My Response to Consultation on Canadian Copyright Term Extension

I submitted my personal comments in response to the Canadian Government's problematic consultation on How to Implement an extended term of Copyright Protection in Canada. 

Here's my submission.

Here's my bottom line of recommendations:

a.      Adopt the suggestion by former US Register of Copyrights Maria Pallante for a registration regime for the final twenty years of a life + 70 term;

b.     Establish a full and proper consultation over a period of at least six months following publication of the proposed details – and ideally the wording of any legislation and regulations – implementing such a regime;

c.      Insist on decoupling this consultation from the clearly vapor ware and diversionary announcement of parallel consultations involving the “internet of things” and “online intermediaries”;

d.     Veto any option that would involve extended collective licensing, involvement of collectives and/or involvement of the Copyright Board in any manner; and,

e.      Recognize that there is no need for undue haste to comply with the apparent deadline of December 31, 2022 when the consequences of improvident compliance are so high and the risk of potential non-compliance may be manageable and perhaps even minimal.

HPK

February 25 2021 Online discussion about CDN Government Consultation paper on how to implement an extended general term of copyright protection in Canada

The government held a one-hour online discussion about its Consultation paper on how to implement an extended general term of copyright protection in Canada.

Responses are due on March 12, 2021. That’s not a misprint.

There were lots of questions but very few if any specific answers. My questions were as follows and in my personal capacity:

•  Why the extremely short one month deadline for comments on the consultation paper?
•  Who is the principal author of this paper?
•  Why has the registration proposal for the 20-year extension recommended by INDU and several experts been effectively taken off the table?
•  What are the resource/cost implications for the Copyright Board of the various options?

Here are some takeaways from today’s session:

·        The Government seems to have decided in advance that requiring registration and presumably some fee for owners to take advantage of the extra 20 years “raises serious questions” re Canada’s international obligations. That is frankly highly debatable. It would be interesting to see whatever opinion was responsible for the Government’s clear predilection to take this off the table.  BTW, this was the solution proposed by INDU, and several experts – including myself.

·        I asked who was the principal author of the consultation paper – but was told only that it was both departments.

·        In response to several questions about the short timeline to respond, the repeated answer was that there were other consultations also coming up soon on the “internet of things” and “online intermediaries.” I asked what these were even about and why these issues were so urgent, when we are facing a deadline of the end of 2022 to implement a CUSMA obligation that could potentially cost Canadians Billions of $$$ and negatively affect access to knowledge, innovation, etc.  No specific answer.

·        There was confirmation that some of the options could have resource/cost implications for the Copyright Board.  Handing any of this over to the Copyright Board? What could possibly go wrong? I didn’t ask that question. 

        The last point for the moment but not the least - the Government officials indicated that any legislation might not be a standalone bill. Does this mean another middle of the night sneak attack in an omnibus bill with no possibility of meaningful hearings or debate? Sadly, the Liberals have broken a campaign promise and taken up and perfected the Stephen Harper tradition of omnibus bills that include stealth inclusion of copyright provisions in omnibus bills not subject to normal scrutiny, such as Stephen Harper's frankly shameful inclusion in the 2015 eve-of-the-election 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 previously said.

HPK

Copyright Term Extension - March 12 2021 Deadline to Respond to Very Disappointing Document

 ICYMI, see here:

https://www.ic.gc.ca/eic/site/693.nsf/vwapj/consultation-implement-extended-term-copyright-protection-Canada-en.pdf/$file/consultation-implement-extended-term-copyright-protection-Canada-en.pdf

Deadline to respond is March 12. 2021. There is no conceivable explanation  for such a short deadline given that:

• The disappointing and very questionable content of the document requires significant expertise in domestic and international copyright and treaty law in order to to adequately respond
• Those few who have such expertise are likely to be very busy with leave to intervene applications in the Supreme Court of Canada in the Access v. York case due a few days earlier
• There is no need to rush this, given that Canada has until the end of 2022 to implement our unfortunate capitulation in CUSMA

As always, this is not legal advice. But, from a political standpoint, folks may wish to immediately protest the inexplicably short consultation deadline.

