English Matters

Opinion: From the Conference–Mark McCutcheon on TPP

[Ed. note: The post below is offered as part of our ongoing series of opinion pieces.  ACCUTE members may propose opinion pieces for the blog, provided they engage issues of interest to the broader ACCUTE membership; if accepted, they are subject to editing for length and other matters.  This and other such opinion pieces reflect the author’s own views, and do not necessarily represent the opinion of ACCUTE or its membership; they are offered in hopes of generating discussion among our members. Feel free to reply in the comments section, below. Ed. note 2: updated 08 June 2016 to fix some links.]

ACCUTE members may recall that the print newsletter used to publish versions of recent conference presentations that were felt to be of wide interest to the membership.  We are happy to revive that practice by publishing Mark McCutcheon’s piece below on the Trans-Pacific Partnership and copyright, a longer version of which was presented at the 2016 conference in Calgary.  For an earlier, thoughmuch less detailed, discussion of TPP on this blog, see here.  –Jason Haslam


 “The TPP will invalidate millions of dollars of tax-payer funded research in Canada”:
Implications of the TPP for Canadian literature and literary studies

by Mark A. McCutcheon, Athabasca University
(Email Mark, or follow him on Twitter, @sonicfiction)

The Trans-Pacific Partnership, or TPP, is a sweeping international trade agreement that has been led by US trade interests and joined by a dozen countries, including Canada. The TPP is not so much a “free trade” deal as it is a “corporate rights” deal: it entrenches privileges and interests for corporate (and especially US) businesses in ways that put them above the sovereign laws of signing nations. It was negotiated—in secret, and undemocratically—by trade and business representatives from the mid-2000s until the fall of 2015; it was finalized and signed by all participating nations just this February. But the TPP is not yet a done deal: it still needs to pass a vote in Parliament, and the Canadian government is now holding public consultations on it.

The TPP holds onerous intellectual property requirements, for patents, copyright, and digital copyright enforcement (for instance it will force Internet Service Providers to spy and snitch on their own customers, and to cut off users merely suspected of infringement).‬‬

This article focuses on the TPP’s requirement for Canada to extend the duration of copyright protection. Canadian law confers automatic copyright protection on original works, with limited exceptions, for a limited duration. In Canada, the term of copyright protection lasts fifty years after the death of the author (Murray and Trosow 49). After the copyright term expires, a work is no longer copyright protected—it enters what we call the public domain. The public domain consists of the total corpus of works whose copyright terms have expired. For example, T.S. Eliot died in 1965, so as of January 2016, the complete works of Eliot exited copyright protection and entered the public domain. Public domain works may be freely reproduced, repurposed, or transformed by anyone, for any purpose, without payment to or permission from the rights holder. As Carys Craig notes, Canadian jurisprudence envisions the public domain as “a vibrant cultural space that facilitates exchange and transformation, inspiration, and innovation, and thereby serves the public interest” (67); Craig argues that the public domain should be treated as a “human entitlement equivalent in nature, purpose, and importance to the freedom of speech” (77; cf. Birnhack 63). The public domain is crucial to freedom of speech because it lets “new ideas form when old ideas interact” (Birnhack 85).

Some other countries party to the TPP also have a copyright term of life-plus-fifty years, like New Zealand (see this world map of copyright terms). But the TPP is being led by US trade interests, and in the USA, and most of Europe, the copyright term lasts not fifty but seventy years after the author’s death. So T.S. Eliot’s works won’t enter the European public domain until 2036. And in the USA, changes to copyright law made in 1978 and 1998 mean that nothing published between 1923 and 1977 will enter the US public domain until ninety-five years after date of publication. (Works published after 1977 are protected for life plus seventy years.) So most of Eliot’s works won’t enter the US public domain until at least 2030.

Compare these copyright term lengths—which are practically perpetual monopolies—with the term set by the first modern copyright law, Britain’s 1710 Statute of Anne: fourteen years after publication date, renewable once if the author outlived its expiry. But short copyright enjoyed only a short life: it was only enforced as of 1774, and it only lasted until 1808, after which time subsequent legislation, together with global agreements, have kept lengthening the copyright term.

