IP Scholars’ Submission to the Copyright Term Extension Consultation

After a longstanding rejection of copyright term extension beyond the international law standard of life of the author plus 50 years, the Canadian government caved to pressure from the United States and agreed, in Article 20.62 of the Canada-US-Mexico Trade Agreement (CUSMA), to extend the term of copyright to life of the author plus 70 years. Canada negotiated a 30 month transition period to allow for consultation on how to implement that commitment.

On February 11, the Government launched a rushed consultation, inviting comments to be submitted within mere 20 working days, which it later extended until the end of March. I am very proud to be a part of a group of Canadian IP scholars who filed a joined submission on this highly important matter. The group includes Carys Craig, Lucie Guibault, Graham Reynolds, Bita Amani, Sara Bannerman, Pascale Chapdelaine, Myra Tawfik, and Sam Trosow.

As we note at the beginning of our submission, the duration of copyright is a matter of enormous importance to the Canadian public and the stakes are high indeed. By providing an unreasonably truncated time period for submissions (even with the last-minute extension to the initial deadline), the process has been skewed in favour of stakeholders who can readily invest time and money in crafting rapid responses (likely those with an economic interest in expanded copyright protection) while the citizens, educational, cultural, and public institutions who stand to bear the brunt of the costs imposed by copyright’s expansion have little chance of participating. Such a short consultation period—particularly in the midst of a global pandemic that has overburdened many of us with increased workloads and childcare responsibilities—ensures that few people will have the opportunity to make meaningful submissions. On a matter of such seriousness, this is unfortunate, exclusionary, and frankly unacceptable.

We urged the Government not to proceed with a rushed extension of copyright term without first undertaking an appropriate and fulsome consultation, evidence-gathering, and careful consideration of every available option for mitigating the significant economic and cultural costs of extending the duration of copyright (including the option of requiring registration for the surplus CUSMA term, which the Consultation Paper has dismissed without good reason). As we explain, such an approach is not merely consistent with sound democratic and evidence-based policymaking but is also vital to ensure the compatibility with the Canadian Charter of Rights and Freedoms.

In the rest of our submission, we explain:

• The impact of copyright term extension on the users’ freedom of expression, and therefore the need to ensure minimal impairment of free expression if term extension is to be consistent with Canada’s constitution and international commitments;
• The impact of the copyright term extension on the public domain, and therefore the need to take appropriate ancillary measures to ensure that access to and reuse of protected works are not impeded beyond what is strictly necessary; and
• The options available for mitigating the significant economic and cultural costs of extending the duration of copyright, including a registration requirement for the CUSMA Supplementary Term (which we urge the Government to consider as a preferred option that is compatible with Canada’s international and constitutional commitments).

You can read our full submission here.