12 May 2022
Dear Justin Trudeau, Prime Minister of Canada,
he Canadian Historical Association is writing to express its opposition to the proposed amendments to Canada’s Copyright Act as outlined in the recent federal budget.
Under the current legislation the general length of copyright is the life of the creator plus fifty years. The federal government intends to extend that period by twenty more years to bring it in line with copyright law in the United States. These changes stem from the Canada-United States-Mexico Agreement (CUSMA), which basically extends the 1998 US Sonny Bono Copyright Term Extension Act.
Copyright laws are designed to protect the interests of creators; to ensure they can profit from their intellectual property. In theory, these rights encourage creators to create more by ensuring they are the sole beneficiaries of their works, at least for a certain period of time.
Reflecting this intent, Queen Anne’s Copyright Act of 1709 only provided authors with an automatic fourteen-year monopoly that could be extended to twenty-eight years if the author was still alive. This was the “original” copyright law in British North America and the predecessor colonies that eventually formed the United States and Canada.
Extensions to the length of the monopoly have been largely based on making sure creators, and more recently their heirs, benefit for a longer period of time. Increasingly, however, these heirs have been corporations and rather than making sure the creators benefit it appears the goal is to make sure corporations make money.
One of the unintended consequences of copyright law is that it reduces what exists in the public domain.
Under current Canadian law many works created in 1972 are entering the public domain this year. The proposed changes would create a twenty-year break in this process in which no copyrights expire. Given the period in question, the early 1970s to the early 1990s, this break creates a problem for historians of modern Canada.
As it stands, within the fifty-year copyright period, access to personal papers of politicians and others held in public archives can only be accessed after the researcher is vetted by the creator and/or their representative and then given permission. This gatekeeping process is largely due to current copyright law and can serve as a barrier to critical access. Accordingly, it is not unusual for our understanding to see significant revision after the copyright period has elapsed. The addition of twenty more years is therefore significant.
Another unintended consequence of copyright is law is what legal scholar Michael Heller calls the tragedy of the anti-commons (2013) when individual ownership can lead to underuse. Critics of current copyright law often point to Walt Disney and the Walt Disney Company as the prime mover behind recent changes with their rationale being the desire to continue profiting off Walt’s creations.
Current copyright legislation in Canada differentiates several types of creations and creators. Anonymous and pseudonymous works already receive a copyright of seventy-five years from creation and one hundred years from publication and performances, sound recordings, and communication signals have their own part in the Copyright Act.
In sum, the Canadian Historical Association is concerned by the proposed extension of the copyright period. We believe that this extension should be reconsidered, or an exception made for materials deposited by creators in public archives. Failure to do so represents a serious barrier to the study of the second half of the twentieth century.
Steven High, President
Daniel Sims, Council Member- Advocacy