The Trouble with the TPP series continues with one of the most high profile copyright concerns associated with the TPP: mandatory copyright term extension (prior posts include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks). The term of copyright in Canada is presently life of the author plus an additional 50 years, a term consistent with the international standard set by the Berne Convention. This is also the standard in half of the TPP countries with Japan, Malaysia, New Zealand, Brunei, and Vietnam also providing protection for life plus 50 years.

From a Canadian perspective, the issue of extending the term of copyright was raised on several prior occasions and consistently rejected by governments and trade negotiators. For example, term extension was discussed during the 2009 national copyright consultation, but the Canadian government wisely decided against it. Further, the European Union initially demanded that Canada extend the term of copyright in the Canada-EU Trade Agreement, but that too was effectively rebuffed with the issue of term removed from the final text.

From a policy perspective, the decision to maintain the international standard of life plus 50 years is consistent with the evidence that term extension creates harms by leaving Canadians with 20 years of no new works entering the public domain with virtually no gains in terms of new creativity. In other words, in a policy world in which copyright strives to balance creativity and access, term extension does not enhance creativity but it does restrict access.

The negative effects of term extension has been confirmed by many economists, including in a study commissioned by Industry Canada, which have concluded that extending the term simply does not create an additional incentive for new creativity. Moreover, studies in other countries that have extended term have concluded that it ultimately costs consumers as additional royalties are sent out of the country. In the case of the TPP, the term extension is a major windfall for the United States and a net loss for Canada (and most other TPP countries). In fact, New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher.

The damage caused by the term extension involves more than just higher costs to consumers and educational institutions. It also creates a massive blow to access to Canadian heritage. Canadian publishers such as Broadview Press, an independent academic publisher that has been a vocal proponent of copyright, warned about the dangers of the term extension to its business and the academic community last fall:

Unlimited, or excessively long, copyright terms have often kept scholars from publishing (or even obtaining access to) material of real historical or cultural significance. They have severely restricted certain options for university teaching as well. Broadview’s editions of Mrs. Dalloway and of The Great Gatsby(edited by Jo-Ann Wallace and by Michael Nowlin, respectively), for example, are to my mind unrivalled. Each includes far more than just the text itself: explanatory notes, extended introductions, and an extraordinary range of helpful and fascinating background material in a series of appendices. They offer a truly distinctive pedagogical option. But instructors and students in the USA are still not allowed access to those editions.

Currently, we at Broadview are looking at publishing similar editions of works by other authors who have been dead for more than 50 but fewer than 70 years—works such as Orwell’s Animal Farm and 1984, for example; a Broadview edition of such works, with the appendices of contextual materials that are a feature of almost every Broadview edition, would provide highly valuable context for students at all levels. We are also looking forward to January 1, 2016, when we will finally be able to make the superb Broadview edition of The Waste Land and other Poems—with its excellent explanatory notes and extensive range of background material on modernism—available in Canada. (Eliot died in 1965.)

If the TPP is approved in Canada, then, say goodbye to those Orwell and Eliot editions.

As I noted last year, with the TPP mandated copyright term extension there are 22 Governor-General award winning fiction and non-fiction authors whose work will not enter the public domain for decades. These include Margaret Laurence, Gabrielle Roy, Marian Engel, Marshall McLuhan, and Donald Creighton.

The list of winners whose works were scheduled to enter the public domain over the next 20 years, but will now wait until at least 2037 (assuming a 2017 reform date):

FICTION

• Igor Sergeyevich Gouzenko (The Fall of a Titan)
• Winifred Estella Bambrick (Continental Revue)
• Colin Malcolm McDougall DSO (Author, Execution)
• Germaine Guèvremont (The Outlander)
• Philip Albert Child (Mr. Ames Against Time)
• Gabrielle Roy (The Tin Flute)
• Jean Margaret Laurence (The Stone Angel/ A Jest of God)
• Marian Engel (Bear)
• Hugh Garner (Hugh Garner’s Best Stories)

NON-FICTION

• James Frederick Church Wright (Slava Bohu)
• Laura Goodman Salverson (Confessions of an Immigrant’s Daughter)
• Edgar Wardell McInnis (The Unguarded Frontier)
• Evelyn M. Richardson (We Keep a Light)
• William Sclater (Haida)
• Marjorie Elliott Wilkins Campbell (The Saskatchewan)
• William Lewis Morton (The Progressive Party in Canada)
• Josephine Phelan (The Ardent Exile)
• Donald Grant Creighton (John A. Macdonald, The Young Politician)
• Frank Hawkins Underhill (In Search of Canadian Liberalism)
• Herbert Marshall McLuhan (The Gutenberg Galaxy)
• Noah Story (The Oxford Companion to Canadian History and Literature)
• Francis Reginald Scott (Essays On the Constitution)

In addition to Canadian authors, there many well-known international figures that will be kept out of the public domain such as John Steinbeck, Martin Luther King, Andy Warhol, Woody Guthrie, and Elvis Presley.

While the damage to the public domain in Canada is huge and stands as one of the worst aspects of the TPP’s intellectual property chapter, there is the potential for an implementation approach that would mitigate some of the harm. As Kim Weatherall points out in her excellent review of the TPP copyright provisions, earlier versions of the TPP included a provision prohibiting the implementation of any formalities such as registration for copyright. The no formalities rule was dropped from the final TPP text.

The Berne Convention prohibits the use of formalities for works covered by the treaty, but Canada could conceivably treat the term beyond Berne – ie. the 20 years after life plus 50 years – as a supplementary regime that falls outside of the Berne standard. If Canada (and potentially other countries) treat the additional protection as supplemental, it could require copyright registration and notification of the extended term in order to qualify for further protection. Copyright registration would not eliminate all the harm to the public domain, but it would mean that only those that desire the extension would take the positive steps to get it, thereby reducing the costs of the TPP’s unnecessary copyright term extension.