Copyright and the 50-Year Rule

Following is the text of a brief I submitted to the parliamentary committee studying copyright. Sadly, in the USMCA negotiations, the Canadian government caved on the 50-year rule; though it will not be enforced retroactively, a 70-years-after-the death rule will go into effect in Canada if that trade deal is approved by all parties. The arguments against, though, seem to me to be still strong; those of us who feel even 50-years-afyter-the-death is too long should keep making them--and perhaps we may yet find legal means to undermine the sway of the large corporations on this issue.

A Brief Submitted to the Standing Committee on Industry, Science and Technology, August 23, 2018

RE: 2018 Statutory Review of the Copyright Act

Don LePan (CEO and Company Founder, Broadview Press Inc.; Literary Executor, the Estate of D.V. LePan; novelist)

Interest groups continue to pressure the Canadian government to increase the period during which copyright restrictions on written material apply from 50 years after the death of the author to 70 years after the death of the author. It’s pressure that Canada should continue to resist. Let’s think for a moment of how very, very long copyright restrictions already apply in Canada: Leonard Cohen died in 2016; his The Spice-Box of Earth, published in 1961, will not enter the public domain until January 1, 2067—106 years after it was published. Cohen’s now-classic 1966 novel Beautiful Losers will enter the public domain the same year—101 years after it was first published. P.K. Page died in 2010. Her breakthrough book of poetry, The Metal and the Flower, published in 1954, will not enter the public domain until 2060—106 years after it was published.

Mavis Gallant died in 2014. Her breakthrough short story “The Other Paris,” first published in The New Yorker in 1953, will not enter the public domain until 2064—111 years after it was published.

What about the works of authors who are still young or middle-aged today?

Yann Martel was born in 1963, Miriam Toews in 1964; Life of Pi was published in 2001, A Complicated Kindness in 2004. If each lives to at least 85—these days, an average lifespan—those already-classic Canadian novels will not enter the public domain before 2099 (in the case of Martel’s) and 2100 (in the case of Toews).

Terese Marie Mailhot was born in 1983; her memoir Heart Berries was published in 2018. Assuming she lives to at least 85, that acclaimed work will not enter the public domain until 2118—100 years after it was published.

Look at examples such as these, and it’s hard to imagine that the large publishers would like copyright to be extended even further into the future, but such is the case. They’d like to keep “The Other Paris” out of the public domain until 2084—131 years after it was published, and The Spice-Box of Earth out of the public domain until 2087—136 years after it was published.

What practical difference does any of this make? Quite a bit, actually. Copyright protection gives publishers a monopoly for as long as it extends—and with it, monopoly pricing power. As I write this the only in-print edition of Robertson Davies’ famous 1970 novel Fifth Business is a deluxe paperback retailing for $22.00.

By definition, a monopoly also prevents competition. Where classic novels are in the public domain, editions tend to proliferate; readers can choose a deluxe edition or a cheap edition; professors can choose for their students an edition that offers just the text itself or an edition that offers the text together with a range of critical essays (as with the Norton’s Critical Editions series), or an edition that offers the text together with a range of contextualizing historical material (as with the Broadview Editions series).

Because copyright restrictions extend so long, that range of options is simply not available for classics of late twentieth century literature—or even for the literature of mid century. Even with copyright law as it is now, a publisher such as Broadview will not be able to publish “value-added” editions of classics such as Gabrielle Roy’s The Tin Flute (Bonheur D’Occasion) or Margaret Laurence’s The Stone Angel until 2034 and 2038 respectively. If copyright were extended by another 20 years, we’d be prevented from offering those sorts of editions to readers until 2054 and 2058 respectively.

