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Canadian Public Domain in 2012: the Trans-Pacific Partnership Negotiations
by Alison Dodd
Easily recognizable: the copyright symbol. Image retrieved from the Wikimedia Commons.
This wiki page will give a brief overview of the state of the public domain as it stands in Canada in early 2012. It will then move on to discuss the Trans-Pacific Partnership Negotiations and how this specific international treaty may affect Canadian intellectual property regulations in future. One thing that is important to keep in mind while reading is that copyright reform is currently underway in Canada regardless of the country’s position on the fringe of the Trans-Pacific Partnership, so the information this wiki draws from is changing daily and thus may end up being outdated sooner rather than later. However, there are a number of resources listed that will remain valuable regardless of the changing nature of the treaty negotiations and copyright bills, so a secondary purpose of this wiki is as a pathfinder to lead the reader to the more constantly updated sources on the topic.
Stakeholders with a vested interest in this topic are information professionals seeking updated information on current Canadian public domain definitions as well as the more common layperson without a background in information science, and as such, this wiki intends to present these issues while remaining clear, concise, and as neutral as possible.
2 As it stands in Spring 2012: public domain in Canada
2.1 Copyright Act of Canada
2.2 Term of copyright
2.3 Anonymous and pseudonymous works
2.4 Posthumous works
3 The Trans-Pacific Partnership negotiations
3.2 Behind closed doors: the effects of secret negotiations on public opinion
4 Canadian context
4.1 What the TPP means for the Canadian public domain
4.2 Canada’s consultation process with the public
5 Current Advocacy
5.1 Internal affairs: Canadian advocates for change
According to the Canadian Internet Policy and Public Interest Clinic (CIPPIC), copyright is “usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” Library and Archives Canada goes on to present copyright as a “bundle of rights, economic and moral, owned by authors” as well as other performers and broadcasters. Copyright regulations have been put in place to attempt to address this issue, and in order for an individual to legally reproduce the work(s) of an author, these regulations must be followed. However, striking a balance between the two ends of the spectrum– the artist and the public, in this case– has proven problematic given the speed that technology changes and the varying needs and desires of both artists and the public. Nothing exists in a vacuum; in order for culture to progress and for artists and authors alike to be able to build upon the works that came before them, it is necessary to create a system that compensates artists fairly while still maintaining an environment of freedom of expression so that culture can be remixed in a variety of ways.
Authored works are protected by copyright for a certain amount of time, and this amount of time differs between countries as long as each country meets the minimum international obligations. Hence, what is considered public domain in one country might not be considered so in another. Regardless of the length of time that the term of protection lasts for, once it is over, these works enter the public domain, wherein they can be freely used and copied by anyone with no threat of legal repercussion. The CIPPIC explains that “public domain material is different from material for which the author has stated that public use is permitted (under, for example, a Creative Commons license), but would otherwise fall under the [Copyright of Canada] Act.” Works that fall under the classification of public domain are there because one of two things has happened: either their term of protection has expired, or they were never protected by an Act to begin with because their subject matter was not considered relevant for protection.
Copyright Act of Canada
The Copyright Act of Canada aims to regulate technological use, so it is only fitting that the Act itself must be changed frequently to keep pace with technological shifts. The Act was initially passed in 1921, almost fifty years after Confederation. In 1921, the Copyright Act of Canada amalgamated the Imperial Copyright Act as well as other components of “other Imperial and Canadian statues”, such as the Criminal Code of Canada. The Act remained largely the same until the 1980s, when it was amended to include Revised Statutes (Chapter C-42) in 1985 and Phase I of Bill C-60 in 1988, which began to take into account perceived problems that were cropping up because of the blossoming computer age. After the 20th century came to a close, further attempts to amend the Act took shape. Bill C-60 (2005) and Bill C-61 (2008) were both met with criticism based on the impression that the bills did not come to a satisfactory balance between the rights of the copyright holders and the rights of the consumers, and both were scrapped when Parliament dissolved for unrelated reasons. Most recently, Bill C-11 was tabled in 2011 and is set to include the amendments proposed in early 2012. It has yet to formally pass but its tabling demonstrates that copyright (and hence, what constitutes works in the public domain) is still very much a hot topic in Canada today.
