Let’s Listen to the Former American Register of Copyrights about How to Deal with the Last 20 Years of the Extended Life + 70 Copyright Term

 

As the absurd and inexcusably short deadline of March 12, 2021 to comment on the Government of Canada’s  very disappointing consultation document on how to implement the CUSMA term extension obligation looms, interested parties may wish to note the following.

Maria Pallante is the former Register of Copyrights in the US Government. When the Register speaks, the world listens. She is now  the president and chief executive officer of the Association of American Publishers, an organization not known to embrace the public domain. Nobody would ever suggest that Ms. Pallante is or ever has been a copyleft or user friendly person. Nor would anyone question her distinguished qualifications and expertise.

 Here is what Ms. Pallante had to say in 2013 about the final 20 years of the life + 70 concept in a very important paper she published while still Register of Copyrights.

 

Perhaps the next great copyright act could take a new approach to term, not for

the purpose of amending it downward, but for the purpose of injecting some

balance into the equation. More specifically, perhaps the law could 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.¹⁰⁷ And if they did not, the works would enter the public domain.¹⁰⁸

 

107. If U.S. history with respect to renewal registration of copyright is any indication, very few copyright owners—in this context, heirs and successors in interest rather than the author herself—will actually do so. See U.S. COPYRIGHT OFFICE, STUDY NO. 31, supra note 9, at 220 (stating that, of works registered in 1931–1932, one third of musical compositions, 7% of books and 11% of periodicals had been renewed). In contrast, a 2007 study by Stanford University found that an average of 30.8% of

books published between 1923 and 1963 had their copyright registration renewed. See STANFORD UNIV. LIBRARIES & ACADEMIC INFO. RES., ’23–’64 IMPRINT COPYRIGHT DETERMINATOR: FINAL REPORT 4 (2007), available at http://collections.stanford.edu/copyrightrenewals/files/ FinalNarrative_

18Sept07.pdf.

108. This should not, as far as I can see, 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. See Berne Convention for the Protection of Literary and Artistic Works, supra note 2, art. 7. At the same time, copyright owners who choose to assert their continued interests would have the full benefit of the additional twenty years, subject to the requirement of additional registration.

(highlight added)

The Columbia Journal of Law & the Arts, Volume 36, No. 3 (2013) https://www.copyright.gov/docs/next_great_copyright_act.pdf  p. 337

I wonder whether whoever gave the arguably irresponsible opinion to the responsible Canadian Ministers that requiring registration for the final 20 years of a life + 70 terms  “raises serious questions” re Canada’s international obligations was aware of Ms. Pallante’s position that registration for the final 20 years was  apparently just fine under international law. Does whoever gave this opinion to Canadian Ministers know more than Ms. Pallante?

 The Government bureaucrats on the recent very unhelpful consultation call would not identify who was responsible for the very unfortunate consultation document, other than that is was both departments. Maybe it’s ATIP time for someone with a lot of patience and perseverance.

 And maybe, for once, Canada should do as the Americans say, though not as they do.

 And, BTW, the American’s have been a scofflaw flouting international copyright law and the WTO and the Berne Convention for the last two decades. Maybe Canada can learn from this as well…

 Finally, anyone who thinks that these Government  proposals will have any benefit to anyone other than Access Copyright and perhaps other collectives and not be a lifeline and/or a make work project for the Copyright Board is either naïve or willfully blind.

 BTW, h/t Sean Flynn and Ariel Katz.

HPK

22nd Example of How Canadian Copyright Law is Stronger than US - and Another Possible US Treaty Violation

I can add a new 22nd example to my list of 21 ways in which Canadian copyright law is stroner than that of the USA.

James A. Trigg and Joseph Petersen at Kilpatrick, Stockton have written about a recent decision of a US Federal Court Judge William Pauley III in the highly regarded Southern District of New York Federal Court. The decision in Elsevier B.V. v. UnitedHealth Group, Inc., No, 9 Civ. 2124 (S.D.N.Y. January, 14, 2010) is here.

