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.