Term of copyright
Protection under the Copyright Act of Canada is granted for the duration of the author’s life (including the remainder of the calendar year in which the author dies) as well as the fifty years that follow after that calendar year has drawn to a close. Once that term has finished, the work enters the public domain and is freely available for anyone to use. The Copyright Act records this notion under subsection 6 as follows: “The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.” (R.S., 1985, c. C-42, s. 6; 1993, c. 44, s. 58.)
Anonymous and pseudonymous works
In situations where the author of the item is either not known or has been published under a pseudonym, the copyright on the work in question lasts for “the term consisting of the remainder of the calendar year of the first publication of the work and a period of fifty years following the end of that calendar year” or a term that includes the rest of that calendar year of “the making of the work” as well as a period of seventy-five years after that calendar year is over – whichever comes first. However, if the author’s identity is revealed within the parameters of this term, the regulations outlined in Section 6 (see “Term of copyright” above) of the Act apply instead.
Posthumous works describe the works that have yet to be “published, performed, or delivered” during an author’s lifetime but that are released after the author has died – with or without their express consent. The regulations set forth in the Copyright Act of Canada stipulate that if the work in question was created after July 25, 1997, the term of copyright is the same as is outlined in Section 6 of the Act: the remainder of the calendar year in which the author died and the fifty years afterwards. However, if the work was created before July 25, 1997, there are three possible outcomes:
The Trans-Pacific Partnership is effectively a free trade agreement between countries in the Asia-Pacific region. Originally, the agreement signed in 2005 was between Chile, New Zealand, Brunei, and Singapore, but there are currently nine countries that are taking part in the negotiations already and several other countries—including Canada, Japan, and Mexico—aiming to join the partnership. The TPP seeks to liberalize investment between member countries, develop and expand world trade, create clear regulations on a “commercial framework”, and—among other items on the list—”promote the protection of intellectual property rights to encourage trade in goods and services [between members]”. However, in iPolitics columnist Peter Clark’s article titled “Is the Trans-Pacific Partnership a re-writing of NAFTA?”, he declares that “The TPP is not a Free Trade Agreement. It is a Preferential Trade Agreement (PTA) built on discrimination against non-members.” One might argue that this is just a matter of semantics, but the point he seems to be getting at sheds some light on why other countries are trying to align themselves with the partnership rather than stray away from it: there are benefits to being part of an exclusive alliance rather than on the outskirts of it. Despite the potential trade benefits and boost to international relations, the stakes of negotiating membership may be too high in other ways– especially for Canada’s intellectual property regulations and its effects on public domain, as will be discussed below– for comfort.
Behind closed doors: the effects of secret negotiations on public opinion
One of the issues critics take with the Trans-Pacific Partnership negotiations is the amount of secrecy prior to the release of the draft copies of their regulations. This “behind closed doors” level of confidentiality is certainly not exclusive to the TPP, but one would hope that as international agreements move forward into the 21st century they would also begin to embrace a certain amount of public consultation before the drafts are released (or leaked, as the case was the TPP’s chapter on intellectual property rights in February 2011. Over at Ars Technica, Nate Anderson writes that, “… negotiators still insist of shielding their work from the public, even on matters of increasing public concern, such as digital copyrights. And each agreement they negotiate mysteriously ends up just a bit tougher than the one before it… people want meaningful access to TPP documents before the draft text has been so worked over that no substantive change is possible.” This lack of external discussion before the TPP chapter on intellectual property was leaked led to some amount of public outcry over the proposed changes to intellectual property rights, restrictions, and punishments for infringement. Currently, proposals “are under discussion on many forms of intellectual property, including trademarks, geographical indications, copyright and related rights, patents, trade secrets, data required for the approval of certain regulated products, as well as intellectual property enforcement and genetic resources and traditional knowledge.” These changes will have varying implications for the other countries involved in the Trans-Pacific Partnership but would mean a significant overhaul of even the changes in the proposed Bill C-11 in Canada.