The term-lengthening trend that continues with the TPP is based on effective lobbying, not on economic evidence. Many international studies show that the public costs of long copyright outweigh its private benefits (Rossini and Welinder). Australian government studies in 2000 and in 2010 consistently argue against copyright extension as a cost to any jurisdiction that imports more IP than it exports (Productivity Commission; cf. Rimmer 41, Weatherall 12). A 2006 report for the UK government concludes that Britain’s copyright term of life-plus-seventy-years “far exceeds the incentives required to invest in new works” (Gowers 50). A 2011 report for the UK government cited economic evidence and the government’s own 2010 study to conclude that copyright term extensions are “economically detrimental” (Hargreaves 19). A 2011 study by the Canadian government (Canada, Innovation, Science and Economic Development) concludes that “extending the term simply does not create an additional incentive for new creativity” (Geist, “Trouble” ¶4).7 A 2009 New Zealand study prompted specifically by the TPP concluded that “the costs of extending copyright for New Zealand consumers would outweigh the benefits for New Zealand creators” (Ergas 1). While this study’s calculations have been contested (see Barker, Stephens), the preponderance of evidence and disinterested analysis shows copyright term extension is a net cost to countries that are net importers of IP, and a benefit only to net exporters—meaning, really, just the USA (PDF). As Matthew Dawes puts it, “extending IP protection and enforcement in trade agreements does not benefit countries that are net IP importers—which is every country negotiating the [TPP] other than the US” (¶16). Like New Zealand, Canada is demonstrably a net importer of IP (PDF). Statistics Canada’s 2015 table of international transactions in services shows a line for “charges for the use of intellectual property” with a negative balance, about -$7.25 billion dollars, every year from 2010 to 2014 (Canada, Statistics Canada). Since Canada is a net importer of IP, the economic evidence shows copyright extension will cost Canada, not benefit us.

Michael Geist has illustrated this prospective cost by identifying the Governor General’s Award winning authors whose expected entry to the public domain would be delayed by the TPP. Twenty-two GG winners will enter the public domain in the next twenty years. But under the TPP, they would not enter it until 2037. These authors include Margaret Laurence, Gabrielle Roy, and Marshall McLuhan (“Official” ¶11-12). Using Geist’s premise that the TPP comes into force in 2017, Table 1 shows just a few notable Canadian and international authors whose entry to Canada’s public domain in the next twenty years would be postponed by the TPP for a further twenty years.

Table 1. Some authors the TPP will keep out of public domain for 20 more years:

Canada & Quebec: Ernest Buckler, Franklin W. Dixon, Marian Engel, Jacques Ferron, Hugh Garner, A.M. Klein, Margaret Laurence, Pat Lowther, Gwendolyn MacEwan, Marshall McLuhan, Alden Nowlan, Gabrielle Roy, George Ryga, Elizabeth Smart, Ethel Wilson

USA: James Baldwin, Djuna Barnes, John Berryman, Richard Brautigan, Truman Capote, Philip K. Dick, John Gardner, Brion Gysin, Frank Herbert, Langston Hughes, Jack Kerouac, Martin Luther King, Henry Miller, Carson McCullers, Vladimir Nabokov, Charles Olson, Dorothy Parker, Katherine Anne Porter, Ezra Pound, Ayn Rand, Carl Sandburg, Anne Sexton, Upton Sinclair, John Steinbeck, E.B. White, Thornton Wilder, Tennessee Williams

UK: W.H. Auden, Enid Blyton, John Betjeman, Agatha Christie, Noël Coward, William Empson, E.M. Forster, Robert Graves, Philip Larkin, F.R. Leavis, John Lennon, J.B. Priestley, I.A. Richards, Bertrand Russell, J.R.R. Tolkien, John Wyndham

France: Louis Aragon, Roland Barthes, Simone de Beauvoir, Michel Foucault, Jean Genet, Anaïs Nin, Jacques Prévert, Raymond Queneau, Jean-Paul Sartre, Marguerite Yourcenar

In addition, Canada has agreed to make term extension retroactive: this means that the life-plus-seventy-years copyright term would not only apply to authors who died in 1967 (that is, fifty years before the TPP would go into force in 2017). Retroactivity means term extension would also apply to authors who died seventy years before the TPP goes into force, meaning authors who died in 1947 or later (Clifford, Sutton). As Table 2 shows, term extension retroactivity means that many authors who are now already in Canada’s public domain would be removed from it. Retroactive term extension would force publishers, scholars, and others who now legally sell or freely provide the works of authors who died in or before 1965 to take them out of circulation (LePan). This re-privatization would make a confusing and impoverished mess of the Canadian public domain.