It’s not just works by Canadian authors that are affected by Canadian copyright law, of course. Currently we at Broadview publish a superb edition of T.S. Eliot’s The Waste Land and Other Poems. A few years ago the only edition of The Waste Land that was available in Canada was that issued by Faber & Faber, which included no explanatory notes (other than Eliot’s own), no introduction, and no supplementary materials. That edition remains available for those who prefer a bare-bones edition, but now that Eliot’s works have entered the public domain in Canada readers can also choose the Broadview edition, with its wealth of explanatory notes and background materials on modernism—or the excellent Norton Critical edition, with a different set of background materials, or a fine edition from Penguin.

T.S. Eliot died in 1965; if Canadian law mandated 70-years after the death on copyright, Eliot’s 1922 poem would not enter the public domain until 2036—114 years after it was first published!

Dorothy Richardson’s Pointed Roofs is another telling example. This 1915 novel was the first to use what came to be known as “stream of consciousness” technique. We at Broadview have published an edition (edited by Canadian scholars Stephen Ross and Tara Thomson) that does a wonderful job of setting this modernist classic in context by including a wide range of background materials alongside the novel itself.

Dorothy Richardson died in 1957; if Canadian law mandated 70-years after the death on copyright, her 1915 novel would not enter the public domain until 2028—113 years after it was first published.

Currently, we at Broadview are looking at publishing “value added” editions of works by a number of authors who have been dead for more than 50 but fewer than 70 years—works such as Ian Fleming’s 1953 novel Casino Royale—the book with which the James Bond series began—and E.M. Forster’s classic 1908 novel A Room with a View; we plan to publish in 2021 editions of both those titles that will include a wealth of background contextual material in addition to the text itself. If Canadian copyright restrictions were extended 20 years beyond their current level, we would be prevented from publishing those editions in Canada until 2035 (in the case of Casino Royale—Fleming died in 1964) and 2041 (in the case of A Room with a View—Forster died in 1970). That last is worth repeating. If copyright restrictions in Canada were extended for a further 20 years beyond their current level, competing editions of Forster’s 1908 novel could not be made available to Canadian readers until 2041—an astonishing 133 years after the book was first published.

It’s often imagined that extending copyright to 70 years beyond an author’s death benefits that author and his or her descendants. More often than not it works in the other direction. To be sure, the grandchildren and great-grandchildren of the few authors that remain highly popular 50 years or more after their death may receive an undeserved windfall. But the vast majority of works do not remain popular 50 years after the author’s death; they do not even remain in print. Should a publisher wish to try to bring those works back into print, it’s not always easy to do; with decades having elapsed, copyright holders are often very difficult to locate. Neglected authors stand a far better chance of being recovered if their work has entered the public domain.

In saying all this I should make clear that I am not writing simply from the perspective of a publisher of a large series of literary editions. I’m also speaking as the literary executor for my father, Douglas LePan, who won two Governor General’s awards in the 1950s and 1960s, but whose work was receiving little attention by the time he died in 1998. Next year a new selection of his poems will appear from Porcupine’s Quill, and his novel The Deserter will be re-issued by Dundurn Press; neither publication would be possible were it not for my (a) having made information as to the whereabouts of the copyright holder for my father’s Estate readily available, and (b) being willing to ask for virtually nothing by way of royalties, and no advance. It is absolutely in the interests of the author in a case such as this for the author’s heirs to make the work readily available, and virtually free for prospective publishers (who will of course still need to make the usual investments in editing, typesetting, printing, and so on, as well as paying for a new introduction for the re-issue.) To ensure that my father’s literary works remain accessible a generation from now, my preference would be to have those works enter the public domain even before 50 years have elapsed beyond his death. Since Canada is a signatory to the Berne convention I’m sure that’s not likely to happen, but I would hate to see 50 years extended to 70 years.

