far as individual copyright heirs are concerned, the decision to register or not will only arise in the 49th year after the creator's death, which affords considerable time to determine if the work has any potential for commercial exploitation and merits the cost and effort of registration.

   Moreover, as the value of the registration is in the information provided—registration need not (and should not) be priced exorbitantly.

4. Making the Longer Term Functional

   Term extension without broad mitigating factors (like a registration system) means Canada will be poorer for the next twenty years while our public domain is rendered stagnant. Individuals that work with older content either for preservation or to reinvigorate those literary, artistic, dramatic, and musical creations will lose a great deal of fodder.^{Footnote 28} There is no substitute for unfettered access to decades-old content. However, a more expansive understanding of what comprises the public domain could enable Canadians to make the best of a bad situation.

   The public domain has received increasing attention as the scope of copyright grew unchecked.^{Footnote 29} Yet in conventional public dialogue, the public domain's importance to the overall functioning of the system of copyright is minimized or carries an aura of disgrace or neglect—the phrase "fall into the public domain" is pervasive. ^{Footnote 30}

   To our benefit, Reynolds comprehensively describes the many roads into the public domain:

   … the public domain encompasses material that has never been covered by intellectual property rights [IPRs]; material formerly covered by [IPRs] in which the grant of rights has expired (or been declared invalid); uses of material that are deemed not to be covered by [IPRs] through the application of defences/exceptions to intellectual property infringement (or that can be considered to be user's rights); and uses of material that are not covered by [IPRs] by virtue of the application by the owners of flexible licenses through which certain rights are disclaimed [such as Creative Commons].^{Footnote 31}

   "Through application of user rights" means that the public domain is not limited as a function of time, but rather takes shape by a function of use. When individuals lawfully engage with protected content through Fair Dealing or other exceptions and open licenses, at that moment, under those circumstances, the content in question serves as public domain material.

   This may offer some comfort to those engaged in education and research, as these purposes within Fair Dealing are well supported through prior case law. But not everyone has an exception to take refuge in.

5. Closing Gaps in the Copyright Act

   We want Canadian creators to be able to operate on a level playing field with their international partners. Our creators and rights holders should reap the full rewards of their work, and Canadians should have access to a variety of content. Implementing our CUSMA commitment to extend the general term of copyright protection will contribute to a healthy Canadian copyright marketplace.

   While I do not share the Minister's enthusiasm for term extension, we enjoy common ground in the desire that Canadian creators may operate on a level playing field with their international partners. Fortunately, Canadians already benefit from a copyright term of life plus seventy years when their work circulates in the United States because the United States does not observe the rule of the shorter term.^{Footnote 33}

   That said, a significant disparity remains between Canadian and American creators. Canada offers no protection for professional creators wishing to engage in fair inclusion of third-party work towards creation of new art, music, literature, film, etc. Even though the 2012 amendment of the Copyright Act included Section 29.21—NonCommercial User Generated Content Exception— this exception only shelters amateur creations that incorporate existing protected works. Which leaves professional Canadian artists, musicians, writers, photographers, filmmakers etc. with no protection for such creative activity, all the while their American counterparts may find shelter under Fair Use.

   When Section 29.21 was unveiled, speaking for Artists' Legal Outreach, Martha Rans was blunt:

   Josh Hite, a Vancouver media artist, made a video called Chug Chug Chug, based on clips he found on YouTube. The exception as drafted makes it no easier for him to show it, even at a festival. Even a non-profit festival in Brazil has turned him down. … A new copyright regime that enables artists to create transformative works is what we need, one that respects how art is actually made.^{Footnote 34}

   If a Canadian work can be deemed criticism, review, satire, or parody, then Fair Dealing can be claimed. But as I have also said before, "It seems lacking in national imagination that we devise laws such that Canadian art must be predetermined to serve a set social purpose. Sometimes art is just art."^{Footnote 35} By stunting the public domain through term extension, creators will have less usable, comfortably safe material to work with going forward. It is past time to adopt a flexible exception—for instance, Fair Use—where legitimacy of use is solely determined by a fairness analysis.

