American NAFTA Inconsistency Re Copyright Term Extension – And Why This Issue Matters Bigly & Involves Billions

(Wikimedia)

The original “fact sheet” of the USA/Mexico deal released on August 27, 2018 by USTR included the following re copyright term:

• Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information.

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On or about August 30, 2018 the “Fact Sheet” wording was changed to the following:

• Set a minimum standard of 75 years of copyright term for sound recordings and other works calculated by date of publication, and life plus 70 years for works calculated based on the life of the author. 

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As of September 4 and 5, 2018 this USTR document says:

• Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 

That’s the same wording as the statement on August 27, 2018. Does this mean that the USA has backed off the life + 70 notion? Hopefully so. Although nobody expects consistency or even competency from the President, one would hope that the USTR could at least provide some semblance of clarity and that presumably yesterday and today’s version is authoritative.

BTW, Canada has successfully stood its ground in the CETA and CPTPP fora on keeping the long-established norm and WIPO/WTO benchmark of life + 50 years. This has been the international norm since the 1948 Revision of the Berne Convention. Although the EU has a requirement of life + 70, Canada successfully resisted any pressure to ratchet its term upwards.

There was a surreptitious attempt to increase Canada’s copyright term in a 2003 bill that was ostensibly about merging the Canada’s national library and archives, but which included a stealth attempt to prolong copyright protection in the name of Canada’s unofficial literary saint, Lucy Maud Montgomery. This was the result of a “mediation” by lawyer and copyright consultant Wanda Noel. I am very pleased with myself for the significant role I played – along with others – in blocking the passage of that aspect of the legislation, which I discussed in a widely read op-ed at the time entitled “Mouse in the House”. The American obsession with a longer copyright term as the result of an extraordinary effort by the Walt Disney organization to extend the Mickey Mouse cash machine as a long as possible should be recalled – “forever less a day” was the ideal term of protection for the US legislation’s proponents a few year's earlier in 1998.

Canada’s only concession to a longer term occurred even more by stealth in the frankly shameful inclusion in the 2015 eve-of-the-election Stephen Harper budget bill of all things of an extension to 70 years for sound recordings. There was no consultation or debate, of course. It was a simple and gratuitous giveaway to the American recording industry through the efforts of its Canadian surrogate Music Canada and a triumph of lobbying over logic and evidence, as I have said.

Canada should continue to stand its ground on this issue, as I’ve said in a CIGIOnline paper.

The costs to Canada of getting this wrong are not only immense in terms of loss of efficient access to knowledge. For example, George Orwell died in 1950. His landmark works have been in the public domain in Canada for 18 years. The Americans are still waiting for his works to enter the public domain. Especially at times like this, it is important not to expand but rather to plug the concept of a “memory hole” as Orwell aptly described it. Memory holes are much beloved by despots and wannabe despots – such as those who “love the poorly educated.”
 

The costs would also be significant financially and would be a tax on research and innovation. Based upon a rigorous New Zealand government study, I have estimated these costs as follows:

The average present value of the cost of 20 year copyright for recorded music and books term extension (which included an estimate for film and television) was estimated by NZ is NZ $505 million, which is CDN $434 million, which adjusted by GDP ratio, would work out to about CDN $4.176 billion.

The average annual cost for NZ is NZ $55 million, which is $CDN 47.3, which adjusted by GDP ratio, would work out to about CDN $454 million.

Hopefully, our highly competent trade negotiators and Minister Freeland will get this right. If they don’t, it will become an extremely controversial issue domestically. Michael Geist and I will ensure that this the case.

I was encouraged to hear an elderly sounding senior named Doris from Saskatchewan on Cross Country checkup last Sunday September 2, 2018   who was concerned explicitly about dairy, copyrights and patents. Yes – she used those words and clearly understood them. She said – twice if I correctly recall – that if Trump didn’t make appropriate concessions, he could just “shove it”.  From the lips of an elderly woman from Saskatchewan That is the Canada that I’m proud of.

HPK