What the TPP means for the Canadian public domain
Although the TPP negotiations are not just about intellectual property (and subsequently, the public domain), discussions on IP do remain a core component of the regulations that will be created and enforced by the negotiating parties. This is problematic for Canada for a number of reasons. In his November 30, 2011 blog post, information policy guru Michael Geist alleges that if “Canada were to ratify the TPP, it would require another copyright bill to undo much of what the government is about to enact with Bill C-11.” He goes on to list the consequences (related to intellectual property) that would take place should Canada join the TPP negotiations as they stand now:
In a separate blog post, Geist goes on to give a list of Canadian authors whose works would not be able to enter the public domain for yet another 20 years after the date they are already scheduled to do so. The list includes such authors as Marshall McLuhan, E.J. Pratt, Gwethalyn Graham, Gabrielle Roy, and Hugh Garner – and many more. The list provided by Geist is by no means an exhaustive one, but it is important to recognize that these proposed changes designed to overhaul current intellectual property regulations would also push back the date that these works become available under a public domain license by a significant margin. Access to Canadian literature would certainly be negatively affected with no benefit to the authors themselves, for they have been deceased for over half a century at this point. Even the Supreme Court agrees with this sentiment: as Meera Nair’s January 8, 2012 blog post states, back in 2002 Justice Binne said that “[e]xcessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole.”
Canada’s consultation process with the public
As mentioned previously, the Trans-Pacific Partnership negotiations have come under fire for their pre-draft international secrecy. However, the Canadian government has taken the commendable approach of requesting public consultation and advice from citizens regarding the country’s potential entrance into the negotiations. They issued the following statement on December 31, 2011: “The Government is embarking on a public consultation process to allow all interested stakeholders an early opportunity to provide comments, input and advice on possible free trade negotiations with TPP countries… It is essential that the Government of Canada be fully aware of the interests and potential sensitivities of Canadians with respect to this initiative. We welcome advice and views on any priorities, objectives and concerns relating to possible free trade negotiations with TPP countries.” The consultation process lasted until February 14, 2012. It was not limited to the topics of intellectual property and public domain, although Michael Geist and others strongly encouraged Canadians to make their voices heard on those specific subjects. Prior to the open consultation process, CBC News held an informal poll titled “Should Canada enter the Trans-Pacific Partnership Deal?”. While this poll may not have affected the consultation process results directly, it may have raised public awareness prior to the consultation period and encouraged more Canadians to write in with their feedback and suggestions on how to move forward.
There are a number of citizen groups and researchers working to critically examine the effects that the TPP negotiations could have on both those inside and outside of the deal. Internationally speaking, there are several citizen groups that have been working to shift public opinion away from supporting the TPP negotiations for a variety of reasons that include but also go beyond the copyright and intellectual property concerns discussed here. Three such groups are as follows:
Internal affairs: Canadian advocates for change
Dr. Mark Akrigg : Best known for founding, developing, and maintaining Project Gutenberg Canada, Mark Akrigg has voiced his concerns on the issues surrounding term of copyright extensions and subsequently, Canada’s involvement with the Trans-Pacific Partnership negotiations. Project Gutenberg has been available since 2007 and is a freely available repository of ebooks that fall within the realm of the public domain in Canada; users outside of Canadian soil are advised to check their own country’s policies on works in the public domain before downloading files from the site. As Akrigg says regarding his own mission: “The site has been very successful, and our volunteers have now produced nearly 400 ebooks, which can be viewed at and downloaded from http://gutenberg.ca. We offer our books at no charge, in HTML and plain Text formats. We use these open, public formats, with no digital rights management software, to ensure that our readers will never have to use proprietary software, and that these ebooks will never become obsolete. In particular, our Text versions are designed to be displayable on any computer with a display device, now or centuries from now.” With this service model in mind, Akrigg has commented extensively on the topic of Canadian public domain, both on his own website and on the Canadian Copyright Consultations page. Akrigg encourages his supporters to get involved and to speak out on the topic. More information about how to do so effectively can be found on the Project Gutenberg main website. On the Copyright Consultations page (written in 2009 but not revoked at any point later), Akrigg lists a number of provisions that should be adopted instead of the strict and problematic regulations enforced by the TPP. Additionally, on his own website, he brings up the following points, all of which are very much worth considering:
“The copyright extensions proposed as part of the Trans-Pacific Partnership are an unacceptable infringement of Canada’s cultural sovereignty. The TPP must not be used by other countries to impose their copyright systems on Canada.