HPK

Welcome, Mr. Walt Disney, to the Canadian Public Domain

(Disney in 1946 - Wikipedia)

Today is public domain day in Canada for the works of any sole or last surviving joint author who died in 1966. Canada has a copyright term of life + 50 years.

Walt Disney, the person, died on December 15, 1966. This means that any works of which he may have been the sole or last surviving joint author are now in the public domain in Canada as of January 1, 2017. It will be interesting to see if there are such works. In Canada, there can sometimes be legal and factual complexity and uncertainty in the determination of authorship and the copyright term of films.

As anyone who knows anything about copyright law knows, it was The Walt Disney Company that pushed the US Congress and the Clinton administration to extend the American copyright term to life + 70 years in 1998 through the Copyright Term Extension Act, sometimes referred to as the Mickey Mouse Protection Act.

There are no credible policy reasons to extend the copyright term beyond that of life + plus 50 years. However, there are billions of reasons in the form of dollars for shareholders in legacy copyright-based companies, such as Disney, to do so. Not only will revenue streams be extended – but term extension sets up effective barriers or delays to entry for anyone who dares to emulate Disney’s business model that was built upon exploitation and reliance upon the then much more recent entry of works into the public domain. Here is an article in Forbes by Derek Khanna entitled 50 Disney Movies Based On The Public Domain.

Indeed, those who believe in innovation should strongly oppose term extension. There is no substantial incentive value to any living creator – and obviously no incentive value whatsoever to dead creators – involved in the theoretical possibility of windfall revenues for great-great grandchildren and even beyond. Indeed, excessively effective copyright protection can serve as a disincentive to creativity. See F.M. Scherer’s brilliant book Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries.  He suggests that “In the case of Verdi, greater remuneration though full exploitation of the copyright system led perceptibly to a lessening of composing effort.” (p. 194). Verdi, of course, is high if not on top of the pantheon of opera composers. Copyright is not the only and arguably far from the most efficient tool to incentivize literary, dramatic, musical and artistic creativity.

Canada, China and many other countries have not followed Disney’s company’s wish to extend the copyright term to life + 70 years. I take some credit for stopping a stealth move by the Canadian Government to extend the copyright term in 2003. Here’s my “Mouse in the House” National Post op-ed that played a significant role in that resistance. Canada, to its credit, held the line on the life + 50 term in CETA – even though the EU had long since gone to life + 70 even before the Americans. However, the now apparently dead TPP (which Canada had signed) would have extended the term to life + 70 in Canada.

If NAFTA is really going to be reopened as Trump threatens, look for American pressure as focussed and amplified through the usual Canadian lobbyists to escalate the Canadian copyright term to life + 70.  Hopefully, Canada will stand its ground.  The previous Government shamefully snuck through a 20 year term extension in 2015 for sound recordings in an omnibus budget bill at the behest of lobbyists for the American recording industry. I wrote the following on November 17, 2015 based upon a recent New Zealand government study:

Assuming that the New Zealand study methodology for calculation of the cost of a 20 year copyright term extension were to be more or less applicable to Canada and that the results would be more or less proportional to the difference in GDP, here are some admittedly “back of the envelope” calculations:

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.

Other notable creators who died in 1966 include:

•  Lenny Bruce, comedian
•  Alberto Giacometti, painter and sculptor
•  Evelyn Waugh, author
•  C.S. Forester, author
•  Buster Keaton, actor and director

Canada welcomes them and Mr. Walt Disney himself to the public domain in Canada.

HPK

Trans-Pacific Partnership ("TPP") Agreement - Consultation Deadline of Valentine's Day February 14, 2011 - Towards "Copyright Forever" and Higher Prices Now

 

World Copyright Terms (created by Balfour Smith of Duke University)

The Canadian government is asking for submissions on the proposed TPP agreement by February 14, 2012.

One of the identified items for consultation is:

• Views and experiences with the protection of intellectual property rights. 

According to Sean Flynn of American University's Washington College of law, preliminary analysis of "leaked" documents indicate that the USA will be seeking:

• a life + 70 year copyright term, 
• to abandon the access to medicines flexibilities of the 2007 New Trade Deal and the U.S.-Peru Free Trade Agreement
• to create a new international legal requirement to provide copyright owners an exclusive right to block parallel trade of  copyrighted works.

