Tag: copyright terms

Canada Extends Copyright Term to Comply With “New NAFTA”

As part of its commitment under the USMCA Trade Agreement, Canada has now extended its copyright term of protection from life-of-the-author plus fifty years to life-of -author plus seventy years, thereby harmonizing this aspect of its copyright law with the United States, the EU nations, the UK, and others. Canadian trade and IP expert Hugh Stephens writes on his blog, “…from my perspective, the most important benefit is that Canadian rights-holders, creators and creative industries will now play on a level playing field with their competitors in most advanced nations.”

Although compliance with the USMCA was inevitable the moment the deal was signed in 2019, copyright skeptics and critics were still rankled by the official announcement of the term extension. Mike Masnick on Techdirt called it a “scandal” and alleged that the Canadian government is plundering the public domain. “It cannot make sense to extend copyright terms retroactively,” he writes, reiterating a view held by many copyright detractors that once the incentive to create a work has been achieved, copyright rights should fade quickly after the work is made available to the market.

Both on this blog and in my book, I have summarized the story of copyright term lengths and how they got that way—though, admittedly, without trying to encompass the development of copyright law in every nation among the 181 signatories to the Berne Convention Treaty. In general, understanding duration of copyright protection can be viewed through the interwoven narratives of the domestic principles and peculiarities in each nation up to the late nineteenth century and the efforts thereafter to establish reciprocity in trade among the community of nations.

Where there is little variance among culturally comparative nations, however, is a longstanding principle that vesting the rights we call “copyrights” in authors of works is a matter of justice, and this includes a consensus that these rights may be inherited as property by a limited line of the author’s descendants. For instance, in England, this idea first took legislative form in 1837 with a proposed life-of-the-author-plus-sixty-years term, and France was the first with a similarly principled statute in 1793 that allowed for a term of ten years after the author’s death.

The life-plus-fifty-years term was voluntary for signatories to the Berne Convention Treaty between its adoption in 1886 and 1948, when the term became mandatory. The additional twenty years of protection originated in the Maastricht Treaty to form the European Union in 1993, and the U.S. Copyright Term Extension Act (CTEA) of 1998 was passed solely in response to that change—and not, as many still believe, to save Mickey Mouse from falling into the public domain.

As Stephens discusses in an excellent blog post, Canada played a unique role as a former colony, semi-colony, and independent state while nurturing its own cultural and literary identity and industry. For instance, during the nineteenth century, before the U.S. codified any copyright reciprocity with other nations, its nascent publishing industry pirated English books, which were sold into the Canadian market. Meanwhile, Canadian publishers could not do likewise as subjects of the English Crown, but they could pirate American books to sell into the American market, and famously did so with the works of Mark Twain.

Then, in the twentieth century, while the U.S. was bogged down in its thicket of copyright formalities, which delayed participation in the Berne treaty, Canada became a Berne signatory as an independent nation in 1928. And during the intervening years before the U.S. finally joined Berne in 1989, American authors often published their books first in Canada to obtain what was known as “back door Berne” protection in the international market.

Why Canada did not extend its own term of protection contemporaneously with the U.S. in the 1990s is simply because it has its own legislative, political, and economic narrative vis-à-vis the timing of international trade deals. Unlike the U.S., the EU extension was not so proximate to Canada’s joining Berne, and by the 1990s, of course, the U.S. creative sector was an economic powerhouse with a tremendous interest in arguing for the extension to keep up with Europe.

So, even if Masnick were correct to look only at the incentive part of the copyright equation, trade parity itself is a damn good reason to harmonize copyright terms, if only to avoid the shenanigans of the past. Even now, the extension prompted by the USMCA is not simply about Canadian authors and the Canadian public domain. As Stephens observes, Canadian authors will enjoy equal term of protection for their works being distributed in the EU countries and the UK, while, for instance, U.S. authors will now enjoy equal term of protection for their works distributed in Canada..

Of course, to copyright critics, nearly any term of protection is too long once the incentive threshold has been crossed, but as I have discussed, this “utilitarian” view that copyright rights exist solely to prompt authorship, and should extinguish shortly thereafter, is a cynical and exploitative view of creators that has never been widely accepted in the history of nations with copyright laws.

