So many sins may be laid at the doorstep of former U.S. president Donald Trump that it’s easy to miss his perversion of Canada’s copyright system. But now that Justin Trudeau’s cabinet has implemented a 20-year extension of copyright protection in Canada, effective Dec. 30, 2022, it’s worth taking a glance at the fallout. For simplicity, let’s focus on books.
Even before this move, international copyright was fiendishly complicated. Sherlock Holmes lost his final U.S. copyright on Jan. 1, 2023, but he has been in the public domain in Canada since 1981. By contrast, P.G. Wodehouse’s The Inimitable Jeeves (1923), his first novel with Jeeves and Bertie Wooster, has been out of U.S. copyright for four years, but will remain in copyright in Canada until the end of 2045. And Noël Coward’s play Private Lives will be out of U.S. copyright in three years, but will remain in Canadian copyright until the end of 2043.
Why? I’m so glad you asked.
The United States has a two-pronged system. Any book published in 1977 or earlier loses its copyright there 95 years after publication. Any book published after 1977 remains in copyright for 70 years after the author’s death. (Many other countries, notably in Europe, also use death-plus-70.)
In Canada – at least until Dec. 30 – copyright expired at the end of the calendar year 50 years after the author’s death. This satisfied the international Berne Convention for the Protection of Literary and Artistic Works. The authors’ heirs – or, if they sold their copyright, whoever bought it – could control the work until the 50 years were up.
Enter the Canada-United States-Mexico free-trade agreement (CUSMA), which Canada ratified under duress in 2020 to replace the North American free-trade agreement. CUSMA gave Canada 30 months to increase copyright duration to death plus 70. That change kicked in on Dec. 30. (If the cabinet had waited two more days, any author who died in 1972 – e.g. Ezra Pound – would be out of copyright now. Instead, he/she gets another 20 years.)
Wait a minute, you may be saying. Isn’t copyright a good thing?
Copyright is a great thing. Creators of intellectual property should be compensated for their work, both to reward their effort and to encourage publication. The devil is in the duration.
Even on CUSMA’s own terms, moving to death-plus-70 was a mistake. Article 20.4 of CUSMA “recognize[s] 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.”
Protecting not just the writers but their children’s children’s children’s children’s children (of, if a corporate owner, their shareholders’ children) postpones the free “diffusing” of 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. Even death-plus-50 was stretching it. With the extension to death-plus-70, almost no one alive at the time of publication will legally be free to do what, for instance, writers have done with Dracula or Pride and Prejudice – reinvent them, create new adventures for them and make cultural hay with a literary icon. (By legally free, I mean you don’t need to track down the current copyright owner – not always easy – and obtain permission – which may well be withheld.) It might have rewarding to see someone reinvent the characters in The Lord of the Rings. J.R.R. Tolkien was scheduled to come out of Canadian copyright on Jan. 1, 2024. Now it will be in 2044. Same with cartoonist Walt Kelly, creator of the comic strip Pogo. Agatha Christie was scheduled to emerge on Jan. 1, 2027. Make that 2047.
The trick of copyright is deciding when society’s interest in protecting the rights of authors (and heirs) gives way to its interest in disseminating and expanding on that creation. CUSMA got it wrong.
[P.S. Nestlings Press had hoped to put together a book on illustrator Frank C. Papé, who died in 1972. No chance now. Trying to figure out who owns the copyright to his various books would be a nightmare, not to mention of uncertain cost.]