See Sean Flynn's analysis here and here. If Sean is right, the USA will be seeking to impose a regime that goes far beyond  Canada's NAFTA and WTO obligations and even way beyond still controversial IP and trade agreements not yet ratified, such as the 1996 WIPO treaties and ACTA.

This sounds like policy shopping on a grand scale.

The DFAIT document is available here.

Remember - the deadline for comments if February 14, 2012. You may also wish to to include with your submission a  lovely Valentine, such as the one below.

Wikipedia

 

Don't forget to send in your view by Valentine's Day February 14, 2011.

Tell the Government of Canada what you think about extending the copyright term for another 20 years to life + 70. That's a very long time. For example, the iconic Canadian writer, scholar, academic, economist, comedian and genius-about -town (small and large) Stephen Leacock died in 1944. If this regime applied to him, his works would be locked up by a publisher - likely a multinational - or an estate of remote descendants who did nothing to create these works - until 2014. Would such a term extension benefit anyone, except some foreign corporation, some clever copyright lawyers, some distant descendants, or others who have no obvious claim to monopoly entitlement?

Ask whether this would provide any incentive for the next Glenn Gould, Leonard Cohen, Robert LePage - or, indeed, Stephen Leacock. Would such a regime have made Leacock any more clever or productive when he was alive? On the other hand, what are the costs to scholarship, culture, and nourishment for new creators by locking away the rights to Leacock from the public domain for another 20 years?

Or whether it's just a question of sending even more money to Disney and other mostly American and European copyright owners and exploiters of the rights of long dead creators.

Does Canada want to join the American campaign towards "copyright forever", which would result in the stagnation of creativity?

Do you want to see Canada being told by other countries (that really means, effectively, the USA) how to deal with TPMs' and what type of SOPA-like provisions we would be expected - make that "required" - to enact?

By the way, if Sony Bono's zealous widow, Congresswoman Mary Bono, had gotten her way, we would indeed have seen "copyright forever" in the USA:

Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. ... As you know, there is also [Motion Picture Association of America president] Jack Valenti's proposal for the term to last forever less one day. Perhaps the Committee may look at that next Congress.

The provision mentioned above that would enable copyright owners to prohibit parallel imports would also require a major change in Canadian law. Parallel imports are legitimate products, such as CDs or  DVDs, manufactured abroad with the consent of the rights owner in the country of manufacture. Blocking such imports into Canada would eliminate an important element of competition and result in immediate price discrimination and higher consumer prices. I fought this battle on behalf of the Retail Council in the Supreme Court of Canada in the Kraft case, where my client's submissions were the basis of the prevailing reasons for judgment.

Send your views here:

consultations@ international.gc.ca 

HPK 

 

Salinger Sues for Sequel + Sibelius

J. D. Salinger, now 90 years old, sues - again. The remarkably reclusive, litigious and non-prolific (as far we know from publications) writer has sued over the expected publication in the USA of an "unauthorized sequel" called 60 Years Later: Coming Through the Rye, written by someone who the WSJ calls "a purported American living in Sweden named John David California." There's a brief discussion of the background here on the WSJ Blog, along with a good discussion and interview with a NYC copyright lawyer about sequels, parodies, and the possibility of copyright in a character.

Here's the complaint.

Salinger and Jean Sibelius are examples of creators who enjoyed great success at a relatively early age and became unable or unwilling to follow up to any extent to satisfy the public's appetite for their creativity. That's no reason to shorten the term of copyright - but these are important and prominent examples of why longer terms and stronger rights do not necessarily provide an incentive to create - and in the case of some individuals with substantial incomes from early success may paradoxically provide precisely the exact opposite by, in effect, enabling very early and comfortable retirement.

Sibelius in 1889

BTW, the works of Sibelius (1865-1957) will be protected in the EU until the end of 2027. In the USA, some of his work may be protected that long if properly renewed, although anything published before 1923 in the USA would not be. He wrote no major works after his Symphony No. 7 in C major for orchestra, Op. 105 (1924). Not that it's relevant, but his work was stylistically anchored to the 19th century and essentially immune to 20th century influence. His work entered the public domain in Canada on January 1, 2008, along with others as chronicled yearly by Maestro McLean of the Public Domain.

