Copyright Term Extension Found in NAFTA 2.0 Implementation Bill

Observers had reason to worry that a copyright term extension would be found in the NAFTA 2.0 implementation bill. Now that it’s in there, it is drawing controversy.

Canadian Prime Minister Justin Trudeau has introduced the NAFTA 2.0 implementation bill. He promised this would happen earlier on with an announcement that the bill is forthcoming. Now that it is here, people can find out for themselves what is in it.

One of the things everyone was looking out for is a copyright term extension. Canada already follows the international norm of life plus 50 years. This is per the Berne Convention. What’s more is that extending copyright term has no real merit. No reliable evidence suggests that there is a need to extend the term past this, let alone by another 20 years. In fact, some economic analysis suggests that the term is too long and is causing countries economic headwinds.

Pouring over Bill C-4, it appears that the extension has, indeed, been highlighting the comments of Conservative MP, Dan Albas. Albas says that copyright term extension never really was appropriate in the implementation of NAFTA 2.0, yet here it is. Here’s part of his comments:

Many of my colleagues have been highlighting the deficiencies in this agreement, but I want to look at one that has not been talked about as much but is crucial for the future of Canadian creativity and economic growth: copyright protection. Much of the last year on the industry committee we studied Canada’s copyright framework, and what changes could be made to improve it. We tabled that report, and I am very proud of all the hard work that went into it. I hope the government accepts almost all the recommendations. One thing we did not recommend was to extend Canada’s general copyright term from the life of the author plus 50 years to life plus 70 years. Canada’s copyright term is compliant with the Berne Convention and has served us well. It is my opinion that the exclusive rights to a work being held for 50 years after an author’s death is entirely appropriate and sufficient. Extending that term is not.

During the copyright study, we heard from many viewpoints about extending copyright term. Many were in favour and many were opposed. At the same time, we knew that the text of the USMCA required Canada to adopt the longer American copyright term. This was not a surprise, as that was contained in the Trans-Pacific Partnership prior to the U.S. pulling out from that deal. I thus expected the text of the USMCA- or CUSMA-enabling legislation we are debating today to contain the extension of the general copyright term. Much to my shock and relief, no such extension is in this bill. There are aspects that extend term in some areas such as sound recording and cinematographic works. There is no general extension to life plus 70.

I do not think that this battle is over, as the transitional period means term extension will likely be in the eventual Copyright Act reform that comes from the committee report, but for now the term will be maintained. I hope the government reads the report from the industry committee and seeks to mitigate the damage to Canadian copyright law that comes from the USMCA.

Why is extending the term not the right move? It is because if Canada extends our general term by 20 years, that will create a 20-year black hole in which no works will enter the public domain. For two decades, no work will become open for Canadians to access it in any format they wish without the permission of the rights holder. This will cast a chill on a large amount of innovation and creativity in our country.

So, while he is against the extension, Albas also says he doesn’t see any way of avoiding it at this point. So, with no evidence and no reason to extend copyright in Canada, it appears that Canada is going to get a copyright term extension anyway.

The pile of excuses that lead to this follows a very standard formula for lawmaking at this point. This formula is expressly created to lock out the public from the process. When the legislation is first proposed, lawmakers tell everyone that they cannot criticize the bill because it hasn’t necessarily been introduced. Naturally, we didn’t fall for it and criticized it anyway. When the legislation is put forward, the excuse then becomes that this is must pass legislation and that it’s too late to implement changes. In short, Trudeau largely gave Canadians a giant middle finger on the subject of the length of copyright terms. Meanwhile, Conservatives will likely vote for it anyway, thus also giving Canadians a giant middle finger on this subject anyway while paying a minor amount of lip service in the process.

So, that appears to be how Canada got a copyright term extension. It’s the very American “Because f*** you, that’s why.”

Drew Wilson on Twitter: @icecube85 and Facebook.



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