Copyright extension does not benefit documentary filmmakers like me

Copyright is a long-standing interest of mine, so when Michael Geist noted that the Canadian government was consulting on the topic of copyright extension (from 50 years after the death of the author to 70), I decided I would write in to the consultation.

A couple points that make it easier to understand what’s going on here. One, the copyright extension is required by CUSMA — the updated NAFTA treaty that was re-negotiated amid much Trump-related drama a couple years ago. The decision to make the extension has already been made; the consultation is basically on how Canada should implement it. Two, the government has already consulted on this topic recently, when The Standing Committee on Industry, Science and Technology (aka INDU) recommended that recommended that copyright extension accompanied with a registration requirement. For whatever reason, the current consultation is ignoring that recommendation.

Ok, get ready to get down in the copyright weeds. This is what I submitted:

I would like submit a response to the government’s consultation on how to extend copyright terms to 70 years after the death of the creator, as required by CUSMA.

I am a documentary filmmaker based in Vancouver.  I both create and make use of copyrighted works as part of my profession.  I care deeply about Canadian culture, which copyright is ostensibly intended to protect and nurture.

Before I respond to the question of what limitations should be placed on the extension of the general copyright term to life + 70 years, I would like to make some pointed observations:

  1. I am currently nearing 40 years old.  If I’m lucky, I expect to work for another 25-30 years, and live for another 40.  Assuming I do, the proposed copyright extension for works I create in my lifetime will not take effect until sometime around the year 2110.
  2. Extending the general copyright term is immaterial to my ability to make money off of my work.  An additional 20 years of copyright protection that takes effect 50 years after my death does not benefit me in any way.  I’ll be dead long before I can take advantage of it.
  3. In the same vein, an additional 20 years of copyright protection is immaterial to the commercial negotiations I make with the distributors and broadcasters that exploit my work.  The expected commercial life of the documentaries I create is 10 years at best.  It’s a bonus if my work has a commercial life beyond that time frame, but no distributor I’m aware of makes a business plan for a documentary that counts on receiving revenue in the year 2110.  An additional 20 years of copyright protection that takes effect 50 years after my death does not benefit them in any way.  They’ll be dead long before they can take advantage of it.
  4. With the above points in mind, I hope it is clear that the proposed extension does not benefit *current* creators like me in any way.  It is unlikely that the currently proposed extension will be in force unchanged by the year 2110.  Perhaps it will be, but more likely a different regime will be in place, as legislation, including copyright, is typically revisited every few decades.  It is quite implausible that any current stakeholders are making business decisions based on a potential benefit that is 90 years in the future — no one is planning that far into the future, and trying to do so would be foolish.
  5. Thus, the primary benefits of the extension accrue not to current creators, but to the owners of works that were created at least 50 years ago (1970), but given that most works are created mid-life, the average is more likely in the ballpark of 90 years ago (1930).
  6. The percentage of copyrighted works that have a commercial life lasting 90 years is exceedingly small — 1% is likely an overestimate based on percentages of books that remain in print at the time their copyright expires.
  7. Thanks to the fact that copyright is fixed on creation, the percentage of copyrighted works that are created for commercial purposes is also very small.  The vast majority of copyrighted works are private, unpublished works.
  8. For the sake of argument, let’s say the percentage of commercial works is 10%.  Based on the previous two points, that means the percentage of total copyrighted works that are likely to benefit from the proposed extension is in the ballpark of 0.1%, or one in a thousand.
  9. Put another way, this means that 999 out of 1,000 works covered by the proposed extension would likely qualify as “orphan” or “out-of-commerce” works.  Obviously, this is a ballpark estimate.
  10. The proposed copyright extension has the effect of creating a commercial benefit that is useful for approximately 0.1% of copyrighted works.  This benefit comes at the expense of making it harder to access and make use of the remaining 99.9% works.
  11. Part of my work as a documentary filmmaker involves researching Canadian history, and re-using the copyrighted works that make up our history and culture in a way that makes them interesting and relevant to present-day audiences.  I am a creator of Canadian culture, and that necessarily means that I build on our cultural heritage, much of which is under copyright.
  12. The vast majority of the works I re-use in my work are “orphan”, “out-of-commerce”, or “noncommercial” in nature.  The most common type of “commercial” works I use are old newscasts that are primarily factual in nature, but are nonetheless copyrighted and licensed by commercial entities.
  13. The costs of clearing copyright — finding out who owns a work, when it was created, whether it is under copyright, and whether I can license it — form a significant portion of the time and money I spend creating.  This is particularly true of the time involved in tracking down and clearing non-commercial works that are not owned by professional copyright holders.
  14. Due to the fact that Canada’s cultural industries were nascent and small until the rise of CanCon in the 1960s, the vast majority of commercially significant copyrighted works that stand to benefit from the proposed extension (i.e. those created in the first half of the twentieth century) are not Canadian in origin.  Most are likely American, British, or French.
  15. This means that the primary benefits of the proposed extension are likely to accrue to non-Canadian entities — there are simply far more foreign works dating from the first half of the twentieth century that are commercially viable than there are Canadian ones.