HK

Copyright Term Extension Notwithstanding the Evidence?

Concerning term extension of sound recordings, the UK government as per Minister David Lammy has decided to ignore the Gowers Report that it had commissioned. This follows the volte face of the European Commission, which has has likewise decided to ignore the independent analysis it had commissioned from Prof. Bernt Hugenholtz et al. Once again, lobbying trumps logic.

An impressive who's who of UK academics has signed an open letter dated February 24, 2009 to Minister Lammy challenging him to present "any evidence" on which the Government's policy reversal is based. This should bevery interesting because virtually all of the credible and independent evidence points the other way.

The letter concludes:

There has been some talk of 'moral arguments' for extension but it is hard to discern a compelling 'moral' case for a proposal whose prime effect is to benefit major label shareholders and a few, already highly successful, artists while imposing significantly greater costs on new creators, the general listening public and the custodians of our cultural heritage.

As Gowers concluded, and the Government has until now consistently reaffirmed, policy-making in this area should be evidence-based and designed to promote the broader welfare of society as a whole. Policies that appear to reflect nothing more than lobbying will only perpetuate the "marked lack of public legitimacy" which the Gowers report lamented — and discourage those who wish to contribute constructively to future Government policy-making in these areas. We therefore call on the Government to present any evidence that has led to this change of policy.

(emphasis added)

And by the way, if a group of academics in the UK can get together and sign a joint open letter on an important public policy issue, as we also sometimes see in the USA, why has this never happened in Canada?

HK


PS: Here's a video of Becky Hogge of Open Rights Group addressing EU MEPs:


Becky Hogge: Speech at Sound Copyright conference in the EU Parliament 27.01.09 from Open Rights Group on Vimeo.

Video on Proposed Term Extension of Sound Recordings in EU

Here's an outstanding video from the Open Rights Group on the European Commission's determination to ignore all the reliable evidence (including the work it itself commissioned from Bernt Hugenholtz et al) and push for term extension of sound recordings to 95 years. According to ORG, this would create a windfall for record companies and potentially provide negligible help and even harm to ordinary working session musicians - all at great cost to economic cost to consumers and a considerable encroachment on the public domain. There are lots of specific numbers here...

HK

Gowers on UK Term Extension Capitulation

Mr. Gowers is not impressed by the British Government's capitulation to the record industry on term extension for sound recordings:

Politicians often do and say silly things when they come into contact with celebrities.

So it was last Thursday when a star-struck Andy Burnham, Britain’s secretary of state for Culture, Media and Sport, showed up for a speech and photo-opportunity with the former lead singer of the Undertones, a punk-pop combo of the 1970s. In addition to the usual pleasantries about Britain’s creative industries, Mr Burnham set out a novel argument about the law of copyright protecting musicians’ work.

Here's the whole article in today's Financial Times.

UPDATE & PS:

The UK secretary, Mr. Burnham, replies here.

HK

Troubles in Brussels

The often playful IPKat has a very serious and gloomy report on Bernt Hugenhotltz' open letter to Dr. Jose Manuel Barroso, President of the European Commission.

Prof. Hugenholtz is understandably concerned that the Commission has ignored the work that it had commissioned from his exemplary institute, for example in the course of its controversial recommendation in July to extend the term of protection for sound recordings to 95 years. He states:

As you are certainly aware, one of the aims of the `Better Regulation' policy that is part of the Lisbon agenda is to increase the transparency of the EU legislative process. By wilfully ignoring scientific analysis and evidence that was made available to the Commission upon its own initiative, the Commission's recent Intellectual Property package does not live up to this ambition. Indeed, the Commission's obscuration of the IViR studies and its failure to confront the critical arguments made therein seem to reveal an intention to mislead the Council and the Parliament, as well as the citizens of the European Union.

The power of lobbyists to override the advice of professional public servants and academics of immense integrity and independence, such as Bernt Hugenholtz, is indeed very regrettable and is, regrettably, not restricted to Europe.

Prof. Hugenholtz is to be commended for standing up for the work of his colleagues and for matters of principle at a time when principled and professional analysis in IP by governments seems increasingly like a quaint memory.

HK