I’m also writing from the perspective of an author myself. My third novel is projected for 2019; my first, Animals: A Novel, was published in 2009 by Véhicule in Canada and in 2010 Soft Skull/Counterpoint in the US. It was widely acclaimed—Nobel Prize winner J.M. Coetzee called it “a powerful piece of writing and a disturbing call to conscience”—and it received many positive reviews. But already annual sales have slipped significantly. Would I want that book to still be under copyright protection (and thus more difficult for prospective publishers to rediscover and re-issue) more than 50 years after my death? Absolutely not. Even in the highly unlikely event that the existing edition were selling well at that point, I don’t see any reason why the book should decades from now carry a higher price than it would otherwise, merely so that royalties can be paid to my grandchildren.

The interest groups that push for extending copyright even further (and the high-powered media corporations and media lawyers who support them) like to suggest that those who oppose any extension of the 50-year rule in Canada are in a dwindling minority—that inevitably nations such as Canada will have to step into line with the United States and the EU. In fact Canada is far from alone in having resisted the push by the large corporations to extend copyright restrictions further and further. There are approximately 100 nations who have some form of the 50-year rule in their copyright laws—and that list includes some very significant players (among them China, Japan, South Africa, the Philippines, and New Zealand). In Australia a 2017 Commission recommended reducing that country’s length of copyright protection from 70 years to 25 years after the death of the author. At the moment that seems unlikely to happen—but the very fact that it’s been recommended by a reputable group is an indication of the degree to which the tide is starting to turn.

Canada has shown real courage thus far in standing firm on this issue in the face of pressure from the United States and from large media conglomerates. Let’s not give in

Copyright, the TPP, and the Canadian Election

The message below was composed with the Broadview Press e-list in mind (and sent earlier today). I'll post it here as well, in the hope that it may be of interest to others.

Late last week it became known that the TPP trade agreement would significantly increase copyright restrictions in Canada.

Let me begin by filling in a bit of the background for those who may not be aware of it. The 1990s were a time of triumph for the many large corporations who continually seek to extend copyright restrictions. In 1995 the UK (along with the rest of the European Union) increased the duration of copyright from 50 to 70 years following the death of the author. In 1998, pressed by the Disney Corporation and others, the US followed suit, increasing the duration of copyright in America to 95 years after publication (for works published in 1978 or earlier) and to 70 years following the death of the author (for works published thereafter). Later, Australia and other nations also moved from 50 to 70 years.

But a few holdouts in the developed world remained—Canada and New Zealand among them—and as we have moved further into the twenty-first century it has sometimes seemed that the tide might be turning. More and more people have argued that it is both unwise and unfair to keep works from entering the public domain for more than three generations following an author’s death. Copyright restrictions have an undeniable value when they allow authors to control the rights to their works and to be compensated for the time that has gone into the creative process. Copyright also ensures that publishers are able to justify their investments in the publication and promotion of new books; without the temporary grant of an exclusive copyright license there would be little incentive to create new works. But copyright has always been intended as a temporary license that must be balanced against the public good of a public domain. Unlimited, or excessively long, copyright terms have often kept scholars from publishing (or even obtaining access to) material of real historical or cultural significance. They have severely restricted certain options for university teaching as well. Broadview’s editions of Mrs. Dalloway and of The Great Gatsby (edited by Jo-Ann Wallace and by Michael Nowlin, respectively), for example, are to my mind unrivalled. Each includes far more than just the text itself: explanatory notes, extended introductions, and an extraordinary range of helpful and fascinating background material in a series of appendices. They offer a truly distinctive pedagogical option. But instructors and students in the USA are still not allowed access to those editions.

Currently, we at Broadview are looking at publishing similar editions of works by other authors who have been dead for more than 50 but fewer than 70 years—works such as Orwell’s Animal Farm and 1984, for example; a Broadview edition of such works, with the appendices of contextual materials that are a feature of almost every Broadview edition, would provide highly valuable context for students at all levels. We are also looking forward to January 1, 2016, when we will finally be able to make the superb Broadview edition of The Waste Land and other Poems—with its excellent explanatory notes and extensive range of background material on modernism—available in Canada. (Eliot died in 1965.)

