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.

(highlight added)

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. 

(highlight added)

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

The Cost of Canadian Copyright Term Extension Capitulation in the TPP - Estimates Based Upon New Zealand Study

(Wikimedia)

Here’s the important study from New Zealand (recently mentioned by Michael Geist in his “must view” CIGIOnline talk) entitled Economic Modelling on Estimated Effect of Copyright Term Extension on New Zealand Economy.  The study was commissioned in 2009.

Here’s the bottom line from the first page of the NZ summary:

Based on this research, the Government estimated that the average cost to New Zealand from the obligation under TPP to extend New Zealand’s copyright period from 50 to 70 years would average around $55 million per year.

…

The study estimated the total cost for New Zealand of copyright term extension for

books and recorded music in terms net present value (i.e. the equivalent amount of

money that, if invested today, would cover all future costs for every year). The study

considered a time period of 70 years for recorded music (the extended copyright term,

which is generally calculated from time of production) and 110 years for books. The

study estimated a net present value of $208-239 million for recorded music and $263-

300 million for books.

(footnote omitted)

Here are key comparative statistics:

NZ $1.00 = CDN $0.86

NZ GDP = ~ 10.4% of CDN GDP based upon World Bank figures for 2014.

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.

I look forward to reading the whole study in detail. If Canada has anything comparable and credible by way of independent analysis, it would be useful to know. If not, it would useful to know why not. It has been too long since Canada based its copyright policy on actual evidence, such as we saw in the Consumer and Corporate Affairs studies in the early 1980’s, or the Economic Council, Ilsley, and Parker Commissions during the decades before.

Canada needs to look at the costs of copyright term extension very carefully before we decide to sign on to the TPP - or to insist that certain aspects of it be renegotiated. Given that Canada has a new Government, that the current TPP deal was agreed to by a "caretaker" government during an election, and that acceptance of the TPP is anything but assured in the USA, anything is possible. 

HPK

The Kiwi that Could Fly

New Zealand is hardly a major world power. It's population is only 3.9 million and its GDP is only USD $98.9 billion at last report. But it is a highly respected, innovative and fiercely independent common law nation.

Its decision to quickly repeal a "three strikes" internet copyright regime even before it could come into effect is getting a lot of attention, since it could empower other countries to stand up to the lobbying of the USTR and its corporate stakeholders.

For MSM coverage, see the LA Times, CBC, and BillBoard.

The CBC piece, in particular, notes the potential international ramifications.

HK

NZ Government Runs For Cover on Copyright

With friends like this, the RIAA, IFPI and MPAA hardly need enemies. The current NZ Government is clearly running for cover to distance itself from the "three strikes"/no rule of law/absence of due process/industry defined infringement approach of the previous NZ government. It seems prepared - indeed eager - to repeal the controversial s. 92A of its copyright legislation even before it comes into force. As is being reported:

Calls to scrap the controversial new internet copyright law are increasing ahead of the Government's March 27 deadline for a decision on its future.

United Future leader Peter Dunne, the minister of revenue, today compared it with the ill-fated Electoral Finance Act (EFA).

"The EFA arguably started out with good intentions but those became overwhelmed by the impracticalities of the legislation," he said on Radio New Zealand.

"In the end it became a pariah, it literally brought a government down and Parliament has now repealed it. I would have thought we would have learned a lesson."

Mr Dunne is the second government minister to oppose the new law.

(emphasis added)

One can only hope that the "lesson" isn't lost on the UK government, the Canadian government, and others that might be entertaining thoughts of such ill-conceived legislation and lobbying visits from such entertainment industry organizations as CRIA and its lobbyists.

HK

New Zealand "rethink" of copyright law

The New Zealand government's last minute decision to suspend by order in council the coming into effect of its controversial "three strikes" or "graduated response" regime is really quite extraordinary.

Here's an editorial from a leading NZ newspaper entitled "Wise move to rethink internet law".

Here's further recent analysis, here and here.

As I noted on February 23 here:

Prime Minister John Key said today that its implementation date would be pushed back to March 27 to see if the sector can come up with a workable code of practice.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

If one could not be agreed then the section in question would be suspended, he said.

It will be interesting to see if the concerned parties can come up with an "agreed" voluntary code, and if they do, whether those not directly involved in the negotiations such as consumers and academics will buy into it.

Whatever happens is bound to be an instructive lesson for the UK, EC and Canada which are all being heavily lobbied by the same entertainment industry forces to enact excessive and unwise copyright protection that threatens innovation, citizens' right of freedom of expression and even basic access to the indispensable internet.

Such legislative "reforms" will no longer escape scrutiny or political consequences.

There are many reasons for Canada's slowness and deliberation in updating its copyright law - and not all of them are "deliberate." For whatever reason, we are starting to look wiser and wiser as other countries founder and backtrack and the former lead US government proponent of the entertainment industry approach, Bruce Lehman, recants his once strongly held views. Other renowned American experts, such a Bill Patry, also decry the pressures being brought on Canada by the USA through its corporate driven "Orwellian attempt" to inovke "the false use of piracy as a stalking horse for the DMCA."

There are many reasons to update Canada's copyright law. However, false alarms and guaranteed to fail solutions disingenuously advocated by special interest corporate lobbyists in the name of "artists" should not be among those reasons.

PS - the rather revealing comments of the former responsible NZ Minister and former Member of Parliament, Judith Tizard "architect of section 92a of the Copyright Act", on this unfolding fiasco can be seen here. The political lesson here reminds one somewhat of the one that can be learned from the former political career the former Canadian M.P. for Parkdale and former potential cabinet minister, Sarmite Bulte.

