Restoring the balance in Canadian copyright law
Rights should revert to the author after the work has been put out-of-commerce.
Copyright is best understood as a balance between creators' and users' interests to promote the broader public interest. As the SCC wrote in its 2002 Théberge ruling, achieving a proper balance recognizes the creator's rights and gives due weight to their limited nature.
It has been six months since the Canada-United States-Mexico Agreement (CUSMA) extended the standard term of copyright protection in Canada by 20 years to 70 years after the death of the author.
There was no apparent imbalance in the copyright regime that the change addressed. As part of its statutory review of the Copyright Act , completed in 2019, the Commons Industry and Technology (INDU) committee made no such recommendation. Instead, the term extension seems to have been a bargaining chip in a trade negotiation.
We can debate the merits of the bargain, but the outcome has undoubtedly disrupted the copyright balance. To restore it, we must consider introducing compensatory adjustments. Determining the stakeholders who may have benefitted from the disruption and those whose interests might have been harmed could provide insights into appropriate remedies.
U.S. corporate interests seeking to protect their most valuable copyright-protected assets were the driving force behind the term extension. But as crucial as it might have been to our relationship with our largest trading partner, it's unclear why Canadian negotiators agreed to apply the extension to all protected works, irrespective of their commercial potential. That discussion will be left for another day.
The public domain is the most adversely affected by the extension. When a work is published, the rightsholder enjoys the benefits of statutory copyright protection. In return, the public gains a stake in ongoing access to that work. This stake persists from the time of publication throughout the entire duration of copyright protection, while the work is commercially available and after it is out of commerce. This continues until the copyright protection period concludes, and the work becomes part of the public domain.
From the public's perspective, any term extension in copyright only exacerbates the challenges in accessing in-copyright but out-of-commerce works and ensuring their preservation for use after they enter the public domain.
As for authors, it seems doubtful that anyone truly believes adding 20 years of copyright protection provides any additional incentive for them to create new works.
It appears that publishers are the ones who benefit, gaining an additional 20 years of revenue from a tiny fraction of protected works that still hold commercial value. But this comes at the expense of the public's access to all other protected works, and authors realize no real benefit.
To restore the balance, as emphasized in Théberge, copyright law should aim to "prevent someone other than the creator from appropriating whatever benefits may be generated." It makes sense to look at what might be a real benefit to authors and offset some of the harm to the public domain.
As we seek to do this without jeopardizing our trade relations, it is essential we align our approach with the guidance in Théberge to "harmonize our interpretation of copyright protection with other like-minded jurisdictions."
The solution may lie in implementing rights reversion. The Copyright Act could mandate that every publishing agreement or any other agreement transferring copyright include a provision ensuring that the rights revert to the author after the work is out-of-commerce for a certain period. This would enable authors to regain control over their works and, if they are no longer commercially viable, make them available under an open license, thereby facilitating ongoing public access to the work. The European Union's Directive on Copyright in the Digital Single Market, specifically Article 22, already provides such a revocation right.
Also, an improvement to the Copyright Act could involve setting a maximum term for agreements transferring copyright, limiting it to 25 years, regardless of whether the work remains in commerce for the entire duration. This would allow the author (or their beneficiaries) to renegotiate the publishing agreement if the work continues to be of significant commercial value beyond the initial term. Such a rights reversion would be similar to what is available to authors in the U.S. after 35 years.
Taken together, these measures would significantly empower authors by granting them greater control over their works, thereby increasing the likelihood they remain accessible to the public throughout the long, long, term of copyright protection.
Authors, along with current and future users of their works, stand to gain from factors that genuinely incentivize authors to create, while also prioritizing the broader public interest in preserving access to their works.
Although we must accept the unfortunate 20-year extension to the copyright term, there remains an opportunity to urge Parliament to take corrective actions and restore the disrupted balance. Taking a serious look at rights reversion is a good first step.