Until now Canada’s government has insisted that it would retain a “made-in Canada” copyright policy. This past week, though, it signed the Trans Pacific Partnership trade agreement.

Nowhere in the information made public by the Canadian government about the TPP are we informed of any change in the 50-year rule. Last Friday, however, the text of the intellectual property provisions was leaked; it has now been revealed that the TPP agreement will force Canada and other countries that had resisted the push toward longer copyright restrictions to fall into line with the American and European Union standards. (The news was revealed on the blog of law professor Michael Geist, with whom I’ve often disagreed over other copyright issues—notably, the appropriate interpretation of the education-related provisions of the Canadian Copyright Act—but to whom we are I think indebted in this instance. See http://www.michaelgeist.ca/2015/10/canada-caves-on-copyright-in-tpp-commits-to-longer-term-urge-isps-to-block-content/ . Here is a link to the full text of the intellectual property provisions in the TPP agreement: https://wikileaks.org/tpp-ip3/WikiLeaks-TPP-IP-Chapter/WikiLeaks-TPP-IP-Chapter-051015.pdf )

If the legislatures of the governments involved ratify the agreement, the public domain will be cut back by a full 20 years in Canada, New Zealand, and Malaysia; those countries will be forced to extend copyright restrictions from 50 to 70 years following the death of the author.

If the TPP is approved in Canada, then, say goodbye to those Orwell and Eliot editions. Indeed, given that the application would appear to be retroactive in Canada, say goodbye to a number of books that we’ve been making available in Canada for some time already; we at Broadview will have to take them off the market until the authors have been dead for the full 70 years. The newly-published Broadview editions of Dorothy Richardson’s Pointed Roofs and The Tunnel? It seems likely that we would be forced to take them out of circulation in Canada until 2027; though the works were published in 1915 and 1919 respectively, Richardson died in 1957.

Looking forward, how significant would the effect be? Let’s look at just one year—at some of the authors who died in 1970, and some of the classic works they published. Among them are Erich Maria Remarque (author of All Quiet on the Western Front, first published in 1929); E.M. Forster, author of A Passage to India, first published in 1924; and Bertrand Russell (author of The Problems of Philosophy, first published in 1912). Under the current law, we could publish Broadview editions of these works on January 1, 2021; even the current law, in other words, creates an effective monopoly in these cases for roughly a century after initial publication. If the TPP is approved, the situation becomes far more extreme. Each of these early twentieth-century works would not enter the public domain in Canada until at least 2040.

And for scholars seeking to publish historically important hitherto-unpublished material that might be controversial and that, for whatever reason, a copyright holder might prefer to keep under wraps? The new rule would be 70 years from date of creation. The Group of Seven artist Lawren Harris died in 1970; under current Canadian law it will become possible to make any of his unpublished papers available to the public at the end of 2020. Under the TPP, a Lawren Harris letter from 1969 that his estate did not wish to see enter the public domain could remain under wraps until the end of 2040.

Everyone has heard a great deal of the TPP provisions regarding auto parts and dairy products. Yet we have been told nothing of a change so important as this on copyright; no doubt the Canadian government is aware that it would not improve its already-low standing in the polls by announcing more restrictive copyright laws.

How many other hidden provisions are there in the TPP? The Canadian election is in less than a week, and we have no idea.

I should perhaps own that I was a supporter (in some respects a reluctant supporter, but a supporter nonetheless) of both the 1988 Free Trade Agreement and the subsequent NAFTA treaty involving Mexico, the US, and Canada. I cannot support the TPP. Justin Trudeau says that he and the Liberals are neither for nor against this deal. Stephen Harper’s Conservatives will continue to defend it vigorously without telling Canadians all the specifics of what is in it. For Canadians opposed to the TPP there are two options available; both the Greens and the New Democrats have come out against the deal. Of these, of course, only the New Democrats have a realistic chance of forming (or being part of) a government.

I now know how I will be voting on October 19.