Aside from it being a requirement of CUSMA, the stated benefit of the proposed extension is:

Canada’s implementation of its commitment to extend its general term of protection to life-plus 70 years will provide certainty that Canadian rights holders will benefit from this extended term in each of these countries, contributing to a more level global playing field and providing new export opportunities for Canadian creative industries and Canadian-made content.

Based on my observations above, I hope the following is clear:

  • The number of Canadians, and Canadian works that can benefit from the proposed extension is miniscule.  There simply are not many Canadian works produced in the first half of the twentieth century that have commercial value.
  • I would reiterate that the expected benefit for current creators is in the ballpark of 90 years in the future, and is not a relevant factor in either creating or commercializing works created today.  There simply are not very many “export opportunities for Canadian creative industries and Canadian-made content” that are enabled by the proposed extension, because the works that primarily benefit were created nearly a century ago, and most of those works are not Canadian.
  • A “more level global playing field” in fact removes a competitive advantage that Canadians have benefited from up until now:  Creators like me have more certainty about whether we can use works from creators who have been dead for 50-70 years, and we do not bear the time and labour costs of clearing them.  Creators in countries that have adopted life+70 must bear these extra costs.

In short, although it is clear that Canada is required to adopt some form of extension to meet its obligations under CUSMA, compliance with CUSMA appears to be the main benefit that Canadians are getting; on its own merits, the extension is arguably detrimental to Canadians, and especially Canadian culture, on the basis of the additional costs it imposes on Canadians who want to access the vast majority of non-commercial copyrighted works that will become less accessible during the proposed extension.  This is true whether Libraries, Archives, and Museums (LAMs) are bearing those costs, or individuals who simply lose access entirely because the LAMs cannot bear those costs.

I hope it is clear that I disagree with the premise that Canadians are getting anything real of value from a copyright extension.  As a Canadian creator, I do not see how I benefit from the proposed extension, despite the fact that the policy is being promoted in the name of creators.  I do, however, see cost to me, in that I will have to put more time and money into researching and clearing the old works that are in my work.  For some projects, perhaps this cost would be negligible.  But for others — particularly those that dig into Canadian history and culture — they could be significant enough to influence whether or not I am able to make a project.

As I see it, the proposed extension offers a benefit to the institutions that happen to own copyright in the most recognizable works of the early twentieth century — most of which are foreign — at the cost of present-day creators, in exchange for a lottery ticket that can’t be redeemed until 50 years after I’m dead.  The extension is a transfer of wealth from the present to the past, and it prioritizes access to the 0.1% of commercially viable works at the expense of the remaining 99.9% of our culture.  This is the opposite of supporting Canadian culture.

With that in mind, I would like to offer my recommendation that Innovation, Science, and Economic Development Canada adopt the original INDU recommendation of a registration system for works to obtain copyright protection beyond 50 years after the death of the creator.  Why?  Because this option will cost creators, libraries, archives, museums, and Canadians the least when we want to access the 99.9% of works that are our cultural heritage.

This vast trove of cultural works are not economic to monetize.  For out-of-commerce and non-commercial works, that is true by definition.  For orphan works it is true due to market failure — any business that cannot be found by its customers is obviously not an economic business  Any licensing or clearance regime that is enacted to fulfill the fiction that such works are economically valuable (as opposed to culturally valuable) is almost certain to lose money — for the copyright owners as well as the licensees.  The overhead and carrying costs of making such ancient works available is not worth the minuscule demand for those works.  They are far more valuable to Canadians when there are as few barriers as possible to their use.  They are worthless without the work that creators, libraries, archives, and museums do to re-use and re-contextualize them for modern Canadians.

In truth, it is the 0.1% of commercially valuable works that are the exception, and a registration requirement would codify that exception into law.  A $50 registration fee and a few minutes filling out a registration form are a small cost to bear for a work that is expected to produce a commercial return, and in aggregate, $50 for each of the 0.1% of commercially significant works is a far, far smaller economic cost than the time and labour costs imposed by needing to clear the 99.9% of uneconomic works.