The intellectual property chapter and other sections of the TPP disqualify it in its current form as a free trade agreement. It must be considered a managed trade agreement that is contrary to Canada’s interests.
The benefits of the TPP minus its huge disadvantages can be obtained through the relatively straightforward and uncontentious process of negotiating a genuine free trade agreement with Japan.”
Michael Geist : With a history and education primarily in law, Michael Geist is one of Canada’s leading information and technological specialists. He blogs over at michaelgeist.ca and contributes weekly columns to the Vancouver Sun, the Ottawa Citizen, and the Toronto Star. Geist has continually been an advocate of fair dealing when it comes to balancing citizen and corporate/governmental interests and encourages individuals to speak out against copyright reform that will likely lead Canada away from taking a leadership role on digital rights management—and digital culture in general– in the future. More specifically with regards to this wiki’s topic, he maintains the website http://www.speakoutoncopyright.ca/, where he provides opportunities for concerned citizens to get involved with promoting positive change. Geist has documented his concerns with the Trans-Pacific Partnership a number of times (as mentioned within earlier subsections of this wiki). He considers Canada’s entrance into the partnership a hasty, poorly thought out plan with drastic legal and political ramifications for both the government– as it tries to match an even stricter copyright stance on par with other countries in the partnership—and the everyday citizen. One of his skills of note is how he is able to parse a proposed bill into both its positive and negative aspects and then translating that knowledge and understanding into language that a layperson can easily understand. If you are interested in getting involved and trying to prevent these types of over-reaching copyright reforms from happening within Canada, Michael Geist’s blog and Canadian copyright page are both great places to start.
1.↑ “Copyright Law,” Canadian Internet Policy and Public Interest Clinic, last modified September 9, 2008, http://www.cippic.ca/copyright-law/#faq_copyright-bargain.
2.↑ “Copyright,” Library and Archives Canada, last modified May 1, 2008, http://www.collectionscanada.gc.ca/notices/016-200-e.html.
3.↑ “Copyright Law,” Canadian Internet Policy and Public Interest Clinic, last modified September 9, 2008, http://www.cippic.ca/copyright-law/#faq_public-domain.
4.↑ “Copyright Law,” Canadian Internet Policy and Public Interest Clinic, last modified September 9, 2008, http://www.cippic.ca/copyright-law/#faq_public-domain.
5.↑ “Chronology of Canadian Copyright Law,” Russell McOrmond, last modified March 26, 2011, http://www.digital-copyright.ca/chronology.
6.↑ “How long does copyrights last?,” Canadian Intellectual Property Office, last modified February 13, 2012, http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03323.html.
7.↑ “Consolidation Copyright Act: R.S.C., 1985, c. C-42,” Minister of Justice [Canada], last modified February 7, 2012, http://laws-lois.justice.gc.ca/PDF/C-42.pdf: p.14.
8.↑ “Consolidation Copyright Act: R.S.C., 1985, c. C-42,” Minister of Justice [Canada], last modified February 7, 2012, http://laws-lois.justice.gc.ca/PDF/C-42.pdf: p.15.
