Monthly Archives: March 2020

Copyright under the new USMCA trade deal

Canada has just ratified a new trade deal with the United States and Mexico, replacing the old North American free-trade agreement (NAFTA). The general line is that the new U.S.-Mexico-Canada pact (USMCA) will extend the copyright on books (and much else) by twenty years. Currently in Canada, a book comes out of copyright fifty years after the death of the author. The new deal will change that to seventy years.

But must it do so? I think we have an alternative, entirely consistent with the wording of the act. It’s a complicated subject, but I’ll make the argument as painless as I can.

The crucial passage in USMCA is Article 20.62. It requires each country to calculate the term of protection for “a work, performance, or phonogram” (a phonogram is essentially a sound recording) this way:

“(a) on the basis of the life of a natural person, the term shall be not less than the life of the author and 70 years after the author’s death; and

“(b) on a basis other than the life of a natural person, the term shall be:

“(i) not less than 75 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or

“(ii) failing such authorized publication with 25 years from the creation of the work, performance or phonogram, not less than 70 years from the end of the calendar year of the creation of the work, performance, or phonogram.”

My reading of this section is that it gives us two ways to determine the duration of copyright. With respect to published written works – which is what I will focus on here – Canada could say that it will protect an author’s copyright for 75 years from the date of authorized publication, at which point the copyright would expire.

Why should it change one system for another? Well, a couple of reasons.

First, it would reduce (though not end) a major inconsistency. Let’s say that we adopt the death-plus-70 rule. If I publish a work when I’m 25, and I live till I’m 85, the work gets 130 years of copyright protection – the 60 years while I’m alive, plus the 70 years after I die. If I publish the work when I’m 70, it gets 85 years of copyright protection – 15 plus 70. Why should one work be protected for 45 years more than another?

There is a wrinkle, which I should address now. Canada is a signatory to the Berne Convention for the Protection of Literary and Artistic Works. This requires us to provide protection for the life of the author plus 50 years (as Canada does now). We can’t alter this. So, if we switch to the new system, we would need a line saying, “The term of copyright shall not be less than fifty years after the death of the author.” But in most cases – assuming the author lives 25 years after publishing a work – that would amount to the same protection we have had under NAFTA. It would still cut the usual duration of copyright by 20 years, compared with the death-plus-70 measure in the USMCA.

The second reason to change our system is this. The three countries agreeing to USMCA “recognize,” in Article 20.4, “the need to … promote innovation and creativity … [and] facilitate the diffusion of information, knowledge, technology and the arts … [while] taking into account the interests of relevant stakeholders, including rights holders, service providers, users and the public.” Now, I am a great believer in copyright, and in protecting copyright, but I think 70 years from the author’s death is too long. It imposes a cost on “diffusing” the information, knowledge and artistic contents for so long that it makes a mockery of “taking into account” the interests of user and the public. With death-plus-70, almost no one alive at the time of publication will legally be able to do what, for instance, hundreds of authors have done with Sherlock Holmes – reinvent him, create new adventures for him, make cultural use of a literary icon. Just as there is a societal value in protecting an author’s right to profit from his creation, there is a societal value in freeing other artists or users to disseminate and expand that creation. Deciding at what point the first element may give way to the second element is the art of copyright law – and death plus 70, to my mind, ignores society’s second interest.

So, let’s assume there is value in choosing USMCA’s second option for copyright protection – ending it 75 years after publication or (because of Berne) 50 years after death – rather than going along with the United States’ preference for death-plus-70. Is it workable?

I have run my idea past federal experts on the subject who, because I didn’t say I would be writing a blog on this, I don’t think it would be right to name. They were very helpful, and I am extremely grateful that they took the time to discuss the subject. Here are a few selected quotes, with my reaction.

The experts: “For works of authorship, Canada already calculates term on the basis of the life of a natural person, and would therefore be required to provide ‘life plus 70’ for these works.” The term of publication plus 75 years would be used for “published performances and phonograms.”

My response: I see nothing in the act that would prevent Canada from adopting the second basis instead of the one it now uses for works of authorship. Both are given as legitimate options in the act. Indeed, the United States has a bifurcated system: Works published between 1923 and 1977 have copyright protection for 95 years from the date of publication, while those published after 1977 now have death-plus-70.

A later letter from my experts seemed to soften the blanket statement in their earlier letter.

“[T]here is no real possibility of contemplating a change in approach from that based on the life of the author where there is an author of a published work. The general term of copyright is and will continue to be computed relative to the lives of authors and only in the limited, special cases will it continue to be computed relative to the works’ publication dates.” [I assume this refers to the U.S. 1923-77 anomaly.] “To my knowledge, there is no jurisdiction that calculates the term of protection for published works of authorship on a basis other than the life of the author. This has been the case since the Berne Convention was created in 1886.” [I’m a bit confused here, since the U.S. jurisdiction certainly had a different basis in place until 1977.]

Again, I appreciate the argument that we’ve never done it that way, but I have read the act carefully and see nothing that would prevent us from doing it that way. The consequences of arbitrarily (and I use that word advisedly) adding 20 more years to the term of copyright are serious enough – delaying for 20 years the right of “users” and “the public” to make free use of the material, long after the author and most of his immediate heirs have died – that the federal government should consider doing what the act (to my mind) allows it to do. Change the basis for copyright in published written works to 75 years from date of publication, that period not to be less than the death of the author plus 50 years.  (The Berne requirement.)

USMCA gives Canada 2.5 years from the date of enactment to make the necessary changes to its copyright law. This gives us time to argue the point. Thanks for reading this.