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.
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.
the next great copyright act could take a new approach to term, not for
purpose of amending it downward, but for the purpose of injecting some
into the equation. More specifically, perhaps the law could shift the burden
the last twenty years from the user to the copyright owner, so that at least in
instances, copyright owners would have to assert their continued interest in
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
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
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/
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.
Journal of Law & the Arts, Volume 36, No. 3 (2013) https://www.copyright.gov/docs/next_great_copyright_act.pdf
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
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.