The TPP and Public Domain Content in Canada

By Jim Clifford

Today in Canada you can legally distribute, download and create new editions of George Orwell’s 1984,  Rachel Carson’s Silent Spring, Vita Sackville-West’s Passenger to Teheran, Georges Lefebvre’s work on the French revolution, Ian Fleming’s Bond novels, Ernest Hemingway’s many short stories and novels, and for all the fans of the staples thesis, the works of Canadian political economist, Harold Innis. Many thousands of lesser known authors also fall into the public domain each year, creating a growing source base for digital history and the digital humanities more generally. There is also a flood of audio and film recordings entering the public domain under Canada’s current rule that limits copyright to 70 years after the recording (it was 50 years until earlier this year).

This is very good for scholarship and teaching. It makes it possible for digital humanists to create innovative digital editions of the public domain material. Project Gutenberg Canada and other websites are allowed to post a growing catalog of open material that we can use to build corpora of resources for research and text mining. As professors, we take advantage of the internet and public domain material to assign free readings for students in our undergraduate classes. Material from the 19th century is safe, but the new rules will limit what we can use for teaching mid-20th century history (we can still use one chapter or 10% under fair dealing).

Four years ago Canada passed the Copyright Modernization Act through a relatively open and democratic process where experts and stakeholders testified before parliamentary committees. The Trans-Pacific Partnership Agreement (TPP) has changed all of that. In the context of secret negotiations, this emerging trade agreement threatens to force Canada to rewrite this law. Did the negotiators consult any stakeholder in the archives, libraries, publishing industry or experts in internet law?

What is truly alarming, is that it appears the trade agreement copyright clauses are retroactive. This means that instead of stopping anything new from going into the public domain for 20 years, to bring Canada up to the new standard, we might have to pull a massive number of books and other media out of the public domain. Project Gutenberg Canada and Michael Geist, a Canada Research Chair in Internet and E-commerce Law, both believe that works by authors who died less than 70 years ago will be removed from the public domain. Chapter 5 of the TTP agreement, which Wikileaks released last week, includes a special provision for New Zealand that does not require the country to “restore or extend the term of protection to works that have fallen into the public domain”. There is no equivalent prevision for Canada.

This means Project Gutenberg Canada and other websites might need to take town Orwell’s books until 2021 and Hemingway’s works until 2032. People with active research projects will be forced to pull websites down and it will create major problems with legacy class projects posted on the web by former students.

This creates uncertainty in our research. I’m currently digitizing Harold Innis’ work on economic history. Ideally I’d post this material and any results we get from text mining to the internet for others to use. Now there is a chance we will have to take it down for a period of time between the ratification of the agreement and 2022, the year after the 70th anniversary of his death.

We are still waiting for many other details from the TPP agreement. Given that Hilary Clinton currently opposes the deal, it is not at all clear when or if it will be implemented. Nevertheless, it does seem that the repercussions go a lot further than threatening the livelihoods of auto parts workers and dairy farmers which have been the sole focus the press and politicians.

Further Reading and listening:

Jesse Brown interviewing Michael Geist, Canadaland Episode #:103TPP: Spying, Blocking, and the Internet.

Michael Geist, “Canada Caves on Copyright in TPP: Commits to Longer Term, Urge ISPs to Block Content

Bibliocracy Tumber post: The TPP


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