Mouse in the House:; [National Edition]Howard Knopf. National Post. Don Mills, Ont.: Jun 7, 2003. pg. FP.11

Howard Knopf is a copyright lawyer with Macera & Jarzyna LLP in Ottawa.

A new bill in Ottawa appears set to adopt U.S.-style copyright term extension. Among other things, it will curb the study of Canadian history

There is a mouse in the House of Commons hiding in a certain Bill C-36 that is ostensibly about merging the National Archives with the National Library. Whether or not this merger is a good thing, it may be overshadowed by copyright provisions buried inside this bill that would postpone or deny the right of Canadians to hear their stories for several decades. Copyright term extension, a very unwise American concept perfected by the Walt Disney Company in the name of Mickey Mouse himself, is coming to Canada.

On June 3, I testified to the House of Commons heritage committee on my own behalf and on behalf of Professor J. L. Granatstein, pre- eminent Canadian historian and former director and CEO of the Canadian War Museum. He has done definitive and comprehensive work on Canada's military and political history covering the very period that this bill would most affect. This bill would restrict his further research and publication.

Lucy Maud Montgomery died in 1942. Her copyrights in her published works ran out, of course, in 1992, 50 years after her death. Nonetheless, through other intellectual property means using the Trade-marks Act, the Anne of Green Gables machine continues to generate lots of money.

But now, Montgomery's heirs have convinced the Canadian government to extend the copyright term in her still unpublished works for much, much longer, in fact up to 96 years after her death. The heirs would make even more money. So, why is there a problem?

Simply because much more than Montgomery's estate is at stake. Canadians would have to wait another 14 to 34 years to get reasonable access to historical material in various estates of public persons who may wish to suppress it, to lock it up through publication effectively restricted by technological protection measures, or to price it so

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high as to effectively limit access, using the powerful weapon of copyright law. This would hardly help Canadians to tell their stories.

The bill would rewrite legislation passed just five years ago. Examples of dead persons affected include:

- R.B. Bennett (d. 1947), prime minister of Canada during the Depression, who died a viscount in his bathtub living in splendid upper-class retirement in England.

- Sir Robert Borden (d. 1937), prime minister of Canada from 1911 to 1920 through the Great War and opponent of Laurier on reciprocity with

the U.S.A., Canada's perennial issue.

- Sir Wilfrid Laurier (1841-1919). Legendary prime minister of Canada. Any of his unpublished works could now have protection until 2024 if first published before the end of this year.

- Stephen Leacock (d. 1944), Canadian educator, economist biographer and legendary humorist and chronicler of Canada's earlier soul.

- Archibald Stansfeld Belaney, a.k.a. Grey Owl (d. 1938) writer, conservationist and wannabe aboriginal.

These amendments could set the stage for a U.S. style copyright extension movement in Canada. Recently, the Walt Disney Company persuaded the U.S. government to extend copyright terms for 20 years,

a move condemned by countless academics, researchers and Nobel prize winning economists who care about public policy. Term extension is simply about money for heirs and shareholders. It provides no incentive to dead or even living creators. In fact, it creates serious deadweight losses to society in terms of increased research costs, denial of access, and the sterilization of creativity itself.

Bach copied from Vivaldi and Disney copied from the Brothers Grimm, Kipling and Hugo. Now, the Disney empire wants to postpone the participation of others in this paradigm for as long as possible.

The study of history will be seriously affected, and thereby the evolution of history itself. As Santayana said, those who cannot remember the past are condemned to repeat it. This bill could

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seriously hamper research and publication on such crucial figures as Borden and Bennett, according to Prof. Granatstein.

Under U.S. law, the still unpublished writings of a dead author were protected until Dec. 31, 2002, or 70 years after death, whichever comes later. So, any unpublished work of John F. Kennedy will enter the public domain no later than 2033, even allowing for the 20-year Mickey Mouse extension. Why should Canada have to wait until 2038 for all the works of Robert Borden, who died in 1937, to enter the public domain?

We did figure it out, or so it appeared, in 1997 with the passage of

the Bill C-32 copyright amendments, which were blatantly Hollywood, record industry and publisher friendly. Mostly, the other provisions of the legislation were harsh to academics, researchers, archivists, librarians and the Canadian educational system, all of whom seemed willing to settle for far less than their U.S. counterparts.

Now Canadian Heritage Minister Sheila Copps wants to rewrite the 1997 legislation to give even more to the estates of dead authors and their publishers and to offer, in return, the easing of certain administrative burdens on archivists. Frankly, they should never have been imposed, and were inconsistent with sensible notions of fair dealing, which should have been addressed in the 1997 amendments and should now be addressed, indeed redressed, as soon as possible.

The consultations on the current proposals were minimal and all but

hidden. A consultant's report was "published" early in 2003, and even those who knew about it were given only a few days to comment. This report was devoid of sufficient detail, and totally lacked any international comparative analysis as required by the issues.

The institutional academic community in Canada appears to have been either unaware or indifferent to these issues. Many distinguished Canadian historians and others who need to deal with the past are simply not aware of these proposals.

Some writers support the Montgomery estate's position. They suggested to the heritage committee this week that posthumous publishing of Canadiana will take place abroad if the bill doesn't pass. However, this seems unlikely, for legal or economic reasons; the market for

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posthumous Canadiana is very limited outside Canada.

The copyright provisions extending terms should be excised from Bill C-36. They should be dealt with in the context of overall review of the Copyright Act, as required by the legislation and as delayed by the government itself.

The process behind this bill raises discomforting questions. Is this the beginning of U.S.-style law-making, involving obscure "rider" provisions attached to legislation to which there is little or no connection? Just two weeks before this bill was introduced, I was on a panel with a senior official from Canadian Heritage at Fordham

University in New York on April 24, 2003. He was telling a group of influential Americans about what was coming in Canadian copyright. He did not mention this bill or even this issue. It came as complete surprise to me and many others when it was introduced on May 8.

We are witnessing an "everyone for themselves" rush to patchwork copyright revision, with no overall plan intact. Photographers have also just managed to have introduced a term extension bill in the Senate, Bill S-20, which apparently has Minister Copps' support. The music industry wants to rush ahead with the implementation and ratification of certain controversial treaties. There are also lots of folks who would love to rewrite or repeal aspects of the 1997 legislation, so the fate of these special-interest bills will be watched very closely.

Bill C-36 is on an apparently, though unaccountably, fast track and may become law soon, despite far more urgent business before Parliament. If it must and if it does, it should be without the unnecessary and problematic copyright provisions that were all too quietly included.