HK

Three Strikes Now Into Overtime in NZ

The "three strikes" battle is now into overtime in New Zealand. Suddenly, the odds have turned around from what seemed like a done deal.

The overwhelming protest against the the "three strikes" legislation due to take effect in NZ on February 28, 2009 has caused the Government to delay its implementation.

Prime Minister John Key said today that its implementation date would be pushed back to March 27 to see if the sector can come up with a workable code of practice.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

If one could not be agreed then the section in question would be suspended, he said.

Here's the report from 3News.

While this ain't over 'till it's over, this is already a sobering lesson to any government that thinks it can painlessly implement "maximalist" copyright "made worse in Canada" legislation based upon American law and the whining of American lobbyists or their Canadian proxies.

It is well known that the American entertainment lobby was very unsatisfied with Canada's proposed "notice and notice" regime, one of the few sound, balanced and "made in Canada" aspects of Bill C-61. In fact, this is one of the reasons why the IIPA (basically an emanation of a boutique Washington law and lobbyist firm representing certain major IP trade associations, including the RIAA and MPAA) has accorded Canada the honour of being nominated to the USTR's 301 "Priority Watch List" for 2009, as it has since Canada was promoted from the more plebeian mere "Watch List" in 2007.

The Americans have been trying to plant "three strikes" in NZ and elsewhere (e.g. France, UK) for some time. Let's hope that the Canadian government doesn't give this the time of Minister of International Trade Stockwell Day.

HK

Is Three Strikes on The Way Out?

Controversy continues about New Zealand's ill-conceived three strikes regime that is due to take effect on February 28, 2008. LIANZA, an association that represents 460 public, educational, commercial, industrial, legal and government libraries in New Zealand is joining the chorus demanding delay or revision Their concerns are reported to be mainly:

“As written, every person or organisation that has a website is an ISP, as is every library, school, educational institution, association, government department, company, business and office that provides Internet access to its users or to its staff,” it says.

The second concern for LIANZA is that organisations may have their internet connection terminated over accusations of law breaches, without the allegations being proven.

BTW, it's always good to see emboldened and articulate librarians taking an independent stand and not passively accepting bad policy and bad legislation. Hopefully, this spirit that is alive and well at least in New Zealand and the USA will also come to Canada.

Meanwhile, Michael Geist has pointed to a Times article indicating that the push to three strikes is out in the UK.

As the American and Canadian RIAA and CRIA litigation have shown, information from record companies about alleged so-called piracy is notoriously unreliable. It is inconceivable that they be given any power to unilaterally force the termination of internet service to anyone.

Hopefully, we will see the end of any further movement to "three strikes", would makes IPSs (however they may be defined) liable from all sides, obliterate the presumption of innocence, and put unprecedented and unchecked power into the hands of national record industry organizations , while depriving citizens of the protection of the courts for all practical purposes.

Hopefully, New Zealand will repeal this law before it takes effect.

HK

Three Strikes Regime Strikes New Zealand

It seems that the Labour government of New Zealand has succumbed to entertainment industry pressure to enact a "three strikes" regime that would require ISPs to disconnect "three-peat" offenders.

The new provision, which comes into effect on February 29, 2009, begins thus:

“92A Internet service provider must have policy for terminating
accounts of repeat infringers
“(1) An Internet service provider must adopt and reasonably implement
a policy that provides for termination, in appropriate circumstances,
of the account with that Internet service provider
of a repeat infringer.
“(2) In subsection (1), repeat infringer means a person who repeatedly
infringes the copyright in a work by using 1 or more
of the Internet services of the Internet service provider to do a
restricted act without the consent of the copyright owner.

Here's the whole legislation.

The new provisions are being panned by the NZ media here and here etc. in reportage as a "lose - lose" proposition both for their unsound policy (presumption of innocence, anyone?) and here in an editorial concerning the political process that was used to get them enacted.

HK

PS - more today on the controversy here, including the role of IFPI (international counterpart to RIAA and CRIA) and the push back and request for delay of implementation by the ISPs, including their fear of suits from customers.

PS - In a pattern becoming increasingly familiar, there is evidence of much division and dissension on the "creator" and collective side.

New Zealand Considers Allowing Satire and Parody

New Zealand is now considering an explicit provision in its copyright legislation to allow for satire and parody.

This follows a recent amendment in Australia.

Section 41(A) of the Australian Copyright Act as amended in 2006 provides that:

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

The Gowers report in the UK recommended such an amendment. The US Supreme Court confirmed in the 1994 Acuff-Rose "Pretty Woman" case that a right of parody exists under the fair use provisions in American law.

That leaves Canada alone without an actual satire or parody right or a willingness to seriously consider it amongst the major common law jurisdictions to which we normally compare ourselves. Even France, where copyright is taken very seriously, has such a right.

It is understood that the main opposition to such a right comes from certain increasingly isolated voices in the Canadian music industry, who have managed to keep the issue off the table in the last two bills.

How the denial of such a right could possibly hurt composers or music publishers is difficult to understand. There is no evidence that such a right has caused any harm in the USA in the 14 years since the Acuff-Rose decision. Indeed, the satire and parody genre has been indispensable to Western art and culture at least since the time of Aristophanes in Athens in the fifth century BC.

I guess that things take a while to percolate through in Canada.

HK