Rumi Graham

Submission to the copyright term extension consultation

March 29, 2021

Thank you for the opportunity to comment on issues identified in A Consultation on How to Implement an Extended General Term of Copyright Protection in Canada (A Consultation)^{Footnote 1} released in February 2021 by Innovation, Science and Economic Development Canada. One of the recommendations in my institution's September 2018 brief submitted to the INDU Standing Committee on the statutory review of the Copyright Act was to maintain the Berne Convention minimum term of copyright.^{Footnote 2} Given that Canada is now required to extend its general term of copyright protection pursuant to the Canada-United States Mexico Agreement (CUSMA)^{Footnote 3} which came into force in July 2020, I offer some personal thoughts on how this requirement might be implemented.

These thoughts are framed by copyright's purpose as expressed in the first copyright law, the Statute of Anne, which began with the words, "An act for the encouragement of learning."^{Footnote 4} While the Canadian Copyright Act contains no purpose statement, in 2002 the Supreme Court stated the Act "is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator."^{Footnote 5} Similarly, the preamble to the 2012 Copyright Modernization Act noted that "the exclusive rights in the Copyright Act provide rights holders with recognition, remuneration and the ability to assert their rights, and some limitations on those rights exist to further enhance users' access to copyright works or other subject-matter."^{Footnote 6}

A Consultationoutlines two broad approaches to meeting Canada's term extension requirements under CUSMA: implementation with or without accompanying measures. This submission recommends that appropriate accompanying measures be used to partially offset the imbalance in private and public interests anticipated to arise from copyright term extension in Canada. It supports recommendation 6 of the Standing Committee on Industry, Science and Technology (the INDU Committee) to amend 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 7} The following comments consider concerns identified in A Consultation about this INDU Report recommendation and touch on issues pertaining to the role of the public domain in maintaining copyright's balance.

A Consultation states that "the approach recommended by INDU raises serious questions"^{Footnote 8} but offers little elaboration. It notes that Canada's treaty obligations such as those under the Berne Convention prohibit the imposition of registration and other formalities on foreign works as a condition for copyright protection. However, in an examination of formalities prohibited by the Berne Convention, J. Ginsburg explained that while "formalities, such as renewal registrations, that condition the duration of copyright during the Berne minimum term violate article 5(2)… 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 9}

Under Canada's current general term of copyright, U.S. and Mexican copyright owners enjoy only life plus 50 years of protection when their works are used in Canada although the term of copyright in their domestic copyright law is life plus 70 years and life plus 100 years, respectively. The Berne Convention provides that "apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect [their] rights, shall be governed exclusively by the laws of the country where protection is claimed."^{Footnote 10} Moreover, Article 25.5 of CUSMA states that "Each Party shall be free to determine the appropriate method of implementing the provisions of this [Intellectual Property Rights] Chapter within its own legal system and practice."^{Footnote 11} It thus would seem consistent to require registration for the final 20 years of protection in Canada for all copyright owners, even without a similar requirement in U.S. and Mexican copyright law.

Regarding concerns noted in A Consultation about the cost of registration fees and new pressure on copyright owners to register their copyrights, the INDU Committee's recommendation 6 proposes only to require registration of works by copyright owners who wish to enjoy the extended period of copyright in those works. As the end of the minimum term approaches, owners who are potentially interested in the extra years of protection could weigh anticipated costs and benefits of registering works for the additional years of protection that take into account their ownership experiences over the initial period of protection. In this view, a registration fee may be a reasonable cost for anticipated years of additional ownership benefits that partially offsets the threat to copyright's purpose introduced by term extension.

How does copyright term extension threaten the balance between promoting the production and dissemination of creative works and obtaining a just reward for creators? It does so by slowing down the flow of protected creative works into the public domain where they can be reused without need for permission or fee payment by everyone, including creators, educators, and learners. As J. Litman observed, "the very act of authorship in anymedium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea…This is not parasitism: it is the essence of authorship. And, in the absence of a vigorous public domain, much of it would be illegal."^{Footnote 12} Ideas are the non-copyrightable building blocks of creative works and learning. Shrinking the public domain by reducing unfettered access to ideas captured in formerly copyrighted materials hampers encouragement of creativity and learning.^{Footnote 13}

