On 29 January 2020, the Canadian federal government introduced Bill C-4, “An Act to Implement the Agreement between Canada, the United States of America and the United Mexican States” (CUSMA).1 The bill includes a proposal to extend copyright’s term of protection2 by 20 years, moving it from “life of the author + 50 years” (the international minimum standard as per the Berne Convention and TRIPS Agreement) to “life + 70 years.” An open consultation process is open until 12 March 2021 and Creative Commons, together with Creative Commons Canada, submitted comments to remind the Government of Canada of the imperative to preserve the public domain and safeguard the public interest in access to copyright works despite an inevitable term extension.
Extending copyright’s term harms the public domain
At Creative Commons, we believe that copyright policy should encourage creativity, not hamper it. In a balanced copyright system, the rights and interests granted to both creators and the general public are necessary to stimulate vibrant creativity and foster the sharing of knowledge. We’ve previously made it clear that excessive copyright terms inhibit our ability to build upon and rework creative content. A 20-year extension effectively keeps creative works out of the public domain for two extra decades. This is an incredible loss given the role of the public domain as the trove of materials on which contemporary creativity depends.
There is no reason for copyright protection to last as long as it already does—let alone be further extended. In fact, we argue for the term of protection to be significantly reduced. A brief filed by leading economists in the 2002 Eldred v. Ashcroft case demonstrated how the costs of a term extension outweigh the benefits. In a 2009 paper, economist Rufus Pollock estimated the optimal copyright term to be about 15 years. Adding 20 years is a huge step in the wrong direction.
An extension is also going to negatively impact the sectors hard hit by the COVID-19 pandemic, namely the education, academic and GLAM3/cultural sectors, as pointed out by Canadian copyright academic Michael Geist who called the copyright term extension “bad policy.” With copyright erecting so many unnecessary barriers preventing the free flow of knowledge and culture, extending its length flies in the face of policy efforts made to increase access to knowledge in times of crisis and of community efforts to reduce the effects of the pandemic.
Canada must uphold the public domain
As stated in the Industry Committee’s 2019 recommendations — which we praised upon their release — there is no way around Canada’s obligation to extend the term under the CUSMA trade agreement. Despite the inevitable term extension, Canada’s copyright policy should still strive to promote a robust and universally accessible public domain. In fact, Canadian ministers have indicated in the past some support of the public domain, stating that copyright law “should ensure […] that users benefit from a public domain.” Accompanying mitigation measures must include a registration obligation (as generally recommended by the COMMUNIA Association) or other types of formalities for creators wishing to benefit from the extra 20 years of protection.
Despite the inevitable term extension, Canada’s copyright policy should still strive to promote a robust and universally accessible public domain.
In line with our 2021-2025 strategy, we encourage collaboration among open advocates defending the public interest in Canada to push for a balanced copyright regime that truly rewards creators and upholds the rights of users to access, reuse, and further contribute to the public domain.
We will also continue to make available to creators a simple tool to enable them to waive their copyright using CC0 and share their creations under open CC licenses to recalibrate a copyright system that is too tilted against sharing and collaboration. Around the world, we will also continue to hold our strong stance against any copyright term extension to ensure better sharing and uphold the public domain as our shining light in times of darkness.
1. The Canada-United States-Mexico Agreement CUSMA (or USMCA) is a trade agreement between the three North American countries that entered into force on July 1, 2020.
2. The copyright term is the period of time during which creators can enjoy exclusive rights over how their works are used.
3. GLAM refers to galleries, libraries, archives and museums.
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