Tag: USMCA

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

HJC is Right to Want Internet Safe Harbors Out of USMCA

Remember the Trans Pacific Partnership?  The twelve-nation trade agreement that became an eleven-nation trade agreement when the U.S. pulled out?   As a general opinion, I will propose that when both a Bernie Sanders and a Donald Trump want to thrash a Fair Trade Agreement (FTA), it’s a pretty good indication that diametrically opposing ideologies have come to the same naïve conclusion.  Whether one’s anti-globalism is steeped in anti-corporatism or ultra-nationalism matters very little when the self-defeating result is not the abandonment of the world’s largest trade deal, but a decision that the United States will not have a seat at the table.  

But the reason I’m trotting out that diplomatic fiasco in this post is to remind readers why “digital rights” groups like the EFF, PublicKnowledge, ReCreate Coalition, et al campaigned so energetically against the TPP:  because they said it would “entrench” the status quo of copyright law, particularly the duration of copyright terms.  “One of the defining battles in the Trans-Pacific Partnership (TPP) negotiations,” began a typical EFF blog post in 2017,  “is whether its signatory countries will standardize copyright terms lengths to a minimum term of the life of the author plus 70 years.” While this post presents the urgency of six new countries adding 20 years to their copyright terms, I do not believe the duration of copyright in Brunei was the focus of the organization’s agenda.

Regardless of how one feels about term length, it was profoundly disingenuous to imply in that post, and others, that the USTR was working at the behest of major rightsholders to entrench the life-plus-70-year standard through an FTA. Further, in my view, this post was written to suggest that, if the U.S. did not ratify TPP, we just might to roll back our terms to life-plus-50 years. But that regime was already a global standard when the U.S. joined the Berne Treaty a century after it was first created; and the increase from 50 years to 70 in 1996 was the result of the U.S. matching its terms to those adopted by the new European Union.  So, there was never any logic to the implication that by withdrawing from the Pacific trade deal, this would have loosened the bolts on U.S. copyright policies, which are based largely on the history of Euro/American trade in copyrightable works.

With that preamble in mind, be prepared for much wailing and gnashing of teeth from the “digital rights” groups if the U.S. Trade Representative concedes to a request by the House Judiciary Committee to remove language from the USMCA (new NAFTA) mirroring the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA).  

Also referred to as Section 512, these are the provisions under which internet service providers (ISPs) are held immune from liability for hosting copyright infringing material that is uploaded by users; and safe harbor language has been echoed in FTAs since passage of the DMCA in 1998.  Why the change in doctrine?  In its September 17 letter to the USTR, the Committee stated …

“The U.S. Copyright Office is expected to produce a report on Section 512 around the end of this year, the result of a multi-year process that started in 2015.  Moreover, the European Union has recently issued a copyright directive that includes reforms to its analogous safe harbor for online platforms, which may have an impact on the U.S. domestic policy debate.  Without taking a position on that debate in this letter, we find it problematic for the United States to export language mirroring this provision while such serious policy discussions are ongoing.”  

Quite simply, the DMCA has been under review for several years because it is not exactly working as intended.  In fact, neither of the two internet liability shields—neither Section 512 nor Section 230—has resulted in platform operators taking adequate voluntary action to mitigate harm on their platforms.  To the contrary, absolute immunity for web platforms fostered a culture of smug, self-important rationales for irresponsibility.  

Until major Silicon Valley executives had to start answering questions about data breaches and trust violations, they were the self-proclaimed  “fast movers and thing breakers,” insisting that if we all want progress (see innovation), we gotta let them break a few eggs, right?  Except those eggs were privacy; civil liberties; personal safety; decency; the rights of authors and inventors to protect the fruits of their labor; other labor rights while we’re at it; and the foundations of democracy itself.  Small price to pay for Facebook and YouTube, I guess.

In contrast to the ginned-up fears of “entrenching” century-old copyright regimes in trade agreements, the “digital rights” groups will no-doubt recommend entrenching law through FTAs with a much shorter and dodgier pedigree.  It took less than 20 years after passage of the DMCA to recognize that ISPs will use their liability shields to avoid taking adequate voluntary measures to mitigate harmful or illegal conduct on their platforms.

The logical conclusion many constituencies are now coming to with regard to internet service providers—and this is hardly a revelation—is that tech corporations, like any other, will avoid incurring costs, either direct or opportunity, unless the potential liability will be even more expensive.  The House Judiciary Committee is right to put the brakes on safe harbor provisions in FTAs in order avoid calcifying demonstrably flawed policy.