Table 2. Some authors the TPP will remove from the present public domain:

Canada & Quebec: Frederick Philip Grove, Harold Innis, Wyndham Lewis, Malcolm Lowry, E.J. Pratt, Duncan Campbell Scott, Robert Service

USA: Edgar Rice Burroughs, Willa Cather, Raymond Chandler, ee cummings, H.D., T.S. Eliot, William Faulkner, Richard Fariña, Robert Frost, Ernest Hemingway, Zora Neale Hurston, Nella Larsen, Claude McKay, Edna St Vincent Millay, Margaret Mitchell, Flannery O’Connor, Sylvia Plath, Theodore Roethke, Wallace Stevens, Laura Ingalls Wilder, William Carlos Williams, Richard Wright, Malcolm X

UK: Ian Fleming, C.S. Forester, Aldous Huxley, C.S. Lewis, William Somerset Maugham, A.A. Milne, George Orwell, Vita Sackville-West, Dorothy L. Sayers, Nevil Shute, Edith Sitwell, Evelyn Waugh, T.H. White

France: Antonin Artaud, Gaston Bachelard, Georges Bataille, André Breton, Albert Camus, Jean Cocteau, Colette, Paul Éluard, Frantz Fanon, André Gide, Tristan Tzara

The deferral of some authors’ entry to the public domain and the removal of others from it would harm the public domain and cost the Canadian public. The New Zealand study (its calculations aside) identifies four such costs:
1) an increased transfer of money from Canadian consumers to foreign copyright holders, especially US rights holders;
2) foregone consumption (Ergas 10), the cost of consumers not buying copyright-protected works at the marked-up prices that copyright protects;
3) less domestic production of derivative works—works that use or adapt prior works—since producers of derivative works would face licensing and tracing costs to clear their intended uses with rights holders; and
4) higher costs for “intermediaries” like libraries and universities: costs such as tracing (i.e. locating rights holders), license fees, and acquiring still-copyrighted and therefore more expensive works.

Further costs, like those facing intermediaries, face scholarly researchers, publishers, and digital projects for clearing, licensing, or acquiring copyrighted works for research projects, publication, or other distributions—and for removing presently public domain works from their repertoires. Project Gutenberg’s Canadian website features numerous free digital editions of public domain works—by E.J. Pratt, T.S. Eliot, and Hemingway, among others—alongside notes about how the TPP would affect each, and exhortations to the public to oppose the TPP. Broadview Press CEO Don LePan decries the chaos that term extension holds for Canadian publishing: “If the TPP is approved in Canada, then, say goodbye to [Broadview’s] Orwell and Eliot editions … say goodbye to a number of books that we’ve been making available in Canada for some time” (¶8). Given its impact on works by authors who died between 1947 and 1987, the TPP’s impact on the public domain would also hurt research projects on modernist literature in particular. The U of Victoria’s Stephen Ross, one of the directors of the Modernist Versions Project, says:

the TPP will…invalidate millions of dollars of tax-payer funded research in Canada. It will cost hundreds of thousands more if all the projects with works online that suddenly revert to copyright have to be moved to offshore servers. This is only the economic side. We’ve been urged for several years to frame our projects in terms of “Canada’s Digital Advantage” and the TPP’s copyright provisions will effectively nullify that advantage. (E-mail to author, 24 Apr. 2016)

Ross’ colleague and co-director James Gifford has published editions of Hemingway and is now finalizing editions of H.D. and Evelyn Waugh. Gifford says copyright term extension would mean shelving all these editions—and retroactive extension would block some non-publication uses of the texts, too. “Various products grown from hundreds of thousands of dollars in Canadian federal and provincial as well as private funding,” says Gifford, “would become illegal for Canadians to access … The TPP would effectively end a number of current projects in Canada and prohibit use in Canada of some research already completed.”

So the costs of copyright extension wouldn’t just be monetary; there’d be related cultural and social costs. Higher purchase costs for purchase, licensing, and research use are higher costs for public access to knowledge and culture, higher costs for various forms of literacy, higher costs for using copyrighted works in exercising expressive freedoms and producing new works. To the understandable question—“What’s wrong with creators wanting to protect their property?”—the answer is that most creators don’t benefit from term extension—“Only corporate copyright owners are likely to benefit (somewhat) from term extension,” concludes Weatherall (13; cf. Hunter). Or, as Berkeley law scholar Mike Wolfe puts it, “term extension is a tool that rewards those who need it least.” On balance, then, “in a policy world in which copyright strives to balance creativity and access,” as Geist writes, “term extension does not enhance creativity but it does restrict access” (“Trouble” ¶3). What’s more, as Ariel Katz argues, “adding 20 more years of copyright protection is more than just bad policy; it might well create an unconstitutional limitation on our freedom of expression.” Extending copyright means limiting our Charter-protected freedom of speech (Amani) and harming Canadians’ social literacy (see Brodie). The economic evidence still suggests that the 1710 Statute of Anne’s fourteen-year copyright term may have struck the best balance between authors’ and users’ interests in the first place, by limiting copyright duration to a term more like a decade than a century.

If Parliament does vote in the TPP, we will need to strategize solutions and workarounds, along the lines of what Rosemary Coombe and co-authors call “dynamic fair dealing” (39). As academic authors, do we want our publications kept in copyright lockdown for even fifty years, never mind seventy? Scholarly publishing’s small print runs suggest academic books don’t enjoy the enduring popularity of Eliot or Orwell.

But first: we can still stop the TPP and the mess it would make of the Canadian public domain (not to mention the Internet). There are hopeful signs that the TPP is on the ropes, in Canada and the USA (see Geist, “In search”). So I encourage you to participate in the government’s public consultations, which continue until the end of June; and to contact Canada’s Minister of International Trade, the Honourable Chrystia Freeland—and CC Minister Freeland’s parliamentary secretary, MP David Lametti, a law scholar who has previously argued for shorter copyright term (“Coming to terms”). And contact your own MP, to demand they reject the TPP for the exorbitant costs and Charter violations with which it would burden Canada.

Works Cited

Amani, Bita. “Copyright and Freedom of Expression: Fair Dealing Between Work and Play.” Dynamic Fair Dealing: Creating Canadian Culture Online. Ed. Rosemary Coombe et al. Toronto: U of Toronto P, 2014. 43-55.

Australia. Productivity Commission. Bilateral and Regional Trade Agreements. Nov. 2010 http://www.pc.gov.au/inquiries/completed/trade-agreements/report/trade-agreements-report.pdf

Band, Jonathan. “Evolution of the Copyright Exceptions and Limitations Provision of the Trans-Pacific Partnership Agreement.” http://www.infojustice.org/wp-content/uploads/2015/10/band10202015.pdf

Barker, George. “Major Errors in the NZ Government’s Model of the Economics of Copyright & the Costs of Term Extension.” New Zealand. 17 Mar. 2016 http://www.parliament.nz/resource/en-nz/51SCFDT_EVI_00DBSCH_ITR_68247_1_A498538/134827cb724094f28d1aa04e8b37237a7730ee24

Birnhack, Michael. “More or better? Shaping the public domain.” The Future of the Public Domain. Ed. L. Guibault and P.B. Hugenholtz. Amsterdam: Kluwer Law, 2006. 59-86.

Boyle, James. “Mark Twain on the Need for Perpetual Copyright.” The Public Domain [blog] 19 Jul. 2014 http://www.thepublicdomain.org/2014/07/19/mark-twain-on-the-need-for-perpetual-copyright/

Brodie, Janine. “Social Literacy and Social Justice in Times of Crisis.” Trudeau Foundation Papers 4.1 (2012): 117-46.

Canada, Innovation, Science and Economic Development. Assessing Economic Impacts of Copyright Reform on Selected Users and Consumers. Intellectual Property Policy. 9 Oct. 2011 https://www.ic.gc.ca/eic/site/ippd-dppi.nsf/eng/ip01185.html#h3_1_a

—, International Trade. “Consulting Canadians on the Trans-Pacific Partnership.” http://international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/tpp-ptp/consultations.aspx?lang=eng

—, Statistics Canada. Table 376-0033: International transactions in services, commercial services by category. 8 Oct. 2015 http://www5.statcan.gc.ca/cansim/a26?lang=eng&retrLang=eng&id=3760033&&pattern=&stByVal=1&p1=1&p2=31&tabMode=dataTable&csid

Clifford, Jim. “The TPP and Public Domain Content in Canada.” Active History 18 Oct. 2015 http://activehistory.ca/2015/10/the-tpp-and-public-domain-content-in-canada/

Coombe, Rosemary J., Darren Wershler, and Martin Zeilinger, eds. Dynamic Fair Dealing: Creating Canadian Culture Online. Toronto: U of Toronto P, 2014.

Craig, Carys. “The Canadian Public Domain: What, Where, and to What End?” Dynamic Fair Dealing: Creating Canadian Culture Online. Ed. Rosemary Coombe et al. Toronto: U of Toronto P, 2014. 65-81.

Dawes, Matthew. “Trans-Pacific Partnership Agreement: Carrying the water for America.” East Asia Forum 17 Apr. 2011 http://www.eastasiaforum.org/2011/04/17/trans-pacific-partnership-agreement-carrying-the-ater-for-america/

Ergas, Henry. “Concept Economics analysis of the impact on New Zealand of extending copyright term.” New Zealand Ministry of Economic Development, 2009 https://www.tpp.mfat.govt.nz/assets/docs/TPP%20-%20Analysis%20of%20Copyright%20term%20extension,%20explanatory%20cover%20note.pdf

Freeman, Sunny. “NAFTA’s Chapter 11 Makes Canada Most-Sued Country Under Free Trade Tribunals.” Huffington Post 14 Jan. 2015 http://www.huffingtonpost.ca/2015/01/14/canada-sued-investor-state-dispute-ccpa_n_6471460.html

Geist, Michael. “Canadian Government Amends ‘Caretaker Rules’ to Give Itself Power to Continue Negotiating TPP.” MichaelGeist.ca 4 Aug. 2015. 9 pars. http://www.michaelgeist.ca/2015/08/canadian-government-amends-caretaker-rules-to-give-itself-power-to-continue-negotiating-tpp/

—. “In search of a Plan B for the TPP.” MichaelGeist.ca 25 May 2016. 10 pars. http://www.michaelgeist.ca/2016/05/planbtpp/

—. “Official release of TPP text confirms massive loss to Canadian public domain.” MichaelGeist.ca 5 Nov. 2015. 7 pars. http://www.michaelgeist.ca/2015/11/official-release-of-tpp-text-confirms-massive-loss-to-canadian-public-domain/

—. “The trouble with the TPP, day 3: Copyright term extension.” MichaelGeist.ca 6 Jan. 2016. 15 pars. http://www.michaelgeist.ca/2016/01/the-trouble-with-the-tpp-day-3-copyright-term-extension/

Gifford, James. E-mail to author, 22 Apr. 2016.

Globe Editorial. “Copyright concessions may be downside of TPP deal.” Globe & Mail 22 Oct. 2015 http://www.theglobeandmail.com/globe-debate/editorials/copyright-concessions-may-be-downside-of-tpp-deal/article26939204/

Hunter, Andrew. “TPP’s Copyright Term Extension Isn’t Made for Artists—It’s Made By and For Big Content Companies.” Electronic Frontier Foundation 17 Aug. 2015 https://www.eff.org/deeplinks/2015/08/tpps-copyright-term-extension-isnt-made-artists-its-made-and-big-content-companies

Katz, Ariel and Liran Kandinov. “TPP trades away our constitutional rights.” Toronto Star 28 Oct. 2015 https://www.thestar.com/opinion/commentary/2015/10/28/tpp-trades-away-our-constitutional-rights.html

