Canadian Copyright Term Extension. Okay, but…

Canada’s artists need the whole law fixed for an extension to really help us.

(image from my own King’s Chapel Burying Ground [Boston MA] t-shirt. My copyright term starts ticking down the day this shirt becomes reality for me. Spooky!)

As part of the Canada US Mexico Agreement (CUSMA) implementation, the Canadian government is right now in the process of extending the term of copyright protection for creative professionals and the creative industries with which they work. This is, generally speaking, very good news… but it’s certainly not the most pressing concern about Canada’s copyright regime. Term extension is happening at the behest of the United States, which expects a minimum term of protection for its own domestic intellectual property in the North American free market. Having accepted that demand, the Canadian government has now launched a short consultation on copyright term extension.

Why consult on a done deal? No one is exactly sure, but the consultation paper suggests some folks might not be happy with the idea of a term extension, and so this is an opportunity to air those views. For the record, I am quite satisfied with the idea of a term extension, and I will be saying so officially in the consultation. Well done, Canada.

Now, how about we fix our Copyright Act so the extended term really means something? A term extension requires a functioning market to be effective, and Canada does not have that right now.

There can be no doubt that the CUSMA term extension will benefit all Canadians (I get into my arguments about this below). Right now, though, the extension will enter into a fundamentally broken copyright system. For a decade, Canada’s creators have had no workable control over when and how our work is used, especially in the educational market. We have been unable to set a price for our work that is respected and paid. Hundreds of millions of dollars in earned revenue has been lost to ill-defined exceptions and non-functioning regulation, while we’ve spent bucketloads working our way through the court system. One of Canada’s lowest earning sectors — arts and culture — has borne the burden of poor legislation that could be fixed with a single act of government will.

So… great, term extension, we love it. But an extended number of years of not actually having protection for our works doesn’t really help. The cart is squarely before the horse right now. As a working Canadian artist, I thank Ministers Guilbeault (Heritage) and Champagne (Industry) for this consultation on my rights but, if I’m honest, I grow weary of consultations.

Over a nearly two-year consultation beginning in 2017, the government heard loud and clear that free educational copying must stop. I certainly delivered that message, as did the representatives of hundreds of thousands of creative professionals

The free copying has not stopped. Government can stop it. They really should.

A bit of background on copyright term extension for those unfamiliar with the concept.

Copyright is the legal landscape in which creative workers labour. It is the foundation of our contractual agreements, and the legal impetus for our livelihoods. It provides the market potential for artists to make a living and even, on rare occasions, to build real lasting wealth for ourselves and our families. The longer artists have legal ownership and control over our work, the more potential there is for us and our heirs to benefit from the work we’ve created.

Somewhat creepily, the term of copyright in Canada and almost everywhere around the world is measured by the date of the creator’s death. So, in Canada right now, my ownership of my own books lasts for as long as I can stay above ground, plus fifty years after. The CUSMA provision in progress gives me another twenty years — my death date plus seventy years. Sadly, it does not guarantee me any more time on earth.

Morbid? Yes, frankly, copyright term is an extremely gruesome bit of statute. I can’t think of another property right that is so firmly tied to the moment the property owner stops breathing. But here we are. Professional creators get into this business knowing that however successful we are in realizing remuneration for our work, no matter how long-lasting its value in the marketplace, the clock on that value starts ticking right after we shuffle off our mortal coil.

The ability to bequeath one’s property to heirs is a legal right demanded by free societies. There are various tax implications when doing so but, in general, property obtained, built and held in a family can remain in that family as long as there are heirs interested in taking it on. Ideally, the wealth attached to that property grows, and no end-date for growth is applied by the state. It is really only artists who, as a firm rule, are obliged to have their heirs or assignees lose ownership of their inheritance after a given period. We are expected to do so in the service of what is known as the public domain.

The public domain is an abstract concept imagining a vast collection of shared cultural product with no access limitations or prices attached. It is often promoted as though it’s a great big park outside the filthy grasp of the marketplace, full of fun things we can all use for free. Anti-copyright activists are fond of celebrating January 1st as Public Domain Day because with each passing year more works lose copyright protection and slip out of the control of their creators into that big, fun, free park.

