·  by Jeremy Malcolm

Dice Loaded Against Public in Canada’s Copyright Term Extension

Originally Posted On: EFF Deep Links

The announcement of the Canadian Government’s plan to extend copyright terms for sound recordings came as a surprise when it was released in Canada’s federal budget yesterday. The smooth stage management of the announcement has to be admired, accompanied as it was by pre-prepared soundbites from Canada’s music A-list extolling the benefits of this handout. In fact, with all the drama and glamor of the announcement, all that was missing was any prior public consultation or debate that could give the government an actual mandate to make this sweeping change to Canadian law.

This extension only applies to copyright in sound recordings and performances, which have always been treated differently to the copyright of authors. The rights of authors, for example songwriters, continues on from their death under international copyright law, which recognizes the qualitative difference in the creativity involved. In contrast, rights of producers or performers generally run from the date of the fixation or publication of the performance. For that reason some copyright lawyers, especially those from civil law countries such as those of continental Europe, refer to the rights of performers and producers as “related rights” (or sometimes “neighboring rights”) rather than as copyright, which in many other languages literally means “authors’ rights.”

So this is not an across-the-board term extension, but it’s the next worst thing. Why? Because in other jurisdictions when the term of copyright protection has been extended for one class of rightsholder, this has frequently been a prelude to its extension for the other classes. In Europe, for example, the term of copyright for authors was extended by 20 years in 1993, and but for performers it happened in 2001. In Canada, the situation is reversed: performers get their 20 year extension early—so, cue the authors’ representatives to demand their turn next.

Even considered in isolation, though, this copyright extension is thoroughly misguided. Canada just completed a copyright reform process between 2010 and 2012, and it was decided not to extend copyright—indeed, the idea received relatively little attention. There was no evidence, then or now, that the extension would increase incentives for the investment in the recording and performance of copyright works. On the contrary, as Michael Geist explains, the significant costs of the new measure will be paid by the public, and the benefits will accrue mostly to record labels (and much less significantly to a few of the most successful recording artists). The sudden inclusion of such a measure in the federal budget therefore seems to come out of nowhere.

But Geist has the answer again, pointing out that the measure is likely a gambit by Canada to avoid being required to give up further ground in the Trans-Pacific Partnership, in which the United States is insisting on an across-the-board copyright term extension. While that is, indeed, a far worse prospect, Canada’s preemptive move provides no guarantee that it won’t still come to pass. On the contrary, as explained above, Canada has provided a very convenient precedent that authors’ groups can use to insist on their own copyright term extension in the near future.

Singer-songwriter Leonard Cohen has been quoted as supporting the term extension on the grounds that “In just a few short years, songs we recorded in the late 1960s will no longer have copyright protection in Canada.” But as explained above, this is untrue. It is only the rights to the particular recording that will fall out of copyright. The underlying musical works of those recordings that Cohen wrote will remain in copyright for 50 years following his death, and the royalties from those works will continue to flow to his family (unless he or they sign them away). Cohen’s own lyrics provide a more apt description of what is really going on here:

Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows that the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That’s how it goes
Everybody knows

Canadians shouldn’t stand for it. Whenever Internet users have truly flexed their muscles and made a real difference, it has been to oppose copyright hand-outs made without adequate transparency and consultation—of which this is a textbook case. Hopefully Canadians are able to rise up against it and force the Government to back down. That may be just the kind of strong message that the TPP negotiators need to hear that we won’t accept copyright term extension in the TPP, either.