Prof. Ariel Katz and LLM student Liran Kandinov: "TPP trades away our constitutional rights"

Imagine one day the government decides to place substantial amounts of 20th-century cultural heritage beyond reach for most Canadians. “This can’t happen,” you might say, but it did.

Without any legislative debate or public consultation, and buried inside the budget omnibus bill, Stephen Harper’s government bowed down to back-door lobbying from the music industry and extended the term of copyright protection for sound recordings. But this was only a discordant prelude for worse things to come. Recent leaks indicate that during the ultra-secretive negotiations of the Trans Pacific Partnership Agreement (TPP), the government agreed to extend copyright terms for all types of works.

Copyright is a double-edged sword. It can encourage the production of new expressive works by allowing authors to control and receive payment for certain uses of those works. But an author’s legal monopoly in her expression necessarily limits the expressive opportunities of others and also restricts access to and use of works, raises their prices, and imposes costs on potential users who need to find the owner to strike a bargain.

Moreover, copyright can be used, and occasionally has been used, as a potent tool of silencing and censorship. That is why the Supreme Court of Canada emphasized that “excessive control by holders of copyrights … may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole.” When the term of copyright is too long, or when its scope too broad, copyright does more harm than good.

Recent studies show that those harms are real. For example, in 1998 the U.S. added 20 additional years of copyright protection that caused alarming portions of cultural heritage from the 20th century to become out of print commercially and beyond reach legally. The New Zealand government estimated that extending the terms of copyright will impose an annual cost of around $55 million (C$47 million). In Canada, with a population eight times larger, the cost would be C$376 million. This estimate relates only to the direct costs of paying for works that remain in circulation. The harms to expressive activities, to innovation, research, education, and cultural preservation, resulting from the forgone opportunities to use works under excessive copyright terms could be much higher. Many of those harms are not quantifiable.

But 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. Adding 20 more years of exclusivity will restrict both our right to convey meaning through our own expression, as well as our right to obtain information and use the expression of others. The Canadian Charter of Rights and Freedoms protects both, and thus places on the government the burden to justify the limitations.

The government must establish a “sufficiently important” objective for limiting a Charter right. If such an objective exists, the government must also demonstrate that the limitation is proportionate by showing that the law is rationally connected to the objective; that it impairs freedom of expression no more than necessary to achieve that objective; and that the benefits of the law outweigh the harms to the individuals affected, in this case, all Canadians who will be facing a shrinking public domain.

The government may face serious difficulties in satisfying all of these requirements, not only because so far the current and all previous governments sensibly opposed demands to extend the terms of copyright, but also because the overwhelming consensus among independent intellectual property scholars and economists, and a growing body of empirical evidence, indicate that such term extensions yield net social harms.

Since there has been no public consultation before the government decided in a stealth move to extend copyright owners’ legal monopoly (ironically, in the name of “free trade”), it is hard to know how the Conservatives thought they could justify limiting Canadians’ freedom of expression, and whether they thought about the issue at all.

Whatever was the former government’s motivation or persuasion, the Charter constrains the ability of all governments to limit our fundamental rights and freedoms and to trade them away in return for some economic or political gains the government deems expedient. The decision to extend the terms of copyright may have been the Conservatives’, but the duty to guarantee our rights and freedoms under the Charter now rests with the Liberals.

We call upon the incoming Liberal government to clarify its position and open it to public debate, prior to signing or ratifying any international agreement committing Canada to violate our constitutional rights.