The Ten Thousand Year Blog
Webjots that pickled my fancy from July 2002 (and maybe deeper into the past) until today, whenever now is, until beyond tomorrow, whenever that may come. Electronic Records and Digital Preservation is now a category. Blogroll Me!

Friday, May 23, 2003
> Fighting for the Canadian public domain

What is going on here? is the question anyone who knows the recent history of changes to Canadian copyright legislation must be asking right now. The Government of Canada introduced in the 37th Parliament, 2nd Session, a bill, C-36, "An Act to establish the Library and Archives of Canada, to amend the Copyright Act and to amend certain Acts in consequence."

I wrote to my MP, as well as Heritage Canada Minister Sheila Copps, the sponsoring minister, and Industry Canada Minister Allan Rock, the minister responsible for the Canadian Intellectual Property Office, opposing the amendment to the Copyright Act.

My grounds for doing so are that we had this debate beginning in the mid-1980s when a former government released the White Paper on Copyright "From Gutenberg to Telidon." That document recommended the elimination of perpetual protection for unpublished literary works. Since that was too radical a step, a series of transitional provisions were eventually enacted when the Copyright Act was finally amended in 1997 to accommodate that aspect of the white paper.

So I asked the Hon. Members, what's changed since 1998 when the transitional provisions came into force that it's now necessary to further extend copyright on unpublished literary works on authors, or anyone for that matter who's left unpublished written material behind in an archives, who died both before January 1, 1930 or after December 31, 1929 and before January 1, 1949. 

Here's the full breakdown as I understand them from the amendment:

  • For authors who died before January 1, 1930 and whose work was not published prior to December 31, 2003, copyright expires at the end of this year.
  • For authors who died before January 1, 1930 and whose work was published between December 31, 1998 and January 1, 2004, copyright will exist on those works for 20 years following the end of the calendar year between 1998 and 2004 in which the work was published.
  • For authors who died after December 31, 1929 and before January 1, 1949, regardless of whether the work was published or unpublished up until January 1, 2004, copyright remains in effect until December 31, 2017.
  • And for authors who died after December 31, 1929 and before January 1, 1949, if their work is published before December 31, 2017, the work receives an additional 20 years of copyright protection.

So the literary heirs to the estates of famous individuals such as Lucy Maud Montgomery (d. 1942), Emily Carr (d. 1945), Stephen Leacock (d. 1944), and Charles G.D. Roberts (d. 1943), can all delay publication of unpublished works until 2017 and receive protection until December 31, 2037!

Whatever happened to the principle of equal treatment under the law and the basic principle of Canadian copyright law, Life of the Author + 50 Years? In the case of someone like Emily Carr, who left no family, unpublished literary works, if this ill-conceived legislation passes, could receive protection if not published until 2017, for an additional 42 years (2037 - 1995 = 42). That's almost a century in total since she died (2037 - 1945 = 92 years)! We might has well have left the perpetual protection of unpublished Canadian literary works in place, for all the good the 1997 amendment did.

Another inequitable aspect of this amendment is that it provides the literary heirs of those authors who died between 1930 and 1948 with an unfair advantage, since their works are protected for longer than authors who died in or after 1949. The works of those individuals, regardless of how much economic benefit they saw from their writings, will still only be protected for 50 years after their death.

Take Robert W. Service, the famous poet of the Yukon. He died in 1958 and under the present law, the principle of life plus 50 years will apply. So his published works will enter the public domain in 2008. His unpublished works, under the 1997 Copyright Act Amendment, will enter the public domain on January 1, 2049.

You'll find additional information on Industry Canada's Copyright Reform Process page, including a link to outside consultant Wanda Noel's report Copyright Protection in Unpublished Works: Final Report (April 23, 2002; ISBN 0-662-33633-X).

It's interesting that the historians, archivists and archives appear to have caved in to the Writers' Union of Canada on an issue that had previously been settled by the 1997 Copyright Act Amendment. Supposedly, this new amendment will help stimulate Canadian culture, but I expect it will have an opposite, detrimental effect.

I don't expect to get an answer to my e-mails, but I'd encourage those of you who are concerned, as I am, about the continuing erosion of the "public domain" as embodied in the Copyright Act to write your MPs and express your opposition to this amendment. Naturally, I realize I should have been paying attention, but so too should have the literary heirs to L.M. Montgomery's estate when this issue was originally debated over the decade between the mid-1980s and mid-1990s.

© 2003 David Mattison
Last Update: 7/13/2003; 11:45:01 AM

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