A registration system buys clarity:  There is a definitive way of knowing which works must be cleared, and who they need to be cleared with.  Because of that clarity, the orphan work problem goes away, and no difficult definitions are needed to determine which works are out-of-commerce.  Copyright holders can determine that for themselves, and if a work is commercially viable, a $50 fee is no hardship.  Such a system will simultaneously satisfy our international obligations, ensure that what economic opportunities there are can be made use of, and most importantly, it does not burden the 99.9% of non-economic works with the cost of allowing the 0.1% to be sold.

Of the “official” options, “Option 3 — Permit the use of orphan works and/or out-of-commerce works, subject to claims for equitable remuneration” comes closest to mitigating the problems of copyright extension.  Permitting use by default mostly mitigates the overhead of trying to clear uneconomic works, while still permitting owners of commercial works to negotiate licenses.  However, it would need to be modified to allow creators — and ordinary Canadians — access to our cultural heritage, and the non-profit restriction seems unnecessary.  Additionally, it allows the value created by creators, libraries, archive and museums to be appropriated by copyright owners.  In situations where very old works regain popularity and commercial viability, it is likely that the efforts to re-use and re-contextualize are responsible for the new value that is created, not any value inherent in the work itself.

In sum, Option 3 has its merits, but is still inferior to a registration system that would provide more certainty about what does and doesn’t need to be licensed, impose fewer costs on non-commercial works, and be cheaper to implement.  If “following international norms” is the only benefit to avoiding a registration system, that benefit is not tangible enough to outweigh the benefits of creating one.  If the Berne Convention is satisfied by a copyright term of Life+50, there is no reason to think that Berne’s requirements should apply to any protection offered past that term.

Who gets to own our culture?

In honour of Techdirt’s World IP Day “anti-contest”, I’ve decided to write a few words about the relationship between copyright and culture.

Specifically, I’m interested in the question of who gets to own our culture, because copyright is the mechanism we use to answer that question.  Copyright — intellectual property — is the idea that when you create something — a photograph, a song, a film, or an essay like this one — you own that creation by virtue of being its creator.  You are free to publish it or to hide it away, to be magnanimous in sharing it with the world or to set up a toll booth and charge people for experiencing your creation.  All of those things belong to you by right — and that right is called copyright.  Thus are the seeds of ownership planted for all of the cultural artifacts that are created.

Culture is a different beast.  It’s also a very fuzzy concept.  When people talk about culture, they never quite seem to know exactly what they mean.  We often seem to think it has something to do with the arts — the “cultural industries” are the ones that produce things like literature and art and movies.  Or, perhaps it has something to do with having a shared language or ethnic background.  Or food.

What I mean by culture is this:  Culture is just the things that people share between them.  And, to the extent that they share things, they share a common culture.  Culture is the lingua franca that binds a particular group of people together, whether that group is a nation, a particular ethnicity, a company (as in “corporate culture”), or just a small group of friends.  Culture is made of the common experiences that bind a group together.  Whatever group it is, the most salient feature of culture is that it is shared within that group.

That feature puts it in direct conflict with the idea of copyright.  Because if culture is fundamentally about sharing, copyright is fundamentally about controlling who gets to share.  If you own the copyright on some cultural artifact — let’s say the new Star Wars movie — you control who gets to watch Star Wars.  By extension, that also means you control who gets to talk about Star Wars and what they are allowed to say about it.  Because, if you can’t watch Star Wars, you lose access to the culture that is Star Wars and the things you are able to say about it will be very limited.

In a very real way, owning copyright means owning a piece of culture.  And, with that in mind, let’s return to the question of who gets to own our culture.  Initially, copyright belongs to creators.  There’s an intuitive appeal to this arrangement; it makes sense that the originator of a piece of culture gets to own it.  But, in reality, it is not creators who own our culture.  In fact, much of the culture that matters — the culture that is shared widely enough to be known on a large scale — is owned by large media conglomerates.  Star Wars is owned by the Walt Disney Company, not by George Lucas.

Of course, saying that our culture is owned by giant media conglomerates is a gross over-simplification.  Copyright is automatic and universal, which means everything from the e-mail you wrote to your boss last week to Donald Trump’s latest tweet is covered under copyright as a potential cultural artifact.  And there are plenty of aspects of culture that are not covered under copyright at all — language and food being two obvious examples.

Still, there is something significant about the amount of control that media companies exert on our culture.  And that significance is evidenced by the phrase that I used to describe it.  Media conglomerates don’t just own a lot of culture.  They own a lot of culture that matters.  In crass corporate terms:  They make it their business to own culture that is worth a lot of money, and, if possible, to increase the amount of money that they can earn from that culture.  What determines which culture is worth money?  Or, put another way, what determines cultural value?  We’ve already answered that question:  It is the culture that is most widely shared.