On the contrary, aside from the fact that “incentive” of the author encompasses a desire to leave something to one’s heirs, this principle has been extant for as long as even proto-copyright rights have existed. The 1978 World Intellectual Property Organization (WIPO) Guide to the Berne Convention states, “Most countries have felt it fair and right that the average lifetime of an author and his direct descendants should be covered, i.e., three generations.” And that consensus rests on at least three centuries’ worth of evolution in the doctrines of authorial rights worldwide.

As to retroactive copyright rights, it is true that they can create some confusion (i.e., require research) as to whether a work created under a prior act is still protected. I see these questions all the time. For instance, book authors looking to use photographs created under the terms of the U.S. 1909 Act must do some digging to learn the copyright status of the image. But this is not typically what the copyright term hawks are addressing. And more importantly, it happens to be a moot point in this instance because the Canadian term extension bill explicitly states that it does not restore copyright “in any work in which the copyright had expired before the day on which sections 276 to 279 come into force.”

So, what’s the complaint exactly? Oh, yeah. Copyright bad. Got it.

Image by: stuartmiles

Who was Miss Margaret Lee?

In honor of International Women’s Day, let’s give a tip of the hat to author Margaret Lee, whoever she was. According to Frank Leslie’s Popular Monthly, Volume 49, November 1899 – April 1900, Miss Margaret Lee of Brooklyn, NY was the “author of sixteen published books, mostly novels.” Her obituary in the Brooklyn Daily Eagle, December 26, 1914, adds a bit more. It describes her as “the authoress of more than seventy books of contemporary fiction and many pamphlets on controversial interests issued through the magazines and daily press….” The obit mentions neither spouse nor children.

If anyone out there is a Margaret Lee scholar, please share in the comments. But the reason I mention her today is that it was Miss Lee who wrote the Authors’ Petition of 1899 asking Congress to abolish the then 42-year term of copyright protection in favor of a “perpetual copyright.” The petition was signed by “an overwhelming majority of the leading authors, editors and journalists of the United States,” according to the Monthly. And among the signatories was Susan B. Anthony, which is not to be underestimated, in my view, because literary property, as well as literary expression itself, was and remains essential to the cause of women’s rights.

Although copyright critics may be quick to note that a “perpetual copyright” would be an unconstitutional violation of the “for limited times” clause and/or call me a maximalist for celebrating the petition here, it is not entirely clear that Miss Lee and the signatories literally meant “for the rest of all time,” either. I say this because the petition notes how many nations, including several far less productive than the U.S., had already adopted life-of-the-author-plus regimes for copyright protection. Most importantly, Miss Lee articulates core principles of justice on which authorial rights are founded and in honor of the day, I present her petition in its entirety.

AUTHORS’ PETITION (1899)

To the Congress of the United States this petition is submitted:

We, the undersigned authors, editors, journalists, etc., do hereby call your attention to the limitations of copyright now legally existing and ask that they be abolished. We demand perpetual copyright. We believe that property in brain work is as real as property in stocks, bonds and real estate. We claim that mental labor is as honest and as individual as manual industry, or any business activity. 

We know that the profession of authorship requires years of study and preparation. Under the present system an author loses all right in his book when it has been published forty-two years.

Suppose a writer has a book published when he is twenty years old. If he reaches the age of sixty-two he has no further claim on it. It may be a popular work, it may be selling by thousands of copies, but the author may be in need of money for his daily bread. Authorship, like other professions, tells [sic] on the worker. There comes to him a time when he should be able to reap the full harvest of his early labors. He should have he royalty on every book that he has written during his life and be able to will his right in his work to his heirs.

When a law permits injustice the period for its repeal has arrived. To-day in the United States there are many writers whose early works are scattered broadcast by publishers who, as a mere business matter, bring out the popular books that were copyrighted before 1857. The law gives them the right to reprint such volumes ; the authors have no redress.

Perpetual copyright is the natural due of all authors. In Queen Anne’s reign, when laws regarding the limiting of copyright were first enforced, the price of books was very high. Our government copied the English legislation on the question. In 1831 the present system became law.

Sixty-eight years have passed. The masses can buy books.