Does term extension nonetheless ameliorate perceived problems of public domain works such as their reduced availability or eroded value through overuse or low-quality use? In a study that probed this question by investigating the audiobook recordings market for U.S. fiction bestsellers, C. Buccafusco and P. J. Heald found no evidence to support the idea that public domain works are less available or less valued than copyrighted works.^{Footnote 14} Their results showed bestsellers in the public domain were significantly more likely to be available as audiobooks than copyrighted bestsellers, that the average number of available recordings was similar for public domain and copyrighted bestseller titles, and that the quality of professionally produced audiobooks of public domain and copyrighted bestsellers were also similar.^{Footnote 15}

The hypothesis that public domain works suffer from reduced availability was further examined by J. Flynn, R. Giblin, and F. Petitjean in their international study of the availability of public domain and copyrighted books in ebook format in the holdings of public libraries in Australia, New Zealand, the U.S. and Canada.^{Footnote 16}Across all four countries, they found that "works are more available from commercial publishers when they are in the public domain than when the same books are under copyright,"^{Footnote 17} a finding that corroborates those of C. Buccafusco and P. J. Heald, above. Studies like these provide credible evidence that a longer term of copyright does not incentivize publishers to make works commercially available. Furthermore, J. Flynn, R. Giblin, and F. Petitjean point out that "where copyright has been extended, libraries are being obliged to pay higher prices in exchange for worse access."^{Footnote 18}

The problem of imbalances stemming from an overly long term of copyright was recognized by M. Pallante, U.S. Register of Copyrights from 2011 to 2016. In a discussion of possible reforms for U.S. copyright law, she observed that "the current term… is long, and the length has consequences…The question now is how to make the long term more functional."^{Footnote 19} She suggested one way to add some balance is to "shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner."^{Footnote 20} That works would otherwise enter the public domain after life plus 50 years was not viewed as an obstacle: "This should not… present insurmountable problems under international law. The Berne Convention requires a minimum term of life plus fifty years, defers to member states as to the treatment of their own citizens, and provides the term of protection of the country of origin for the works of foreign nationals."^{Footnote 21}

All the same, does copyright term extension encourage the societally beneficial outcome of providing further incentives to create and disseminate? A report by E. Rappaport for the U.S. Congress showed the likelihood of copyright term extension resulting in increased incentives to create works is exceedingly small: "Even allowing for the optimism and self-confidence necessary in these creative and risky fields, the wildest dreams of artists and producers probably extend no farther than 'smash hit' status for their works for a year or two, and healthy sales for five or ten. It is hard to imagine anyone intensifying their efforts on the expectation of their work being commercially viable beyond 75 years."^{Footnote 22}

A Consultation also raised concerns about possible duplication of administrative efforts between the government's registration system and Canadian collective societies. This issue is worthy of investigation, and the results of such an investigation should be used to inform an efficient, balanced implementation of a registration for copyright protection beyond the Berne Convention minimum term.

What about other possible means of mitigating inequities that would be introduced by implementing an extended general term of copyright without measures to offset imbalances? Of the suggestions presented in A Consultation, perhaps the option to create a new infringement exception during the final 20 years of protection offers the strongest ability to rebalance public and private interests. However, unlike the narrow approach described as "Option 4" in A Consultation,^{Footnote 23} such an exception should be broadly available for non-profit purposes to all of Canada's individuals and organizations that have "public-interest missions," which includes educational institutions, teachers, students, and members of the creative communities and cultural organizations both within and beyond libraries, archives, and museums.

A final thought concerns items that will have entered the public domain in Canada within the 20-year period immediately prior to the effective date of term extension, which has yet to be determined. To avoid confusion and further complicating the at-times complex process of assessing whether a work or other subject-matter is copyrighted or in the public domain, it will be important to ensure that term extension implementation does not have the effect of retroactively reviving copyright protection for items that are already in the public domain.

In summary, I strongly recommend the inclusion of appropriate accompanying measures such as the INDU Committee's recommendation 6. Such measures are needed to ameliorate harms that copyright term extension will introduce to copyright's essential purposes of encouraging learning and balancing the public interest in robust access to creative works with just rewards for creators and copyright owners. In light of studies such as that of J. Flynn, R. Giblin, and F. Petitjean which demonstrate that "commercial exhaustion widely occurs before even the shortest minimum terms of life + 50 years,"^{Footnote 24} it is imperative for Canada to comply with its CUSMAobligations regarding copyright term extension in a manner that is evidence-based and guided by full appreciation of the need to preserve and foreground copyright's fundamental, public-interest purposes.

Rumi Graham

University Copyright Advisor & Graduate Studies Librarian
University of Lethbridge