Giving artists longer control over their work benefits us all

Celebrating the extension of copyright term in Canada, and debunking ridiculous objections.

Published in the Toronto Star, January 19, 2023

Why are Canadian artists accused of harming culture whenever something good happens to our careers? Sounds backwards, doesn’t it? And yet, here we go again.

In December, Parliament extended the term of copyright protection in Canada, from 50 years after an author’s death to 70 years. That’s an extra two decades of value for artists to negotiate within professional agreements and contracts.

The change brings Canadian cultural workers into alignment with our colleagues in the United States, the U.K., and almost all other major trading partners. Essentially, Canada upgraded to a new global standard for copyright terms. Good stuff.

Artists here are now on even ground in international sales, and no longer enter those transactions at a competitive disadvantage. These are all positive outcomes, with zero downside. In fact, I’d argue it’s impossible to find a net negative for Canada in this legislative change.

And yet, in these very pages last week, a librarian from Queen’s University complained about copyright like it was a biblical plague upon consumers.

It will limit library digitization!

Readers won’t be able to get old books!

Only a few artists will benefit, while all cultural consumers will “lose!”

These fear-based attacks on artists’ rights are pure fantasy, and should all be read as … but now we can’t have everything for FREE (frowny-face emoji).

Please. Every single cultural professional in Canada benefits from a copyright term extension. And when artists benefit, so too do audiences, collectors, and readers. A healthier cultural economy means more culture.

Longer copyright terms increase the value of our work to legitimate follow-on creators who want to license those rights. Yes, yes — not for free — but that’s called commerce, and it’s a good thing. Or are artists expected to ignore the economy? Are we to eat accolades and pats on the back?

This copyright term extension is good for Canada. It deepens the value of our artistic estates, which continue to give back long after an artist has passed away. I know of many artistic estates left to charities and not-for-profits, which benefit for decades from continued sales and licensing.

Creative earnings are thus recycled to the benefit of hospitals, social justice causes, the unhoused, students, people living in poverty, and even struggling artists. Why would anyone want such benefits to stop?

All the panic-stricken “harms” attached to copyright boil down to a short-sighted discomfort with seeking permission or paying a fee. Digitization of out-of-print work is ongoing under copyright protection. In fact, it’s often done by authors themselves. Access to older works is entirely possible — it may just come at a small price. Libraries should partner with authors; not seek to weaken their rights.

Let’s stop equating payment for culture with harm or loss. That’s cheap rhetoric, and an insult to cultural labour.

John Degen is a poet and novelist with three published books. He is chief executive officer of The Writers’ Union of Canada.

Here We Go Again

Canada’s Anti-Copyright Crusaders Play Games and Spread Panic

Super Mario (TM) chess image courtesy me and my little camera. This silly game is way more complex and nuanced than anything you’ll see from the anti-copyright side.

Lately, the Copyright Act has been getting a bit of positive attention in the media, which means I’ve had to do a LOT of explaining to media about how I view this complicated, poorly understood, but crucial law. Inevitably, that means I also have to counter many of the simplistic and naïve anti-copyright myths that spread like contagion whenever a nuanced understanding of the law is required.

Canada has a small but loud anti-copyright brigade – mostly well-paid academics or lawyers (or both) in thrall to the legend of Big Tech and the idea that the digital era is going to “liberate” the world’s knowledge, creating some sort of all-knowing paradise for us all.

How’s that working out? Cough, cough… Facebook, Twitter, Google?

So, with long-overdue copyright term extension and repair of Canada’s decade-long educational copying fiasco both being mentioned in the recent federal budget, the anti-copyright batshit signal shone out in the night, and the usual suspects dusted off their utility belts of rhetoric for another run at the misinformation game.

Pay no attention to the man behind the curtain

First up, occasional law professor, fulltime self-promoter, and prolific blogger Michael Geist. History instructs that Geist must be first out of the gate on these things, because what are the others going to say if they don’t have Geist’s lead to follow?

An established way of spreading myths about copyright is to suggest that any progressive copyright changes that help artists have been done in secret at the behest of greedy lobbyists. Those of us familiar with these rhetorical games call this gambit “geisting the facts,” and our man does not disappoint. Very soon after the budget’s release, Geist starts talking on his blog about “Budget 2022’s Hidden Copyright Term Extension.” [emphasis mine]

Hidden? Hmmm. Just how would a government go about hiding proposed legislative actions in a highly-scrutinized public document like Budget 2022. Do they have some sort of secret invisible-text function none of us are aware of?

The copyright term extension is so well hidden, in fact, it appears for anyone to see on page 274 of the Budget under the heading Proposed Legislative Action. I found it almost immediately, and I’m not really that fast a reader. I know Geist is some sort of recognized expert on technology, so I assume he’s aware of document search functions. He didn’t even need to read to page 274. He could have just searched for “copyright term extension” and… voila, not hidden at all.