This is an era of progress, and the truth is that instead of being in the lead the United States is behind the age in her method of dealing with authors. Here are some facts: In Russia, copyright exists during an author’s life, twenty-five years after his death, and ten years in addition if an edition of his works is published within five years of his end of the term. In Spain, author’s life and fifty years thereafter. In Germany, for author’s life and thirty years thereafter. In France, author’s life and fifty years thereafter. Austria, Sardinia, Tuscany and the Papal States, author’s life and thirty years thereafter. Holland and Belgium, author’s life and twenty years thereafter.

We demand that the United States shall at once take the foremost position and make copyright perpetual. We ask that the law may take immediate effect, in the cause of justice, and apply to all copyrights given during the year 1858 and since that date. The reason of the law is the life of the law ; the reason for the putting of any restriction on the life of copyright having disappeared, the limitation should cease, and the right of the author in his works should be perpetual.

The United States finally adopted a life-of-the-author-plus-50-years term of protection with passage of the 1976 Copyright Act. That was two years after women were allowed to get their own credit cards and four years before the U.S. established this week as National Women’s History Week. Make of these contemporary events what you will, but to borrow from Miss Lee, it really can take the U.S. a long damn time before law no longer “permits injustice.”  So, thanks to those who insist upon reform.

Lighten up, Derek Khanna

A legal cub named Derek Khanna, rather than finishing his law degree and taking the bar exam, has been steadily transforming himself into something of an anti-copyright celebrity purporting to represent a conservative perspective.  And yesterday,  he offered this inscrutable editorial, which appeared on Business Insider* among other places.  Ostensibly, the article is a criticism of copyright terms (i.e. the length of copyright), and there is certainly nothing wrong with having that discussion.  In fact, in the two plus years since I’ve personally been involved with these issues, I’ve met several strong proponents of copyrights who would be open to discussing the pros and cons of shorter terms; but it must be something about their 20-30 years worth of professional IP experience that makes them sound just a little less, I don’t know, hysterical than Derek Khanna.

Titled “The Conservative Case for Taking on the Copyright Lobby,”  one might think that the word case coming from a Fellow at Yale would involve some sort of logical construct written with the kind of dispassion legal scholars often exhibit, given their experience balancing complex and competing interests. Not so much.  Instead, Mr. Khanna offers a sort of screamo variation on the anachronistic theme that Hollywood lobbyists are robbing the future economic and creative capacity out from under the next generation while simultaneously committing treason against the orthodoxy of America’s Framers.  All of this is achieved, of course, by the “content lobby” sequestering creative works in the grip of terminal copyrights.

While Disney’s extended hold on its seminal cartoon Steamboat Willie certainly makes an interesting case for discussion, to read Khanna’s article, one might get the idea that creative work has receded thanks to Mickey and the 1976 Copyright Act rather than expanded. All the novels and plays and screenplays unwritten!  All those songs unperformed!  The films we’ve never seen!  And the computer games not produced!  All because of that damn mouse!   Seriously?  Even with terms as long as they are, I have yet to meet a single artist, great or small, who gives existing, protected works anything more than a passing thought when he or she begins to create something new. So, Derek should lighten up because he’s not only not a lawyer yet, he’s really very much not an artist.  I quote:

The costs of one of the greatest thefts in American history by these special interests hinders learning, destroys our cultural legacy, hurts innovation and the public, but, most important, it impedes filmmakers, artists, deejays, and other content creators who need to be able to build upon the work of others to create new content — as we have done for centuries. 

What do you mean we, kid?  And where have you been for the last 20 years?  Oh, right, growing up.

Certainly, Khanna is correct that the social purpose of copyright is to promote new works in the arts and sciences; and if the application of the law exceeds or betrays this purpose by preventing people from building upon the works of others, then reform is in order. Yet, despite whatever research opportunities his fellowship at Yale affords, Kahnna insists on trotting out some of the most overused, amateur complaints about copyrights — Steamboat Willie, corporate ownership of the song “Happy Birthday,” and some ill-advised things former MPAA head Jack Valenti said 32 years ago — rather than demonstrate how current copyright terms are having any tangible, negative effect on the creation of new works. This is because there are no solid data to support this accusation on any scale that can be considered problematic.  To the contrary, copyright continues to serve as a basis for fair trade among authors of works that enables multiple parties to benefit creatively and financially; and it also codifies the principle of fair use in the U.S., which happens to have the most liberal interpretation of that concept among countries that maintain copyright laws.

