Sunday, January 01, 2017

Welcome, Mr. Walt Disney, to the Canadian Public Domain

(Disney in 1946 - Wikipedia)

Today is public domain day in Canada for the works of any sole or last surviving joint author who died in 1966. Canada has a copyright term of life + 50 years.

Walt Disney, the person, died on December 15, 1966. This means that any works of which he may have been the sole or last surviving joint author are now in the public domain in Canada as of January 1, 2017. It will be interesting to see if there are such works. In Canada, there can sometimes be legal and factual complexity and uncertainty in the determination of authorship and the copyright term of films.

As anyone who knows anything about copyright law knows, it was The Walt Disney Company that pushed the US Congress and the Clinton administration to extend the American copyright term to life + 70 years in 1998 through the Copyright Term Extension Act, sometimes referred to as the Mickey Mouse Protection Act.

There are no credible policy reasons to extend the copyright term beyond that of life + plus 50 years. However, there are billions of reasons in the form of dollars for shareholders in legacy copyright-based companies, such as Disney, to do so. Not only will revenue streams be extended – but term extension sets up effective barriers or delays to entry for anyone who dares to emulate Disney’s business model that was built upon exploitation and reliance upon the then much more recent entry of works into the public domain. Here is an article in Forbes by Derek Khanna entitled 50 Disney Movies Based On The Public Domain.

Indeed, those who believe in innovation should strongly oppose term extension. There is no substantial incentive value to any living creator – and obviously no incentive value whatsoever to dead creators – involved in the theoretical possibility of windfall revenues for great-great grandchildren and even beyond. Indeed, excessively effective copyright protection can serve as a disincentive to creativity. See F.M. Scherer’s brilliant book Quarter Notes and Bank Notes: The Economics of Music Composition in the Eighteenth and Nineteenth Centuries.  He suggests that “In the case of Verdi, greater remuneration though full exploitation of the copyright system led perceptibly to a lessening of composing effort.” (p. 194). Verdi, of course, is high if not on top of the pantheon of opera composers. Copyright is not the only and arguably far from the most efficient tool to incentivize literary, dramatic, musical and artistic creativity.

Canada, China and many other countries have not followed Disney’s company’s wish to extend the copyright term to life + 70 years. I take some credit for stopping a stealth move by the Canadian Government to extend the copyright term in 2003. Here’s my “Mouse in the House” National Post op-ed that played a significant role in that resistance. Canada, to its credit, held the line on the life + 50 term in CETA – even though the EU had long since gone to life + 70 even before the Americans. However, the now apparently dead TPP (which Canada had signed) would have extended the term to life + 70 in Canada.

If NAFTA is really going to be reopened as Trump threatens, look for American pressure as focussed and amplified through the usual Canadian lobbyists to escalate the Canadian copyright term to life + 70.  Hopefully, Canada will stand its ground.  The previous Government shamefully snuck through a 20 year term extension in 2015 for sound recordings in an omnibus budget bill at the behest of lobbyists for the American recording industry. I wrote the following on November 17, 2015 based upon a recent New Zealand government study:
Assuming that the New Zealand study methodology for calculation of the cost of a 20 year copyright term extension were to be more or less applicable to Canada and that the results would be more or less proportional to the difference in GDP, here are some admittedly “back of the envelope” calculations:

The average present value of the cost of 20 year copyright for recorded music and books term extension (which included an estimate for film and television) was estimated by NZ is NZ $505 million, which is CDN $434 million, which adjusted by GDP ratio, would work out to about CDN $4.176 billion.

The average annual cost for NZ is NZ $55 million, which is $CDN 47.3, which adjusted by GDP ratio, would work out to about CDN $454 million.

Other notable creators who died in 1966 include:
  •  Lenny Bruce, comedian
  •  Alberto Giacometti, painter and sculptor
  •  Evelyn Waugh, author
  •  C.S. Forester, author
  •  Buster Keaton, actor and director
Canada welcomes them and Mr. Walt Disney himself to the public domain in Canada.


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