Speaker's Corner: Surprise copyright changes have no place in omnibus budget bill

There was great surprise in the Canadian copyright community when lawyers discovered, hidden away in the omnibus federal budget legislation tabled in the House of Commons on April 21, a provision proposing to amend the Copyright Act to extend the current term of copyright protection afforded to sound recordings and musical performances to 70 from 50 years.

If, as is all but certain, Parliament adopts the budget, record labels and musical performers will benefit from an additional 20 years of copyright protection. As such, sound recordings released in the mid-1960s will have another 20 years of existence during which their exclusive copyrights will continue. According to the explanation provided by the government in its budget proposal, this 20-year term extension approximates the term of protection afforded to other copyright owners who benefit from copyright protection throughout their lives plus a period of 50 years following their deaths.

Whatever the merits of this proposal, it came as a surprise as there had never been any public discussion of such an idea and the recording industry does not appear to have ever publicly promoted it.

In 2012, after seven long years of effort and following extensive consultations with a wide range of stakeholder groups, the government substantially revised the Copyright Act pursuant to the Copyright Modernization Act.
Then in June 2014, the standing committee of the House of Commons on Canadian heritage issued a report on the Canadian music industry. At no time was there any mention of a possible term extension for record labels and music performers let alone any discussion as to whether or not this might be a useful legislative change.

Instead, the proposal to amend the Copyright Act has come completely out of the blue with the sole apparent justification being that musical performers who made recordings in the mid-1960s are starting to lose their copyright protection, a situation that was equally applicable to any previous period.

It is unfortunate that the government chose to amend the Copyright Act in this way without any prior consultation with interested stakeholder groups or bothering to provide anything other than a cursory explanation as to the supposed justification for such an important legislative change. In our view, any amendments to the Copyright Act should follow a measured and balanced exchange of views within the copyright community as to the relative merits of the proposed change.

Until very recently, copyright lawyers could only speculate as to why the government would choose to act in this manner. Certainly, if this was such an important issue and was so high on the government’s legislative agenda, it could have very easily incorporated it into the 2012 amendments to the Copyright Act or raised it in the meetings held by the standing committee in 2014.  None of that ever happened.

In this context, it is of some interest that the recording industry’s principal trade association, Music Canada, issued a news release immediately following the tabling of the budget in which a number of prominent Canadian recording artists thanked the government for having introduced the term extension.

We now know, of course, that unlike most other stakeholder groups, the inclusion of this measure in the budget could not have come as a complete surprise to Music Canada. This is for the simple reason that Music Canada specifically requested the term extension pursuant to confidential lobbying efforts made directly to the prime minister.

As University of Ottawa law Prof. Michael Geist has disclosed, on the same day the government tabled the budget in the House of Commons, the prime minister sent a letter to the president of Music Canada thanking him for his “recent letter regarding the copyright term for sound recordings.” The prime minister stated: “I have reviewed the material carefully, and share your view that the current term of copyright protection for sound recordings falls short of what is required to protect artists and ensure they are fairly compensated for their work.”
He then indicated that the budget included a term extension for sound recordings.

Although the recording industry is obviously happy with the 20-year term extension, its introduction in the budget raises the thorny question as to whether the government should now reconsider the terms of copyright protection for other rights holders. For example, as soon as the government tabled the budget, the Society of Composers, Authors, and Music Publishers of Canada announced that while it welcomed the government’s “commitment to increasing copyright terms in Canada,” it was concerned that it “only referenced sound recordings and not the rights of creators and their publishers.” As such, SOCAN indicated its expectation that “this discrepancy will be addressed when the relevant legislation is introduced.”  Unfortunately for SOCAN, that did not occur.

Whatever the relative merits of the copyright term extension proposed in the recent budget, this is a matter that should be the subject of informed public debate and discussion as with all other previous amendments to the Copyright Act. That is particularly true in circumstances such as these in which stakeholder groups, other than Music Canada, had no prior notice that the government was even considering such an amendment. From a strictly legislative and procedural perspective, this represents poor public policy on the part of the government.
Simply put, such an important proposed change has no place in an omnibus budget where it is unlikely to receive the legislative attention it deserves.   

J. Aidan O’Neill and Ariel Thomas, both of Fasken Martineau DuMoulin LLP’s Ottawa office, practise primarily in the fields of intellectual property, communications, and media law with a focus on tariff proceedings before the Copyright Board and related judicial review applications to the Federal Court of Appeal.

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