   Finally, even the best exceptions become meaningless if the current prohibitions on digital lock breaking continue. As was detailed when Canada adopted these prohibitions, to ally lock breaking to actual infringement is consistent with our international obligations.^{Footnote 36} Thus it was nonsensical then, and remains so today, to make lock breaking an act of infringement when the intended use of the content is lawful. As Canadians brace for the impact of term extension, removing this prohibition is the least our government can do.

   The issues I raise here are only a fraction of what a holistic, evidence-based, analysis of term extension should include. Increasing the duration of copyright in Canada may well be the most significant change to our system in close to a century—I am referring to Canada's independent adoption of the Berne Convention in the 1920s.^{Footnote 37} While joining such a treaty tends to be hailed as a progressive stance by any country, Sara Bannerman details a darker reality: "The Berne Convention embeds and reinforces the substantive inequalities of the international system, enshrining rich countries and corporations, the primary producers of copyright works, as the main beneficiaries of international copyright … with few mechanisms to ensure that local public policy goals [of poorer countries] are met."^{Footnote 38}

   Canada was among the "poorer nations" to be subjected to the entrenchment of "substantive inequality" without means to ensure its "public policy goals" were met. After Britain persuaded the young Dominion to initially comply with the Berne Convention in 1886, with the promise that Canada could later withdraw, the Convention impeded Canadian efforts to develop its literary industry. Despite heroic efforts by Sir John Thompson (Canada's fourth prime minister) to illustrate how detrimental the Berne Convention was to Canadian authors and publishers, Britain refused to play its part in the administrative tasks necessary for Canada's withdrawal.^{Footnote 39}

   The world has moved on and it would be trite to suggest now that Canada can or should disengage from international agreements. But we can and ought to address Canadian needs where it is possible to do so. To those who worry that imposing the formality of registration on term extension is not the international norm, Canadians should remember how those norms came to be. Expanding the depth and breadth of copyright has always been to the advantage of countries with the larger cultural industrial output—it is those countries who have historically set the agenda for bilateral and multilateral agreements with respect to copyright.^{Footnote 40}

   I would like to close by thanking the individuals who support my submission (see following page). Each has a keen interest in this topic and a high regard for the public interest.

   Sincerely,

   Meera Nair

   Edmonton, AB T5J 1A7

Endorsements

Sara Bannerman, Associate Professor, Canada Research Chair in Communication Policy and Governance, Department of Communication Studies & Multimedia, McMaster University

Michael Everton, Associate Professor, Department of English, Simon Fraser University

Roger S. Fisher, Associate Professor, Department of Humanities, York University and Barrister and Solicitor, Law Society of Upper Canada

Richard Ford, Instructor, JR Shaw School of Business, Northern Alberta Institute of Technology, Edmonton, Alberta

Sandra Kram (Senior Editor and Copyright Officer, NorQuest College, 2004-2016)

Lisa Macklem, Lecturer, King's University College:
As a copyright and media scholar, I fully endorse this submission. I would like to highlight the careful analysis of the economic effects of term extension, particularly on public domain and orphan works. I also fully support the comments here on a more robust fair dealing exception and a well thought out registration process to balance the inequities being forced upon us by CUSMA.

Lachlan MacLeod, Halifax, Nova Scotia

Mark A. McCutcheon, Chair—Centre for Humanities, Professor of Literary Studies, Athabasca University:
As a scholar of copyright, I fully support and endorse Dr Nair's submission. Several studies have demonstrated that copyright term extension benefits only net intellectual property (IP) exporters, like the USA. Net IP importers, like Canada, do not benefit from copyright term extension, which will instead wreak havoc on Canada's public domain and invalidate millions of dollars' worth of publicly supported research and publishing endeavours (see McCutcheon, "Implications of the TPP," 2016). Copyright term extension should at the very least be made subject to rights holder registration—the INDU committee's recommendation is an excellent solution to the unacceptable predicament in which the USMCA negotiation has placed Canadian culture and innovation.

Nick Mount, Professor of Canadian Literature, University of Toronto

Laura J. Murray, Professor, Department of English, Queen's University, and Co-Director, Graduate Program in Cultural Studies

Brianne Selman, Scholarly Communications and Copyright Librarian, Winnipeg, Manitoba