It is interesting, though, that Derek claims to be making a “conservative case” with this article.  In fact, the absence of a case by any definition of traditional argument reveals the piece for the emotional, buzzword vehicle that it is.  And to this end, the only apparently conservative position taken by Khanna (and it’s not his idea, by the way) in this editorial is a lightly veiled nod to “strict constitutionalism” with quotes like this one:

The steep costs to perpetual extension of copyright have been long known and are well documented. This is why the British copyright statute, the Statute of Anne, limited copyright duration to 14 years; why 12 of the original 13 colonies had similar copyright durations in their own statutes; why the Constitution includes the phrase “limited times”; and why the founders limited copyright to 14 years.

Of course, it’s rational to assume that the Framers anticipated the downsides of perpetual copyright, but the term of 14 years is as arbitrary and irrelevant to contemporary America as whatever it is Sarah Palin keeps babbling about muskets and militias.  When the U.S. extended terms in 1998, it was playing catch-up as one of the last countries to adopt the same terms other copyright-supporting countries already had in place.  What that means is that the U.S., as one of the largest exporters of entertainment and information media in the world, was literally leaving money on the table relative to its trade partners; and it’s difficult to imagine a conservative advocating a position that would support losing revenue in that manner.   One does not make a sound case for thoughtful reform simply by repeating incendiary and obsolete complaints or by bowling a googly like this one:

To their credit, in moments of candor, content-industry lobbyists at least admit their goal is to repeal the copyright clause from the Constitution. 

I got nothin’. I’ve read it several times and cannot figure out why Khanna claims content owners would want to repeal the copyright clause unless he means they would seek to repeal only the phrase “for a limited time.”  Either way, it’s pure, careless invention to suggest this notion lurks anywhere in the minds of serious copyright professionals. The clause itself is older than the Bill of Rights. And no matter what the subject, every time someone with a political axe to grind claims to know the intent of the Framers, it’s hard not to see how such “wisdom” in the wrong hands results in events like the armed standoff now taking place in Nevada.  To quote Terry Hart, who writes the blog Copyhype:

The fact is, the Founders spent remarkably little time on copyright. Joel Barlow told the Continental Congress we should have a copyright act and, by the way, you should just copy England’s law. The copyright clause was proposed just a few days before the Constitution was finalized, and adopted without debate. Compare that to the process going into the 1976 Act, which actually comprises 20 years worth of study by the Copyright Office, roundtables, discussion drafts, public comment, and congressional hearings.

And in case Derek Khanna and the editors who think he’s worth listening to hadn’t noticed, a new copyright review has been underway for several months now, complete with hearings in the House Judiciary Committee. It’s a complex matter being discussed by serious people with many points of view and by a variety of stakeholders. And I am told by lawyers I know who have been the room with studio execs and the MPAA, that nobody is talking about extending terms. Meanwhile, the narrative that Hollywood alone holds Washington in the grip of its lobbyists has been outdated for quite some time, with those resources dwarfed by the expenditures of Google alone in its efforts to weaken copyright.

I get why Khanna’s charm and good looks make him an attractive poster boy to watch poke a hornet nest with a stick. But despite all the aggrandized prattle about the digital age elevating discourse in the world, this is all too often what it really looks like:  a kid with exactly zero professional experience spouting a bunch of popular-sounding and oversimplified bullet points, all because it’s good click-bait. But that’s not where the real discussion is taking place, and neither should it be. This kind of reminds me of a moment in the year 2000 when CNN was reporting the unfolding disaster of the Russian sub Kursk, trapped deep in the Barents Sea and about to lose all hands. And CNN brings on action/thriller novelist Tom Clancy because of course he wrote The Hunt for Red October.   Fourteen years later, this circus gets more absurd by the hour.

*This was mistakenly attributed to another article and link in The Washington Post.  Thanks to Mr. Khanna for the correction.