The Canadian government launched a consultation related to the upcoming extension of the copyright term in Canada (from life of the author plus 50 years to life of the author plus 70), allowing a month for Canadians to provide comment on a fait accompli. Thankfully, the deadline for comment was extended to March 31.
It’s a fait accompli because the appeal did not ask for thoughts on the extension itself, but on how to implement it. Thanks to the new Canada-US-Mexico Agreement (CUSMA – the replacement for NAFTA), we’ve been forced to make this change. This move is typical for many legislative changes related to intellectual property: an international treaty, undemocratically negotiated, results in nation-states being forced to implement changes that are not up for public debate (the Trans-Pacific Partnership is another recent example).
Canada’s consultation focused on one central area: what to do with orphaned and out-of-commerce works. An orphaned work is one that still falls under copyright, but whose creator is unknown or cannot be located (meaning that it’s impossible to get permission to use the work). An out-of-commerce work is one whose rights holder is known, but cannot be used effectively because it’s not possible to purchase or license a copy (for example, an out-of-print book or a very old piece of software that is no longer for sale). The paper also discussed other grey areas in the Copyright Act, such as unpublished works.
Like many, I and my colleague Michael McNally have submitted comments for the consultation. Though the ideas will be ignored, we felt it important to highlight the absurdity of extending the copyright term for the benefit of dead people: it’s a move that serves no-one but corporate copyright holders, whose motive is a desire to continue to profit from work they didn’t create (we call this rent seeking).
Our submission — which is admittedly quite sassy — is available online. I’m sharing it for two reasons:
- There is no guarantee that Innovation, Science, and Economic Development (ISED) Canada will share all submissions publicly, which provides a clever means for them to share “what we wanted to hear” instead of “what we heard”
- In an act of living the model for which we advocate, we have placed our submission into the public domain with a Creative Commons Zero licence
There are other submissions that are more kind to the process, and I want to point those out:
- Creative Commons issued a statement asking the government to embrace the benefits of the public domain, the intellectual commons, and open licensing
- The Canadian Association of Research Libraries (CARL) and the Canadian Federation of Library Associations (CFLA) submitted a detailed joint document asking for many of the same things we did, using more robust arguments and data
It will most likely be impossible to stop the term extension, thanks to CUSMA. Hopefully, a torrent of submissions that comment on the pointlessness of the extension will remind the government of the importance of this topic for Canadians – see Meera Nair’s commentary and Michael Geist’s commentary for examples. There is still hope that the Copyright Act will be amended in ways that lower the barriers of access to orphaned, out-of-commerce, and unpublished works, but I fear that – like the extension itself – the die has already been cast.
The feature image for this post is by Kyle Glenn on Unsplash
