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Warren Clements, writer/publisher (Nestlings Press), Toronto

From: W Clements
Sent: February 13, 2021 9:57 AM
To: copyrightconsultation / consultationdroitdauteur (PCH)
Subject: Response to the invitation for comments on copyright extension -- Warren Clements

I would like to add my voice to those who think the extension of copyright by twenty years after death (to seventy years) is a step too far, and that anything we can do to mitigate this provision, we should do.

The three countries agreeing to USMCA "recognize," in Article 20.4, "the need to … promote innovation and creativity … [and] facilitate the diffusion ofinformation, knowledge, technology and the arts … [while] taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public."

Adding twenty years to the term of copyright imposes a cost on "diffusing" the information, knowledge and artistic contents for so long that it makes a mockery of "taking into account" the interests of user and the public. With death-plus-70, almost no one alive at the time of publication will legally be able to do what, for instance, hundreds of authors have done with Sherlock Holmes – reinvent him, create new adventures for him, make cultural use of a literary icon. Just as there is a societal value in protecting an author's right to profit from his creation, there is a societal value in freeing other artists or users to disseminate and expand that creation. Deciding at what point the first element may give way to the second element is the art of copyright law – and death plus 70, to my mind, ignores society's second interest.

So, to the extent that orphan works and others may be freed from the term extension, I am all in favour.

I would also like to raise a point that doesn't seem to have been addressed.

Article 20.62 of USMCA permits each country to calculate the term of protection this way:

"(b) on a basis other than the life of a natural person, the term shall be:

"(i) not less than 75 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or

"(ii) failing such authorized publication with 25 years from the creation of the work, performance or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance, or phonogram.

By my reading, this would permit Canada to change its term of copyright from"death-plus-50/70" to 75 years from the date of authorized publication, at which point the copyright would expire.

This would reduce (though not end) a major inconsistency. Let's say that Canada adopts the death-plus-70 rule. If someone publishes a work when she is 25, and she lives until she is 85, the work receives 130 years of copyright protection – the 60 years while she is alive, plus the 70 years after she dies. If she publishes the work when she is 70, it gets 85 years of copyright protection – 15 plus 70. Why should one work be protected for 45 years more than another?

I acknowledge that because Canada is a signatory to the Berne Convention for the Protection of Literary and Artistic Works, which requires us to provide protection for the life of the author plus 50 years, we would have to add this proviso: "The term of copyright shall not be less than fifty years after the death of the author." But in most cases – assuming the author lives 25 years after publishing a work – that would amount to the same protection we have had under NAFTA, death-plus- 50.  

I see nothing in the act that would prevent Canada from adopting this other basis. Certainly the United States, even under USMCA, continues to have a bifurcated system: Works published between 1923 and 1977 have copyright protection for 95 years from the date of publication.

To sum up: Whatever we can do to avoid being forced to add twenty years to the term of copyright, we should do.

Thank you for reading this.

Warren Clements, writer/publisher (Nestlings Press), Toronto