In a struggle to be happy and free

Drystone Wall

Upsetting the balance

Copyright protection is an artificial construct. Without copyright, new artistic creations would enter the public domain and become part of our culture as soon as artists release their works. With copyright protection, the government allows artists to enjoy exclusive control of their creations for a set period to encourage their creativity. Then, when the copyright period on their work expires, it enters the public domain so anyone can build upon it to enrich our culture. You can look at it as a compromise. The public is not allowed to take full advantage of new creations to encourage artists to create more. It’s good for both the artists and the public, as long as it maintains a balance between the interested parties.

In the past, copyright has worked differently than it does now. Under the Copyright Act of 1842, copyright protection lasted for the life of the creator plus 7 years, or 42 years from publication (whichever was greater). The Copyright Act 1842 was a British law which affected Canada, since Canada was a British colony at the time. After Confederation, Canada enacted its own copyright regulation, the Copyright Act of 1875, which change the period of protection to an initial term of 28 years, with option to renew for another 14 years.

Today, things are quite different. The terms of copyright protection depend on the artistic work. For example, if you write a song, copyright will protect the song for the length of your life, plus 50 years. If you record the song and release it, the recording, until very recently, would enjoy copyright protection for 50 years from the recording date. Why the song itself and a recording of the song have different terms, I don’t know. In once sense, it doesn’t matter because while the recording is protected for only 50 years, the recording is merely one performance of the song, and the song is protected for the artist’s life, plus 50 years. Once the first 50 years expires, the recording falls into the public domain, but the song (the composition itself) is still protected.

Earlier I said that until recently, a recording enjoys copyright protection for 50 years. This is because in the latest federal budget, the Conservative government extended copyright protection on recorded works from 50 years to 70 years. Certainly copyright issues are not at all related to the budget, but this government is absolutely in love with omnibus bills, in which they include all sorts of unrelated items in the hopes that comparatively unimportant, but unpalatable items, are accepted because of the higher profile, more desirable items in the bill. This is why a copyright extension appears in a budget.

But honestly, does a 70-year term of copyright protection really serve the balance for which copyright was created? I’d suggest that it does not. To encourage the creation of artistic works, copyright protection must expire so the artist is encouraged to create new items. It’s not hard to imagine that the bulk of most artists’ creative output occurs after they are 20 years old. Most people don’t live until the age of 90, so a 70 year protection is effectively life-long. If the artist hits it big and has enough money to live on, they need not create anything ever again. This does not at all serve the public.

The first copyright protection in the United States had a term of only 14 years, with a 7 year renewal being an option. Now that would certainly encourage an artist to keep creating new works!

Of course the elephants in the room are the record companies. They’re the ones who want the longest term possible, because they hold the copyright on the artist’s work. Handing them ownership of the copyright is a term of the record contract. For all their belly aching about how the artist needs protection, it’s really their own interested they serve. This clear when you consider the terms of a record deal. The record companies to everything they can to make sure the artist makes as little as possible.

Prime Minister Stephen Harper. He is always ready to help out a business pal.

So here we have a government who extended the copyright term on recorded works. No one saw this coming. There was no public consultation, no debate, and not even any notification that this was being considered. Yet as soon as the government released the budget, literally minutes later, Music Canada (representing Sony, Warner, and Universal Music) posted a press release stating how pleased they were at this announcement. Further, Prime Minister Stephen Harper wrote to Music Canada President Graham Henderson stating that he felt a 50 year copyright term wasn’t sufficient to protect artists, so it would be extended to 70 years. The letter was dated April 11, 2015, the same day the government tabled the budget. All the big U.S. labels had to do is write a letter and ask for the copyright term extension and the Prime Minister fell all over himself in compliance. I’ve written the Prime Minister several times and I can assure you that I’ve yet to even receive a reply, much less get what I want.

In the balance between the artists who create the music and the public who buys and enjoys it, who does the Harper government reward so richly? Neither of course. They shower favour upon the foreign companies who do their absolute best to screw both the artists and the public.

This is the Harper government, at its finest.

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2 Comments

  1. Gustavo

    Hi, I just want to bring to your attention that this is wrong: “In once sense, it doesn’t matter because while the recording is protected for only 50 years, the recording is merely one performance of the song, and the song is protected for the artist’s life, plus 50 years. Once the first 50 years expires, the recording falls into the public domain, but the song (the content of the recording) is still protected.” Maybe it is a typo but once the underlying composition is in the public domain, you are free to do whatever you want with the composition, even record your own arrangement regardless of whether there are other recordings out there of that same song. The reason is that there are two separate sets of copyright running “together” in a sound recording. One for the musical work (the composition) and one for the sound recording itself. You are right when you say that the owner of the sound recording owns that specific performance. Once the musical work is in the public domain, the composition is free to copy, perform, distribute etc etc.

    I hope this helps. I know it is confusing!

    • Rick

      We’re definitely on the same page, Gustavo. I think my description was lacking. When I said, “the content of the recording,” I see that you could read this as the recording, where I meant the composition.

      So I mean that the 50 year copyright of the recording doesn’t mean the song enters the public domain because the composition is protected for the life of the songwriter plus fifty years. So the composition will be protected longer than the recording…if the recoding is made soon after the song is composed, as it typically is.

      I suppose a younger artist could get permission to record the song after the original artist dies. In this case, the copyright on the composition would expire before copyright on the younger artist’s recording.

      I’m going to update that parenthetical remark and hopefully clarify my meaning.

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