In reality, works in the public domain never actually leave the marketplace. Look around. It is still quite possible to find public domain works of literature offered for sale, sometimes for a great deal of money. Every year, in fact, someone makes a lot of money from the enduring classics of literature. That someone is just not the original author or their heirs. No one has ever offered me a convincing rationale for this special market characteristic of creative works, but okay, I accept it as common practice subject to periodic adjustment. Give my heirs seventy years of control instead of fifty, and that’s a positive development in my eyes. If anything I write is still around that long after my death, I’m happy right now knowing my heirs will benefit from that success. Such a thought makes me want to write more.

The CUSMA change to our copyright term will align Canada with our greatest trading partners in the USA, the EU, the UK and Australia, and will position us a leader in the global advancement of cultural protections. Critics of the extension sometimes suggest that the old fifty-year term is some kind of global standard from which we’d be departing, but that’s an ignorant claim. Copyright terms are all over the map. Mexico, for instance, our other partner in CUSMA, has a term of 100 years of continued control after the death of the author. Around the world, there are terms of 60 years, 75 years, and eighty years. Of the most recently updated terms, it would appear 70 years is the standard, and therefore a growing trend. There is no reason why Canada should not join the trend.

And yet, expect the government consultation to hear some standard red herring complaints from the anti-copyright crowd. The academic blog postings have already begun spewing long discredited rhetoric:

· Term extension will rob the public domain of twenty years of new works.

· Extension will make access to our shared culture more difficult.

· Extension will be a burden on the education and library sectors who depend on the public domain.

· Most ridiculously, extension will cost Canadian billions of dollars.

At the heart of each of these complaints is a fundamental misunderstanding about the function of copyright (sad, given that those pushing these fictions often style themselves as copyright “experts”).

· Are we robbing the public domain by extending copyright?

Of course not. There would be no public domain without some term of copyright. Term extension merely delays the removal of protection from creative works, to the benefit of the creator and the culture as a whole. Extension is an economic incentive to create more works in one’s lifetime. The net result for the public domain will be more works, not fewer.

· Will term extension block access to cultural works?

An absurd suggestion. Copyright protection increases access to cultural works, by acting as an incentive to keep those works present in the marketplace. Almost always, when anti-copyright crusaders complain vaguely about access, they’re really talking about free access for other marketplace players who want to re-monetize the work in some way. Think of giant tech platforms who don’t want to pay for the works they use to sell ads against on their sites. Shorter copyright terms work in the favour of those landgrab business models, but we can likely all agree that tech is making more than enough money and doesn’t need more help from artists.

· Is term extension an unreasonable burden to schools and libraries?

See above under robbing the public domain. Properly funded schools and libraries are able to take part in the cultural marketplace responsibly, by purchasing and licensing the works they need for their important work. There isn’t a school or library in existence that functions only by accessing works in the public domain. Creative professionals holding copyright on their own works are the most important partners to, and supporters of, schools and libraries. If these sectors truly cannot afford the cultural works they need, that is a problem of funding, not copyright law.

· Finally, will term extension cost Canadians billions of dollars?

Well, thanks for the simplistic lesson in economics, anti-copyright professors. If a billion books are sold in Canada, that will cost Canadians billions of dollars. And we’re supposed to think of that as a bad thing for our economy?

Such an exchange would deliver billions of dollars in cultural value (in the form of books) to those same Canadian consumers, while stimulating and renewing the market for cultural products in Canada. Canadian creators will make more money from that market, paying back value through taxes and their own spending in other sectors.

Since when is a robust, functioning economy a net loss for Canadians?

Expect the copyright term to be extended. The consultation will not change that outcome. At best, the term will be extended with no concessions at all to the anti-copyright crowd, who’ve been repeating themselves endlessly from their comfortable academic tenures for the past twenty years, despite the growing value of intellectual property to the world economy. I guarantee no new insight on the badness of copyright term extension will be gathered by this consultation. But a bunch of anti-copyright theorists will be able to add another consultation brief to their CVs. Good for them.

Now, please, let’s get back to fixing the real problem in Canadian copyright. Canada’s artists have waited long enough.

John Degen is a novelist and poet. He is Executive Director of The Writers’ Union of Canada, an organisation representing more than 2,300 professional authors in Canada. He is also Chair of the International Authors Forum, which represents close to 700,000 professional authors worldwide. Views expressed are his own.

Read John Degen’s most popular Medium article: 5 Seriously Dumb Myths About Copyright The Media Should Stop Repeating.

© John Degen, 2021

Canadian novelist and poet, Executive Director of The Writers' Union of Canada, believer in the future of the book.