No such thing as bad student; only bad teacher

And yet, the myth of the hidden copyright change gained some traction. A week after that first suggestion of subterfuge, Geist-adjacent lawyer Howard Knopf expanded on the myth, blathering that term extension “is deviously hidden at page 274 in Annex 3 in a manner so as to avoid detection, debate and the democratic process itself.”

Left in plain sight for anyone to read? That is devious — diabolical even. I can’t believe more governments haven’t thought of hiding their intentions by very publicly announcing their intentions.

Knopf actually gains points in this anti-copyright Super Mario (TM) chess match by asserting the government “caved in to greedy lobbyists to the detriment of democracy.”

Greedy lobbyists! Everybody drink!

Full disclosure, I am a registered lobbyist, and a lot of my lobbying in Ottawa is related to copyright reform and repair. That’s all a matter of public record because I register and declare every single meeting I have on the subject with the government, all of which is on the public record (see image below). Am I greedy? If I am, I picked the wrong industry to lobby for, that’s for sure.

You know who else has a LOT of contact with government on the topic of copyright — Michael Geist. I know this because his name comes up an awful lot in my own meetings, and I am often told he’s already been in touch with the person I’m there to see. But try searching his name in the lobbying database, and see what comes up. Nada (see image below). It’s almost as if his contact with government on this file is… what’s the word?... hidden, or secret.

Enter the mouse

No copyright fear-mongering is complete without a throwaway reference to Walt Disney, so full points to practiced geister, Meera Nair, Copyright Specialist for the Northern Alberta Institute of Technology (NAIT), who gets right to some point or other in her blog about the budget. “Lengthening copyright term will please the likes of Disney…” she writes, presumably because there’s nothing scarier to the anti-copyright crowd than a cartoon mouse? Rather than detailing any actual problems with term extension, she throws back to her rhetorical guide. “Michael Geist has described some of the harm that will be inflicted on Canadians.”

Harm? What harm? Geist actually tries to convince us that it will be writers who suffer from having “their works locked out of the public domain,” and being “lost for a generation” as though that’s an actual thing that’s possible. I mean, two of the authors he mentions, Marian Engel and Margaret Laurence were early Chairs of The Writers’ Union of Canada, and copies of all their books are widely available in stores and libraries across the country but, okay, they will cease to exist as soon as the copyright term is extended.

What nonsense.

Side-note: if an anti-copyrighter can work in reference to a lock, chain and/or prison, they advance to GO on the, um, chessboard, so well done professor.

These fear-mongering games are silly and seemingly without end. One can only hope that after years of being continually harangued with them, the actual decision-makers in Ottawa can now see them for the smokescreen they are. I mean, these jokers have made making shit up about copyright law their full-time pursuits, so it’s not like they’ll stop anytime soon. People just have to improve their filters. We all need to get better at knowing when we’re being geisted.

The great geisting

Final, and most egregious, case in point. In his latest attack on copyright term extension, Geist tries to show that even prominent artists don’t like the idea. He latches on to a Parliamentary submission from Canadian rock star Bryan Adams, suggesting the popular musician is unequivocally against such a thing (SPOILER: he’s not), and fails to note that in his submission Adams is actually asking for a completely different, creator-friendly change to the law.

If the copyright term is to be extended by 20 years, Adams argues, then something should be done to help those artists who assigned their copyright in contracts long ago, so they can actually benefit from the extension. Geist suggests Adams’ point is an apple (don’t like term extension), when it is actually a big bag of oranges meant to help sustain artists after a long career of creating cultural works (please help us benefit from term extension).

I mean, Geist literally stops quoting Bryan Adams right before his key point about the right to terminate assignment of copyright. Here it is:

“Granting the right of termination is an interesting and effective way to balance copyright duration with creators’ continued remuneration.”

For the record, I agree with Adams, have met with him on the subject, and even penned a letter to the Prime Minister to support his call for a termination right.

I struggle to find a polite way to describe this latest bit of geisting. In my opinion, it’s garbage argumentation,  far below the standards this country should expect from someone to whom we’re paying extremely good money for academic services. Geist — if he hasn’t already told you — is the Canada Research Chair in Internet and E-commerce Law, a position that has helped him to a very prominent placement on Ontario’s Sunshine List of public sector salaries. I mean, we want our extraordinarily well-paid Research Chairs to be able to grasp and accurately communicate nuanced arguments in their area of “expertise,” no?

Now, I’m no big city Research Chair, but I have a Master’s degree and have done my share of teaching. If I were grading Geist on his argument about Bryan Adams, he’d get an F.

Quill & Quire Opinion: Federal copyright repair is an immediate need

Quill & Quire, Canada’s longstanding writing and publishing industry trade magazine, commissioned the following opinion piece from me. I’m very grateful for their attention to this ongoing problem in Canada’s copyright marketplace. This was published on the Q&Q online edition, February 9, 2022, with this photo of me looking just a bit beaten down by the pandemic (that’s a self-performed haircut) and a decade’s worth of frustration with my country’s inaction on authors’ rights.

