Mouse in the House:; [National Edition]

Howard Knopf. National Post. Don Mills, Ont.: Jun 7, 2003. pg. FP.11

Howard Knopf is a copyright lawyer with Macera & Jarzyna LLP in Ottawa.
A new bill in Ottawa appears set to adopt U.S.-style copyright term
extension. Among other things, it will curb the study of Canadian
history
There is a mouse in the House of Commons hiding in a certain Bill C-36
that is ostensibly about merging the National Archives with the
National Library. Whether or not this merger is a good thing, it may
be overshadowed by copyright provisions buried inside this bill that
would postpone or deny the right of Canadians to hear their stories
for several decades. Copyright term extension, a very unwise American
concept perfected by the Walt Disney Company in the name of Mickey
Mouse himself, is coming to Canada.
On June 3, I testified to the House of Commons heritage committee on
my own behalf and on behalf of Professor J. L. Granatstein, preeminent Canadian historian and former director and CEO of the Canadian
War Museum. He has done definitive and comprehensive work on Canada's
military and political history covering the very period that this bill
would most affect. This bill would restrict his further research and
publication.
Lucy Maud Montgomery died in 1942. Her copyrights in her published
works ran out, of course, in 1992, 50 years after her death.
Nonetheless, through other intellectual property means using the Trademarks Act, the Anne of Green Gables machine continues to generate lots
of money.
But now, Montgomery's heirs have convinced the Canadian government to
extend the copyright term in her still unpublished works for much,
much longer, in fact up to 96 years after her death. The heirs would
make even more money. So, why is there a problem?
Simply because much more than Montgomery's estate is at stake.
Canadians would have to wait another 14 to 34 years to get reasonable
access to historical material in various estates of public persons who
may wish to suppress it, to lock it up through publication effectively
restricted by technological protection measures, or to price it so

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high as to effectively limit access, using the powerful weapon of
copyright law. This would hardly help Canadians to tell their stories.
The bill would rewrite legislation passed just five years ago.
Examples of dead persons affected include:
- R.B. Bennett (d. 1947), prime minister of Canada during the
Depression, who died a viscount in his bathtub living in splendid
upper-class retirement in England.
- Sir Robert Borden (d. 1937), prime minister of Canada from 1911 to
1920 through the Great War and opponent of Laurier on reciprocity with
the U.S.A., Canada's perennial issue.
- Sir Wilfrid Laurier (1841-1919). Legendary prime minister of Canada.
Any of his unpublished works could now have protection until 2024 if
first published before the end of this year.
- Stephen Leacock (d. 1944), Canadian educator, economist biographer
and legendary humorist and chronicler of Canada's earlier soul.
- Archibald Stansfeld Belaney, a.k.a. Grey Owl (d. 1938) writer,
conservationist and wannabe aboriginal.
These amendments could set the stage for a U.S. style copyright
extension movement in Canada. Recently, the Walt Disney Company
persuaded the U.S. government to extend copyright terms for 20 years,
a move condemned by countless academics, researchers and Nobel prize
winning economists who care about public policy. Term extension is
simply about money for heirs and shareholders. It provides no
incentive to dead or even living creators. In fact, it creates serious
deadweight losses to society in terms of increased research costs,
denial of access, and the sterilization of creativity itself.
Bach copied from Vivaldi and Disney copied from the Brothers Grimm,
Kipling and Hugo. Now, the Disney empire wants to postpone the
participation of others in this paradigm for as long as possible.
The study of history will be seriously affected, and thereby the
evolution of history itself. As Santayana said, those who cannot
remember the past are condemned to repeat it. This bill could

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seriously hamper research and publication on such crucial figures as
Borden and Bennett, according to Prof. Granatstein.
Under U.S. law, the still unpublished writings of a dead author were
protected until Dec. 31, 2002, or 70 years after death, whichever
comes later. So, any unpublished work of John F. Kennedy will enter
the public domain no later than 2033, even allowing for the 20-year
Mickey Mouse extension. Why should Canada have to wait until 2038 for
all the works of Robert Borden, who died in 1937, to enter the public
domain?
We did figure it out, or so it appeared, in 1997 with the passage of
the Bill C-32 copyright amendments, which were blatantly Hollywood,
record industry and publisher friendly. Mostly, the other provisions
of the legislation were harsh to academics, researchers, archivists,
librarians and the Canadian educational system, all of whom seemed
willing to settle for far less than their U.S. counterparts.
Now Canadian Heritage Minister Sheila Copps wants to rewrite the 1997
legislation to give even more to the estates of dead authors and their
publishers and to offer, in return, the easing of certain
administrative burdens on archivists. Frankly, they should never have
been imposed, and were inconsistent with sensible notions of fair
dealing, which should have been addressed in the 1997 amendments and
should now be addressed, indeed redressed, as soon as possible.
The consultations on the current proposals were minimal and all but
hidden. A consultant's report was "published" early in 2003, and even
those who knew about it were given only a few days to comment. This
report was devoid of sufficient detail, and totally lacked any
international comparative analysis as required by the issues.
The institutional academic community in Canada appears to have been
either unaware or indifferent to these issues. Many distinguished
Canadian historians and others who need to deal with the past are
simply not aware of these proposals.
Some writers support the Montgomery estate's position. They suggested
to the heritage committee this week that posthumous publishing of
Canadiana will take place abroad if the bill doesn't pass. However,
this seems unlikely, for legal or economic reasons; the market for

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posthumous Canadiana is very limited outside Canada.
The copyright provisions extending terms should be excised from Bill C36. They should be dealt with in the context of overall review of the
Copyright Act, as required by the legislation and as delayed by the
government itself.
The process behind this bill raises discomforting questions. Is this
the beginning of U.S.-style law-making, involving obscure "rider"
provisions attached to legislation to which there is little or no
connection? Just two weeks before this bill was introduced, I was on a
panel with a senior official from Canadian Heritage at Fordham
University in New York on April 24, 2003. He was telling a group of
influential Americans about what was coming in Canadian copyright. He
did not mention this bill or even this issue. It came as complete
surprise to me and many others when it was introduced on May 8.
We are witnessing an "everyone for themselves" rush to patchwork
copyright revision, with no overall plan intact. Photographers have
also just managed to have introduced a term extension bill in the
Senate, Bill S-20, which apparently has Minister Copps' support. The
music industry wants to rush ahead with the implementation and
ratification of certain controversial treaties. There are also lots of
folks who would love to rewrite or repeal aspects of the 1997
legislation, so the fate of these special-interest bills will be
watched very closely.
Bill C-36 is on an apparently, though unaccountably, fast track and
may become law soon, despite far more urgent business before
Parliament. If it must and if it does, it should be without the
unnecessary and problematic copyright provisions that were all too
quietly included.