Knopf, Howard. “My Unsolicited Advice to Prime Minister-designate Justin Trudeau & his Team on TPP, Copyright, CBC, Cabinet & Committees.” Excess Copyright [blog] 23 Oct. 2015 http://excesscopyright.blogspot.ca/2015/10/my-advice-to-prime-minister-designate.html

—. “The cost of Canadian copyright term extension capitulation in the TPP — Estimates based upon New Zealand Study.” Excess Copyright [blog] 17 Nov. 2015 http://excesscopyright.blogspot.ca/2015/11/the-cost-of-canadian-copyright-term.html

Lametti, David. “Coming to terms with copyright.” In the Public Interest: The Future of Canadian Copyright Law. Ed. Michael Geist. Toronto: Irwin Law, 2005. https://www.irwinlaw.com/sites/default/files/attached/Three_03_Lametti.pdf

LePan, Don. “Copyright, the TPP, and the Canadian Election.” Broadview Press Oct. 2015. 17 pars. http://mailer.barkingdogstudios.com/t/ViewEmail/r/B2F36D1A1FE852952540EF23F30FEDED/5E961070416257DF6E6039C17E42EE19

McCutcheon, Mark A. “The Cento, Romanticism, and Copyright.” English Studies in Canada 38.2 (2012): 71-101.

Modernist Versions Project, U Victoria, Fairleigh Dickinson U, U of Texas Austin, Trinity College. http://web.uvic.ca/~mvp1922/

Murray, Laura J. and Samuel E. Trosow. Canadian Copyright: A Citizen’s Guide. 2nd ed. Toronto: Between The Lines, 2013.

Open Modernisms, U Victoria, Simon Fraser U, Syracuse U, Douglas College, and Texas A&M U. http://openmods.uvic.ca/

Pearson, Jordan. “What we know about the secretive Trans-Pacific Partnership that Was Just Signed.” Vice 5 Oct. 2015 https://motherboard.vice.com/read/what-we-know-about-the-secretive-trans-pacific-partnership-that-was-just-signed

Pollock, Rufus. 2007. “Forever minus a day? Some theory and empirics of optimal copyright.” Cambridge U, 7 August http://rufuspollock.org/papers/optimal_copyright.pdf

Project Gutenberg Canada http://www.gutenberg.ca/

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Ross, Stephen. E-mail to author, 24 Apr. 2016.

Rossini, Carolina and Yana Welinder. “All Nations Lose with TPP’s Expansion of Copyright Terms.” EFF 8 Aug. 2012 https://www.eff.org/deeplinks/2012/08/all-nations-lose-tpps-expansion-copyright-terms

Seidenberg, Steven. “US Perspectives: TPP’s Copyright Term Benefits US, Burdens Others.” Intellectual Property Watch 23 Mar. 2015 http://www.ip-watch.org/2015/03/23/tpps-copyright-term-benefits-us-burdens-others/

Stephens, Hugh. “The TPP and Copyright Term Extension: What is the true cost to Canada?” HughStephensBlog 21 Mar. 2016 https://hughstephensblog.net/2016/03/21/the-tpp-and-copyright-term-extension-what-is-the-true-cost-to-canada/

Sutton, Maira. “Trade Officials Announce Conclusion of TPP—Now the Real Fight Begins.” Electronic Frontier Foundation 5 Oct. 2015 https://www.eff.org/deeplinks/2015/10/trade-officials-announce-conclusion-tpp-now-real-fight-begins

USA. Office of the United States Trade Representative. Trans-Pacific Partnership Chapter 18: Intellectual Property. 2015 https://ustr.gov/sites/default/files/TPP-Final-Text-Intellectual-Property.pdf

Weatherall, Kimberlee G. “Section by Section Commentary on the TPP Final IP Chapter Published 5 November 2015 – Part 2 – Copyright.” U of Sydney, 7 Nov. 2015 https://works.bepress.com/kimweatherall/32/

Wolfe, Mike. “TPP appears to move forward with term extension intact.” Berkeley Law Public Interest Authorship [blog] 6 Oct. 2015 http://public-interest-authorship.berkeleylawblogs.org/2015/10/06/tpp-appears-to-moves-forward-with-term-extension-intact/

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