IP Law Scholars Send Open Letter to Stop Copyright Term Extension

Copyright term extension is a bad idea all around. Now, legal scholars are voicing their concerns.

The Liberal party’s war on the open Internet was largely expected. The three prongs, which are social media censorship, link taxes, and the online harms/Internet censorship legislation are either tabled or on their way. It was long promised as one need only look at the Liberal party platform (part 1, part 2) to see how they were itching to crack down on the Internet. Probably the only real surprises was just how broad the bills that were tabled are.

What wasn’t really expected, however, was copyright term extension. Earlier, the Liberal party buried copyright term extension in the third annex at the back of the budget. It was an American style effort to slip such a radically big change to copyright law. The idea is to ensure as little debate happens as possible and hope no one notices. It’s unpopular for very good reasons and a case for such an action on copyright has never really been made. Yet, here we are, being blindsided by this new bill which has absolutely nothing to do with government finance.

Still, such a big shift in copyright didn’t go unnoticed. As word spread, so did the concern that this was even happening in the first place. Several intellectual law scholars are now sending an open letter to the government. In it, they urge the government not to move forward with this. From the open letter (PDF):

The issue of term extension was subject to consultation last year. However insufficient that consultation was, it demonstrated the complex issues involved in deciding whether to implement copyright term extension, along with the many ways through which such an extension could be implemented. These issues cannot possibly receive the careful attention and deliberation they deserve when incorporated into a budget bill. Choosing this legislative method thus risks upsetting years of careful policy-making in the context of copyright.

In addition to imposing an additional and superfluous “tax on readers”, extending the term of copyright will also have a profound impact on Canadians’ freedom of expression—their ability to access and use expressive works created by others, and their ability to incorporate and build on those works in their own expressive activities. Such negative impacts are not merely hypothetical, but are well theorized and empirically proven. Therefore, if the contemplated term extension can be at all consistent with the Canadian Charter of Rights and Freedoms, the proposed legislation must ensure minimal impairment of free expression and must include mitigating measures to minimize its detrimental impact. It will be more difficult to demonstrate that the proposed legislation meets these constitutional thresholds in the absence of fulsome debate in which the various options for implementation have been canvassed.

At the very least, establishing a registration requirement for the additional term—which would allow right holders that want the extension to get it, while ensuring that many other works enter the public domain at the internationally-recognized standard of life plus 50 years—is essential. Even if the budget announcement had indicated that such a registration requirement would be included in the legislative amendment—which it did not—it would still be inappropriate to include such a measure in a budget implementation bill; the devil may lie in the details and a proper consultative and deliberative process is essential for ensuring an effective and operative registration system.

Indeed, the registration system would have been a much better approach. If copyright holders really want those extra 20 years, it could have been implemented so all parties are satisfied. The public domain could continue to be enriched with new content. What’s more is that freedom of expression could have been respected as well. The fact that this appears to be not the direction the government has chosen is indicative of the “lobbyists speak for all” approach that we’ve seen in the link tax and social media censorship bills. It’s a really bad look all around.

It’s hard to say if the letter will make much of a difference. After all, we’ve seen online creators not only have their concerns ignored, but also being openly attacked for questioning the governments legislative direction. Indeed, we hope that they will listen to reason this time around, but there is reason to believe that they won’t just the same.

Copyright term extension across the board is a terrible idea. Burying it in the budget like this is a sign that the Liberals know its a bad idea, but are proceeding with it anyway because lobbyists are demanding it. It remains to be seen how they’ll react after they got busted trying to slip this one past Canadians without anyone noticing.

Drew Wilson on Twitter: @icecube85 and Facebook.

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