This decision confirms that, pursuant to 17 USC §412, there can be no recovery of statutory damages or attorney's fees for infringed foreign copyrights unless there has been timely registration in the US Copyright Office. That's no different than for U.S. Copyrights. But one might have thought that the USA would not impose formalities on foreigners, because the Berne Convention prohibits this. The Judge ruled that the Berne Convention didn't help here because it is not self executing.

None of this is surprising or even new. And the result treats foreigners no worse in this respect than owners of American copyright.

If this seems like déja vu all over again, it is - because there was an important similar ruling in the YouTube litigaiton by another SDNY judge, Louis Stanton, last year which I blogged about here.

But it highlights an area in which US law is MUCH weaker than Canadian law. Canada has statutory damages and has a registration system. But there is no sine qua non of prior registration in order to be eligible for statutory damages. There are significant advantages to timely registration in Canada in terms of proving the ownership and subsistence of copyright and entitlement to damages when the defendant proves that, at the date of the infringement, the defendant was not aware and had no reasonable ground for suspecting that copyright subsisted in the work or other subject-matter in question.bBut there is nothing resembling the harsh disadvantage of failure to register in the USA.

On a policy and political level, this shows once again the “do as we say, not as we do” approach of the USA when it preaches that other countries don't provide "adequate and effective" enforcement. On this issue, Canada once again comes out way ahead.

The even more interesting question is whether there is a Berne Treaty violation here - in terms of the imposition of mandatory formalities (i.e. registration) in order to achieve “adequate and effective” protection, as the Americans like to call it.

Article 5(2) of the Berne Convention provides that:

The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

The decision provides a short but very discussion of the legislative history of §412 and the discussion of the Berne Convention. The U.S. Senate chose NOT to amend the section in order to relieve foreigners of these formality requirements because it concluded that this was not necessary. Elsivier argued that this decision by the Senate was wrong and that §412 conflicts with Article 5(2) of Berne. But the Judge did not rule on that argument, given his ruling that the Berne Convention is not self-executing and that it therefore doesn't apply.

It should be noted that USA registration, while not rocket science, can be far more difficult and expensive in terms of legal fees than Canadian registration. One has to choose the right form (not always obvious) and there is examination involved. The process is slow and the outcome is not always assured, given that the examination process is quite serious. In contrast, the Canadian system is much simpler and there is no examination. Indeed, one can't even deposit the work.

Let's see if anyone in another country is sufficiently riled about this to bring a WTO complaint, as was done successfully against the USA in the notorious §110 case about the exemption for performances in countless small establishments such as bars, restaurants and stores.

Lessig on Orphan Works

Larry Lessig is suggesting in the NY Times today that:

Following the model of patent law, Congress should require a copyright owner to register a work after an initial and generous term of automatic and full protection.

For 14 years, a copyright owner would need to do nothing to receive the full protection of copyright law. But after 14 years, to receive full protection, the owner would have to take the minimal step of registering the work with an approved, privately managed and competitive registry, and of paying the copyright office $1.

This rule would not apply to foreign works, because it is unfair and illegal to burden foreign rights-holders with these formalities. It would not apply, immediately at least, to work created between 1978 and today. And it would apply to photographs or other difficult-to-register works only when the technology exists to develop reliable and simple registration databases that would make searching for the copyright owners of visual works an easy task.

Larry’s proposal can’t apply to foreign works because of the “no formalities” requirement of the Berne Convention (Article 5).

Assuming that it could apply to American works (i.e. giving less protection to American works than foreign works), there would still be some big problems, also arising from the national treatment doctrine under Article 5. For example, what if the “country of origin” under the Berne Convention is not clear? In many cases, it will be unclear - particularly if the author’s identity isn’t known, or if it simultaneously published in several countries.

It will also be unclear in many instances when the 14 years starts to run.

Above all, what if someone needs to copy the work before the 14 year period? Would Larry’s suggestion not, in effect, make that even more difficult than now?

Anyway, the idea of a parallel registration system that would require American copyright owners to register before 14 years have expired is likely to be totally unacceptable to vast ranges of corporate interests, and even individual song writers and others who have come to believe that “no formalities” means “no formalities.”

HK