OTTAWA | January 27, 2012

Trading copyright

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Opening our borders to free trade with countries across the Pacific may extend copyright protection for authors and artists in Canada.

Last November, Prime Minister Stephen Harper announced Canada's intention to be a part of the Trans-Pacific Partnership (TPP). Negotiations for the treaty have reached the 11th round, and while official documents haven't surfaced yet the American NGO Knowledge Economy International released a leaked draft of the copyright chapter last year.

 
In Canada songs remain under copyright for 50 years after they're released or broadcasted. The leaked draft about copyright in the Trans-Pacific Partnership indicates that members are negotiating a term 45 years longer.  

Under Canadian law, copyright terms are 20 years shorter than what's being negotiated in the TPP, according to the leaked draft. The Copyright Act of Canada grants ownership rights of literary works 50 years after the death of the author. For sounds, recordings, performances and videos, the term is 50 years after the author releases, broadcasts, or performs the original creation. TPP members are negotiating a 70 year plus-death-of-the-author term for literary works, and a 95-year-after-publication term for other artistic works.

This is one of the industries where Canada could face challenges if it is accepted as a member of the TPP.  But becoming part of the deal is not a given yet.

"The biggest challenge right now is actually convincing current members of the Trans-Pacific Partnership to accept Canada's participation in the negotiation," says Patrick Leblond, an associate professor at the Graduate School of Public and International Affairs at the University of Ottawa.

Despite uncertainty, the government is already asking Canadians to submit their recommendations. Michael Geist, a law professor at the University of Ottawa who researches intellectual property, has encouraged his blog readers to speak against extending copyright terms. The process is long, he acknowledges, but the consultation round is a first step and Canadians should be active in expressing their concerns.
    
Remixed reading

Protecting copyright is important because "it helps to increase access to and enhances the enjoyment of culture, knowledge, and entertainment all over the world," says the World Intellectual Property Organization (WIPO) website.

Copyright ensures authors and their next of kin receive profit from their original work.This encourages the creation of new works, says John Degen, a Canadian novelist and literature officer at the Ontario Arts Council. But determining a reasonable length for copyright has been the topic of debate before. Changes in technology should be considered when dealing with copyright terms, Degen adds.

Ernest Hemingway's works entered the Canadian public domain at the beginning of the year.

"In a digital age when everyone can publish anything by themselves without an intermediary, there’s really no telling for how long something will be valuable or when it will become valuable," he says.

But a term extension doesn't just cover new creations. It covers all works created to date. For example, if Canada were to extend copyright for 20 years, Ernest Hemingway's books, which entered the Canadian public domain at the beginning of the year, would be locked under copyright until 2032. 

"For all the works that have been already created there is no incentive," he says. "Locking them down for 20 more years only means that they would be less accessible."

New versions of original works are often created after copyright expires. Take, for example, American author Seth Grahame-Smith's modern twist on Jane Austen's classic novel, the result of which is Pride and Prejudice and Zombies. If a Canadian writer wanted to add robots to Hemingway's For Whom the Bell Tolls there would be no need to pay copyright dues under the current system.

But if a writer wanted to 'remix' or 'mash-up' a work protected by an extension of copyright protection, it would still be possible – only payments for ownership rights would come into play.

“It’s a false argument to say that just because something is not available for me to use for free then it’s not available to me at all,” says Degen.

In this case, It would be up to the copyright owner to accept or decline the new version of the work. A term extension, acknowledges Degen, could constrain authors looking to create their own versions of original works. 
        
Twenty years of difference

As Canadians debate the best option for our culture, the government continues to negotiate copyright laws in international trade deals.

The 20-year difference could be a disadvantage when Canada sits to negotiate. Based on the Berne Convention, an international agreement for copyright laws, the Canadian Copyright law meets the minimum standard of 50 years after death of the author or publication. But in most European countries, as well as in the United States, copyright terms have already been extended by 20 years.

"If this is the way the world is going, it makes us uncompetitive not to go in that direction as well," says Degen.

In the context of the Trans-Pacific Partnership, copyright issues are not as significant as other Canadian interests, such as the supply management system of dairy products and poultry. Agriculture, says Leblond, will certainly play a more prominent role than copyright. Geist is concerned that if other issues become more prominent, the government may be more willing to give in to the demands to change copyright laws.

"It's important for Canadians that are concerned about extending the term of copyright that this at least goes on the record," says Geist. “The government won't know it is a public concern unless Canadians speak out.”

Copyright terms around the world

Copyright duration is usually calculated from the date of the author’s death. Here’s a look at the copyright terms of original literary, dramatic, musical, or artistic works around the world.

Trans-Pacific Partnership signatories

  • Brunei:  Life of the author + 50 years
  • Chile: Life of the author + 70 years
  • New Zealand: Life of the author + 50 years
  • Singapore: Life of the author + 50 years

Trans-Pacific Partnership negotiating countries

  • Australia: Life of the author + 70 years
  • Malaysia: Life of the author + 50 years
  • Peru: Life of the author + 70 years
  • United States:  Copyright term based on date of publication and varies
  • Vietnam: Signatory of the Berne convention stipulating life of the author + 50 years

Other

  • Canada: Life of the author + 50 years
  • EU: Life of the author + 70 years
  • UK: Life of the author + 70 years

Source: Collection of National Copyright Laws, UNESCO

Interesting facts about copyright
  • France extends copyright an additional 30 years, making the copyright term 100 years, if the author died serving France.
  • Perhaps the world’s longest regular copyright term is in Mexico, where the copyright term was extended in 2003 to the life of the author plus 100 years.
  • When the author of Peter Pan, J. M. Barrie, died in 1937, he left the copyright of his famous book to the Hospital for Sick Children in London, UK. Despite the expiration of the play’s copyright term around the world, the UK’s 1988 amendment to its copyright act ensures that the hospital will receive performance and publication royalties within the UK indefinitely.
  • The popular 'mash-up' Pride and Prejudice and Zombies by Seth Grahame-Smith combines Jane Austen’s classic with zombie fiction and reached #3 on the New York Times Bestseller list in 2009.
  • Project Gutenburg is the oldest digital library and an extensive source of free ebooks. It’s founder, Michael S. Hart began digitizing texts in the public domain in 1971. The top e-book download of the past 30 days? The Kama Sutra of Vatsyayana by Vatsyanyana.