That’s significant, because it belies the intuition we had about copyright belonging rightly to creators.  It’s not creators that create cultural value.  The value comes much more from the sharing than from the creation.  A moment’s thought will confirm this.  Of the immense number of copyrightable creations, only a vanishingly small number will gain any significant amount of cultural relevance.  Chances are, the e-mail to your boss has absolutely no cultural relevance, and neither does the gorgeous piece of art that you framed and put on your wall.  It is not the act of creation that makes culture; it’s what happens to that creation after it leaves the hands of the creator.

We are now in a position to answer the question we asked at the beginning:  Who gets to own our culture?  The answer is this:  The people who popularize it.  Media conglomerates end up owning a lot copyrighted culture because they profit from taking raw creations and promoting them to the status of culture.  And, generally, creators are only too happy to exchange their copyrights for money and a bit of cultural notoriety.

Having answered the initial question, we can now ask a deeper question, the real question, namely, if significant parts of our culture are owned by the media conglomerates that popularize them, is this a desirable state of affairs?  And the answer, I think, is an unequivocal no.

This new question — the real question — is a question about power.  The question is about who has the power to determine what is culturally important and which voices get heard.  And the reason why the answer is no, the reason why we do not want media conglomerates to own our culture is because their choices about what is culturally important are dictated by what makes them the most money, not by the merits of the cultural artifacts that they promote.

When Disney decides to finance another Star Wars movie instead of a biting satire of the political system, that decision is driven by money, not by artistic merit or cultural need.  And, as a business, that’s their prerogative.  But, just because that decision is good for Disney does not make it a good one for our culture.  And our culture is more important than Disney’s bottom line.  As a culture we need to ask:  Who do we want to own our culture?  Who gets the power to decide what is culturally important?  We can do much better than outsourcing this power to giant media conglomerates.  But … how?

They key lies in the mechanism for owning culture:  Copyright.  By allowing companies to buy and concentrate ownership of copyright, we have turned culture into a commodity, where one piece of culture is as good as another as long as it can be bought and sold.  In such a market, it is money that dictates cultural importance, not ideas or artistic merit.

What is the alternative?  One possibility would be to attach copyright to the creator permanently, to make creators the permanent owners and guardians of the culture they create.  The appeals to the intuition that creators should own culture, and perhaps they would do a better job of cultivating culture than corporations.  But, such an arrangement ignores the fact that cultural value truly comes from sharing, not from creation.  If we are to respect that fact, our culture must be owned by all of us.  Which is to say, it should be a commons, owned by no one.

If we want our culture to be a marketplace of ideas, where the best ideas rise to the top and gain the most cultural resonance, we cannot allow it to be a marketplace of commerce, where the most successful ideas are the ones with the most money behind them.  To achieve that, to de-commodify our culture, we cannot allow culture to be owned.  Once culture can be owned, it can be bought and sold.

To do that, our system of copyright must change drastically.  Instead of being a system of ownership — a system of intellectual property — it must become a system for protecting the integrity of our culture.  If copyright is about who has the power to shape our culture and whose voices get heard, it needs to vest that power in the people who are best suited to creating and improving our culture, and it needs to concentrate that power in the hands of the people who have the best track record of creating positive cultural change.

This means creators.  But, not just any creators; it means creators who drive our culture forward.  Rather than rewarding every act of creation with ownership, copyright should reward those who create culturally significant works with the resources to continue creating them.

The mechanism for this is not ownership but reputation.  Rather than controlling who is allowed to access culture, copyright should encourage culture to be shared as widely as possible.  After all, culture is built on sharing.  But, whenever a piece of culture is shared, whenever the stock of that culture begins to rise, that culture should bear the imprint of its creator, and the creator should be indelibly identified with that creation.  In this way, the creators of the most resonant pieces of culture will become culturally significant along with their creations — and will be in a position to reap the benefits.

Copyright would thus become a system for ensuring that social power flows to the most culturally significant people rather than to people who are famous for being famous.  Imagine a world where we had never heard of Paris Hilton but Marie Curie had attained equivalent status and social power.

Achieving such a system in today’s political environment seems … unrealistic to say the least.  And, exploring such a radical change to copyright in depth would like require a book or two (or a documentary).  So, in envisioning this new kind of copyright system, I do not expect to make it a reality.  But, in all the reading I’ve done about copyright over the years (and it’s quite a lot), I’ve often felt that the problems of copyright have been much better explained than any sort of vision for what copyright could be.  Perhaps that’s why copyright seems to have progressively become worse for culture rather than better.

So, in honour of World IP Day (though probably not in the spirit intended by WIPO), I hope I have articulated a vision of copyright that could enliven and enrich our culture rather than restrict it.  As imperfect as it is, at least it holds a glimpse of a better system.