At the end of July 2021, with extraordinary speed and marked by controversy, the Supreme Court of Canada (SCC) ruled on two appeals in the long-standing York University v. Canadian Copyright Licensing Agency (Access Copyright) case. The ruling was a disaster for Canada’s books sector. Seemingly unwilling to set precedent on the question of educational copying and infringement, the SCC declared that, as written into current law, tariffs set by the Copyright Board of Canada are not mandatory – releasing York from any responsibility to pay up. Given that analysis, the court also concluded that “there is no live dispute” between York and this country’s writers and publishers (who were represented by Access Copyright in the case).

Did York’s extensive copying infringe our copyright on a massive scale, as two lower courts found? We may never know. The infringement question has been shelved, and the job of clarifying the Copyright Board’s purpose sent back to Parliament. Of course, two weeks after the SCC decision was released, all parliamentary business was suspended for the federal election. Clarity would have to wait.

As an arts administrator and lobbyist, I found a lot to like in the election. Nothing to do with party affiliation (of which I have none), nor with the election result itself. It’s what was said on the campaign trail that offers a ray of hope. Ahead of the vote, the arts sector managed to extract crucial promises from the parties that now hold the most seats. For writers and publishers in Canada, this means critical funding increases to key supports including the Canada Book Fund and the Public Lending Right, as well as a commitment from the parliamentary majority to – finally – fix the copyright mess that has plagued our market for over a decade.

The Liberals somewhat vaguely promised to “protect Canadian artists, creators, and copyright holders by making changes to the Copyright Act,” while the Conservatives focused on specific recommendations already before Parliament that address educational copying directly. “Conservatives will recognize and correct the adverse economic impact for creators and publishers from the uncompensated use of their works in a manner consistent with the unanimous recommendations of the Heritage Committee of the House of Commons Report in 2019.”

The trick, of course, is to ensure these commitments make their way onto immediate legislative agendas and ministerial priorities. Immediate as in right now.

Ottawa has asked for patience from Canada’s writers and publishers since before the passage of 2012’s Copyright Modernization Act (CMA). At the time, we certainly knew amendments in the CMA were a disaster, but lawmakers asked for time to see just how big a disaster they would be. When the educational market for copying dissolved overnight and licence payments to publishers and authors nosedived, we were asked to wait and see if the market might correct on its own.

The market did not correct.

In 2013, with York University and Access Copyright in Federal Court, we were advised to wait for a legal decision to clarify matters. Then came the Federal Court of Appeals in 2017, and then last summer’s Supreme Court non-decision. Now, the only thing that’s been clarified is the weakness of Canada’s commitment to protecting the rights of writers. Patience may be a virtue, but after 10 years, it feels a whole lot like a bad habit.

It’s hard to characterize just how damaging the Supreme Court ruling is to the future of writing in Canada. The unpaid licensing bill, now in limbo, is close to $200 million – a sum of existential importance for a sector far too familiar with the poverty line. How did the amount grow so huge? Well, while writers and publishers waited, the education sector got real busy copying.

To be clear, the SCC did not say we aren’t owed this money; they just made it functionally impossible to collect it. As the law now stands, authors must sue individually and not through our copyright collective. All the legal work we already did through Access Copyright and The Writers’ Union of Canada, all the evidence gathered, all the arguments made under hostile cross-examination, all the years of delay and appeal, we now must repeat without the collective resources of our sector. This truly is a case of justice delayed being justice denied.

At a recent online forum discussing York v. Access, a straw poll was taken in a crowd of Canada’s copyright law experts. Overwhelmingly, they felt the Supreme Court got it wrong, and, just as forcefully, they felt Parliament must act to correct the problem.

No more waiting.

John Degen is executive director of The Writers’ Union of Canada (TWUC) and chair of the International Authors Forum (IAF) in the U.K., serving and representing more than 700,000 authors worldwide. He is a poet and novelist with three published books.

Stop in the Name of the Supremes

The Supreme Court of Canada recently released an outrageously harmful ruling in a key case for Canadian copyright law. The court’s decision leaves Canada’s professional cultural workers with no workable legal remedies for protecting the value of their work.

I was engaged in this case for a decade. I testified at the original Federal Court trial, and intervened in both the lower court appeal and the Supreme Court appeals. Writers rights were protected by all lower courts in succession, until they were kneecapped and abandoned by the Supremes. It should not have happened that way. In my opinion, the SCC ruling was hasty, one-sided, ill-considered, and marred by the appearance of conflict. It damages Canada’s cultural sector and standing in the world, and it damages the reputation of the highest court.

For what? So universities won’t have to pay a $14.31 license fee when they copy published work. Such myopic nonsense.

I have many thoughts about the decision, and I let them flow in a very long Twitter thread you can access here: