Tuesday, November 29, 2022

Canadian Copyright Term Extension: Is December 30, 2022 Perhaps Premature Proclamation?

(not the recent proclamation)

 During the CUSMA negotiations with the Trump administration, Canada sadly handed over a gratuitous gift that will mostly by far benefit American copyright owners by extending the term of copyright for 20 years. Canada made a bad decision even worse by ignoring the considered legal and policy analyses by the former US Register of Copyrights, Maria Pallante and Canada’s own Minister of Justice, David Lametti, when he was a law professor, explaining that a registration requirement for the additional 20 years would be perfectly acceptable under international law. Such a requirement would have gone a long way to clearing out deadwood and preserving a more vibrant public domain. I pointed all  this and more out last year to the Government in response to the disingenuous consultation that was based upon faulty analysis and that ignored my and many others carefully researched analyses.

Now, to arguably add insult to injury, the Government has proclaimed the new 20-year extension into force very possibly two crucial days earlier than necessary – namely on December 30, 2022 rather than January 1, 2023. That matters a lot because it deprives Canadians of the cohort of material that would have entered the public domain on January 1, 2023 from the creators who died in 1972. Here is the Proclamation:

Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage, under section 281 of the Budget Implementation Act, 2022, No. 1, chapter 10 of the Statutes of Canada, 2022, fixes December 30, 2022 as the day on which Division 16 of Part 5 of that Act comes into force.

Perhaps the most notable Canadian death in 1972 was that of  Lester B. Pearson, the great 14th Prime Minister of Canada and Nobel Peace Prize winner. Historians won’t be happy about waiting another 20 years to gain full access to any of Pearson’s important writings that may be needlessly protected in the meantime.

Here’s what Internet Archive Canada had to say.

For copyright and international law geeks, here’s the CUSMA deal:

For Section H, amendments to Canadian legislation are required to meet the obligations under Article 20.62 and Article 20.67. The CUSMA Implementation Act implements these obligations by amending the Copyright Act. Canada has a transition period of 2.5 years following the date of entry into force of the Agreement to implement the obligation in Article 20.62(a) related to extending Canada’s general term of protection to life of the author plus 70 years (up from plus 50 years).

Here’s where it says we had “2.5 years” to implement this deal from the day that CUSMA came into force:

Article 20.89: Final Provisions

4. With regard to obligations subject to a transition period, Canada shall fully implement its obligations under the provisions of this Chapter no later than the expiration of the relevant time period specified below, which begins on the date of entry into force of this Agreement.

· (a) Article 20.7.2(f) (International Agreements), four years;

· (b) Article 20.44 (Patent Term Adjustment for Unreasonable Granting Authority Delays), 4.5 years; and

· (c) Article 20.62(a) (Term of Protection for Copyright and Related Rights), 2.5 years.

 Here’s where it says that CUSMA came into force on July 1, 2020:

On November 30, 2018, Canada, the United States and Mexico signed a protocol to replace the 1994 North American Free Trade Agreement (NAFTA) with the Canada-United States-Mexico Agreement (CUSMA or Agreement). Under the protocol, NAFTA would be formally replaced by CUSMA upon entry into force of the new Agreement. On December 10, 2019, the Parties agreed to modify certain elements of the Agreement to improve the final outcome in the areas of state-to-state dispute settlement, labour, environment, intellectual property and rules of origin. The Parties subsequently provided their formal notifications of the completion of domestic procedures in April 2020. Under the terms of the protocol, entry into force of CUSMA was set for July 1, 2020. The Canada-United States Free Trade Agreement (CUSFTA), which was suspended upon entry into force of NAFTA, remains suspended until such time as the suspension of CUSFTA is terminated.

Now, the arithmetic appears quite simple. Whether “2.5 years” means 2 years and 6 months or 2 years and 183 days, that would take us to January 1, 2023 and NOT December 30, 2022.

See also the Interpretation Act:

           Calculation of a period of months after or before a specified day

28 Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by

(a) counting forward or backward from the specified day the number of months, without including the month in which that day falls;

(b) excluding the specified day; and

(c) including in the last month counted under paragraph (a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month.

            Construction of year

37 (1) The expression year means any period of twelve consecutive months, except that a reference

(a) to a calendar year means a period of twelve consecutive months commencing on January 1;

(b) to a financial year or fiscal year means, in relation to money provided by Parliament, or the Consolidated Revenue Fund, or the accounts, taxes or finances of Canada, the period beginning on April 1 in one calendar year and ending on March 31 in the next calendar year; and

(c) by number to a Dominical year means the period of twelve consecutive months commencing on January 1 of that Dominical year.

 I don’t profess any great expertise in the machinery of government when it comes to calculations of these kinds of deadlines or proclamations by the Governor in Council. So, if I’m wrong, I would welcome any reasoned correction and be a little more humble and a little less cynical.

But if I’m right about this being a premature proclamation, the Government owes Canadians an overdue explanation. However, given the handling of this term extension issue all along, it would not be prudent to hold one’s breath.



Friday, November 11, 2022

Fair Dealing and the University of Toronto

The University of Toronto has sued a tutoring company, Easy Group Inc., for copyright infringement. Here is the U of T announcement dated May 11, 2022.

Since there is growing interest in this case, I have obtained the pleadings and post them here:

I make no comment on this case at this time, other than that it is clear from the pleadings that fair dealing could be a very major issue.

Speaking of fair dealing, U of T has recently revised its 2012 Fair Dealing Guidelines. Here’s the announcement from October 21, 2022 with links.

Unlike the 2012 Guidelines, I had no involvement in the 2022 revision. Other than that, I make no comment at this time on the 2022 U of T revised Fair Dealing Guidelines.