New NAFTA Would Harm Canadian Copyright Reform and Shrink the Public Domain

Timothy Vollmer

Late yesterday the U.S., Canada, and Mexico reached an agreement on a new North American Free Trade Agreement (NAFTA). The agreement (now rebranded as the U.S.-Mexico-Canada Agreement, or “USMCA”) obligates Canada to increase its copyright term by an additional 20 years if the deal is passed.

Canada currently observes the minimum term of copyright as required by the Berne Convention, which is life of the author plus 50 years. USMCA requires all signatories to agree to a term of at least life of the author plus 70 years.

The extension of already-lengthy copyright terms will discourage new creativity in Canada. It will further prevent Canadians from accessing and using the rich pool of resources in the public domain, which means they can be used free of any copyright protections. Creativity always builds upon the past, and the public domain is our shared cultural commons used to create new works of art and science. Like a sedimentary rock, the “Commons” in Creative Commons starts with the public domain. Fulfilling our mission of protecting and expanding the public domain is why we’ve developed tools to better mark and dedicate content to the public domain. We continue to advocate for changes to copyright policy that promote a robust and accessible public domain.

During the opaque renegotiation of NAFTA, we urged negotiators to ensure that the copyright provisions in the agreement should not be expanded to create new (and likely more onerous) copyright rules. We worked with international groups to release the Washington Principles on Copyright Balance in Trade Agreements to restate the obvious fact that further copyright term extensions make no sense: “there is no evidence to suggest that the private benefits of copyright term extensions ever outweigh the costs to the public.”

The end of copyright protection in a work allows for the production of new works. That is why term length is a balance to be struck — and one which Canada has handled well. Ian Fleming’s literary character James Bond, for example, entered the public domain in Canada on January 1, 2015. This allowed Canadian authors David Nickle and Madeline Ashby to produce License Expired, an anthology of unauthorized 007 stories for ChiZine Publications.

The introduction of the life +70 year copyright term is particularly damaging for Canada, which is in the middle of a national copyright reform process. Before these negotiations took place, an increase in copyright term was not  on the agenda for the Canadian reform. Last year, Canadian ministers responsible for the copyright review indicated some support of the public domain, stating that an updated law “should ensure […] that users benefit from a public domain.” In our submission to the public consultation, we wrote:

We believe that Canada has been right to push back against any extension of copyright term or expansion of the scope. The copyright term of life of the author + 50 years is already far too long. Extremely long copyright terms prevent works from entering the public domain, where they may be used by anyone — including CC licensors — without restriction as the raw material for additional creative works.

If the USMCA is adopted, it will clearly violate the direction of the Canadian copyright reform, which decided to leave the existing term as is.

The USMCA text shows the powerful hand of U.S. copyright interests. A copyright term extension was floated in earlier versions of the Trans-Pacific Partnership, and Creative Commons joined with dozens of other organisations to push back on it then. After President Trump withdrew the United States from the TPP last year, many of the most damaging intellectual property provisions were suspended, including any call for a copyright term extension. But USMCA shows a swing back in the other direction, almost surely a result of U.S. pressure to ratchet up copyright protection and enforcement measures.  

There are countless competing interests in a massive new trade agreement like the USMCA, and this concern is only one. But from a copyright perspective, it is discouraging to see the inclusion of yet another ill-advised term extension, especially at a time when Canada is actively debating a more progressive future for its own copyright law.

There is no reason for any more copyright term extensions, which would harm the commons and are contrary to the policies and values supported by the Creative Commons community.