9.↑ “How long does copyrights last?,” Canadian Intellectual Property Office, last modified February 13, 2012, http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03323.html.
10.↑ “How long does copyrights last?,” Canadian Intellectual Property Office, last modified February 13, 2012, http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03323.html.
11.↑ Rachelle Younglai and Pablo Garibian, “Canada, Mexico ask to join pan-Pacific trade talks,” Reuters, last modified November 13, 2011, http://www.reuters.com/article/2011/11/13/us-apec-canada-tpp-idUSTRE7AC12B20111113.
12.↑ Trans-Pacific Partnership, “Trans-Pacific Strategic Economic Partnership,” accessed February 29, 2012, http://www.mfat.govt.nz/downloads/trade-agreement/transpacific/main-agreement.pdf.
13.↑ Peter Clark, “Is the Trans-Pacific Partnership a rewriting of NAFTA?,” iPolitics, last modified January 10, 2012, http://www.ipolitics.ca/2012/01/10/peter-clark-is-the-trans-pacific-partnership-a-re-writing-of-nafta/.
14.↑ Nate Anderson, “Beyond ACTA: next secret copyright agreement negotiated this week—in Hollywood,” Ars Technica, last modified February 1, 2012, http://arstechnica.com/tech-policy/news/2012/02/beyond-acta-next-secret-copyright-agreement-negotiated-this-weekin-hollywood.ars.
15.↑ “Enhancing Trade and Investment, Supporting Jobs, Economic Growth and Development: Outlines of the Trans-Pacific Partnership Agreement,” last modified November 12, 2011, http://beehive.govt.nz/sites/all/files/TPP_broad_outlines%20.pdf.
16.↑ “The Copyright Costs of Joining the TPP: Extending Bill C-11 With More Digital Locks & Penalties,” Michael Geist, last modified November 30, 2011, http://www.michaelgeist.ca/content/view/6176/125/.
17.↑ “The Copyright Costs of Joining the TPP: Extending Bill C-11 With More Digital Locks & Penalties,” Michael Geist, last modified November 30, 2011, http://www.michaelgeist.ca/content/view/6176/125/.
18.↑ “TPP Copyright Extension Would Keep Some of Canada’s Top Authors Out of Public Domain For Decades,” Michael Geist, last modified January 9, 2012, http://www.michaelgeist.ca/content/view/6226/125/.
19.↑ “A short lived celebration,” Meera Nair, last modified January 8, 2012, http://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/.
20.↑ “Government Notices: Department of Foreign Affairs and International Trade,” Canada Gazette [archive], last modified December 31, 2011, http://canadagazette.gc.ca/rp-pr/p1/2011/2011-12-31/html/notice-avis-eng.html#d106.
21.↑ Michael Geist, “Like Ernest Hemingway? Help Preserve Canada’s Public Domain,” Huffington Post, last modified January 10, 2012, http://www.huffingtonpost.ca/michael-geist/copyright-law_b_1196654.html.
22.↑ Community Team, “Should Canada enter the Trans-Pacific Partnership trade deal?,” CBC News, last modified November 16, 2011, http://www.cbc.ca/news/yourcommunity/2011/11/should-canada-enter-the-trans-pacific-partnership-trade-deal.html.
23.↑ “The Trans-Pacific Partnership Digest,” University of Auckland School of Law, last modified March 21, 2012, http://tppdigest.org/.
24.↑ “About Public Citizen”, Public Citizen, last accessed March 29, 2012, http://www.citizen.org/Page.aspx?pid=2306.
25.↑ “Archived – Project Gutenberg Canada,” Copyright Consultations, last modified March 1, 2010, http://www.ic.gc.ca/eic/site/008.nsf/eng/01390.html
26.↑ “The Canadian Public Domain under threat,” Dr. Mark Akrigg, last modified Feb 12, 2012, http://gutenberg.ca/documents/tpp-comment-markakrigg-120212.html