Archived - LePan, Don

Canadian Copyright Restrictions: 50 Years Is Too Long

All laws governing intellectual property seek to strike a balance between the interests of the creator and the interests of the public at large. In the past generation there have been a series of changes to copyright in Europe and the United States that have significantly tilted the balance away from the public interest — perhaps most notably, by extending copyright restrictions to 70 years after the death of the author. Many have argued for similar changes in Canada, where copyright restrictions currently extend to 50 years after the death of the author. In some literary circles, indeed, this is a motherhood issue; it is assumed that any extension of copyright protection will benefit authors. In fact, extending copyright significantly reduces the chance that most authors will find an audience after death. And it certainly reduces the range of choices available to the reading public.

Let's begin with the effect on authors. Those who support extending copyright restrictions tend to assume that an author's work will be in print 50 years, and 70 years, after his or her death; the only issue is the division of the spoils in future generations. Authors as a group are imagined to be all in the situation of J.M. Barrie (the author of Peter Pan), Lucy Maud Montgomery, Stephen Leacock - or H.G. Wells or Bernard Shaw. For such authors, as for present-day authors such as Margaret Atwood and Michael Ondaatje, there is indeed a strong likelihood that their work will remain in print continuously for generations. For those whose reputations are even marginally less established, however, the future is far less bright. I know this situation intimately now from two angles.

At Broadview Press, an important part of our publishing program comprises editions of literary works of other eras, many of them "rediscovered" and brought back into print after having been unavailable for an extended period. Broadview, for example, has made available again Aleta Dey, an outstanding novel of the First World War by Canadian writer Francis Marion Beynon (1884–1951), and has brought back into print the early-20th-century novel Imre by Edward Prime-Stevenson (1858–1942) — a quirky book, but a historically important one, as it's one of the first gay novels with a happy ending. Books such as these are not reissued in the expectation that they will enjoy vast sales and be hugely profitable. On the contrary, the anticipated annual sale is typically no more than a few hundred copies, and the projected profit almost non-existent. When publishing houses issue such titles, they do so with a view to rounding out their list and providing a service for educators and students as well as general readers. At Broadview, such publishing enhances our reputation and we enjoy doing it, but it adds almost nothing to our profits.

The prospect of paying substantial royalties on marginal titles, however, is not the strongest disincentive for publishers wishing to reissue out-of-print works that remain under copyright. Much more daunting is the challenge of tracing heirs. A few moments searching on the Internet is enough to put one in touch with the estate of H.G. Wells or Lucy Maud Montgomery, but with writers even marginally less well known, the job of making contact with the copyright holder can be enormously time consuming and frustrating. The second and third tier of writers in any generation may be highly regarded in their day, but often become unknowns within a generation of their death — making the task of tracing the heirs of a Francis Beynon or an Edward Prime-Stevenson hugely daunting.

I can now also appreciate this situation directly from the other side, as literary executor for the estate of my father, Douglas LePan. The position of his work now is analogous to that of Beynon and Prime-Stevenson 50 years ago. During his lifetime my father was well known as a writer, and twice won the Governor General's Award. Now, however, just eleven years after his death, his books are almost out of print. No one in their right mind could imagine that the interests of either the author or of his descendents are best served by further extending the already substantial obstacles that stand in the way of a publisher wishing to reissue his work. Far from wanting to extend copyright protection — in this case from 2048 to 2068 — I would like to see it reduced to 2023 or 2018 — to 25 or 20 years after the death of the author. My brother and I do not delude ourselves that any vast royalty stream will flow to us or to our children from their grandfather's work. But we would like very much to see some of it in print.

I should perhaps also point out that, were my father's works currently enjoying the same level of popularity as is enjoyed by the works of Leacock or Montgomery or Atwood, we would still have no concerns about either ourselves or the author's grandchildren being shortchanged. Though I am far from persuaded on social justice grounds that anyone deserves a substantial income on the basis of their parent or grandparent having been a hugely successful writer, the fact that we have no estate tax in Canada makes it extremely likely in any case that wealth will perpetuate itself from generation to generation.

The benefit to readers if copyright restrictions do not prevent the reissue of interesting but long-forgotten literary works is obvious. But what of "canonical" works that have remained in print steadily for 50 years or more? Editions of the works of Shaw and Wells and Barrie and Montgomery and Leacock are already available. Is there a benefit to readers if these works are in the public domain? The short answer is yes; here, too, the public interest is ill-served by extending copyright restrictions. Let me again use Broadview as an example. The Broadview Editions that we publish include not only the text itself and an introduction, but also a substantial range of background materials that help to illuminate the literary and historical context of the work. The editions we have published of, for example, Stephen Leacock's Sunshine Sketches of a Little Town and H.G. Wells' The War of the Worlds offer readers a distinct and attractive alternative. When canonical works have long been out of copyright, readers and educators typically have several such alternatives to choose from. Norton Critical Editions offer one interesting approach and one set of background materials to accompany the text; Bedford Editions another distinctive alternative; Broadview Editions a third. Where work remains in copyright, though, it is typically impossible to offer readers this sort of choice; almost always the original agreement between the author and the original publisher will have stipulated an exclusive right to publication. Because of the extension of copyright restrictions in the United States under the Sonny Bono Copyright Amendment Act of 1998, American readers will be denied access to competing editions of The Great Gatsby until 2019 even though that book was published in 1924, and its author died in 1940. Broadview has published an edition that offers many, many interesting alternative perspectives on the text, but for years still we will be able to sell it in Canada, not in the US. In similar Fashion, with the extension of copyright restrictions in the European Union, British readers will be denied access to competing editions of H.G. Wells' The Time Machine and The War of the Worlds until 2016 — 70 years after his death and 120 years after the publication of The Time Machine. Do we really want the same restrictions here?

One other point: we should not assume that an author's heirs will always wish to have the author's works published. In many cases the heirs may wish to suppress material that it is in the public interest to have made available. Again, I will use my father as an example. I have been keen to see published the poetry he left unpublished when he died — a group of poems that have explicitly gay references. Dad stated in writing his desire to have these poems published, but one can easily imagine situations in which an author's heirs would prefer to have control over such material for as long as possible in order to prevent its being published, even generations after the author's death.

It's often thought that arguments against extending copyright restrictions are founded primarily on a distrust of the role that large multinationals such as the Disney Corporation played in pushing for the extension of restrictions. But one does not have to impugn the motives of Disney to understand why extending copyright restrictions is a bad thing for readers, for scholars, for educators, and for most authors. When intellectual property (such as that behind the invention of a new pharmaceutical product) is governed by patent law rather than copyright law, the restriction typically extends no more than 20 years after the introduction of the product. Under our current copyright law, by way of contrast, protection extends a minimum of 50 years after publication (in a case where the work was published in the last year of the author's life) and may extend for 100 years or more after the date of publication. Current copyright restrictions, in other words, extend up to five times the restrictions set out in patent law. Far from pressing for any increase in copyright restrictions, readers, scholars, and educators should be pressing for a substantial reduction in copyright restrictions. Fifty years is too long!

Don LePan

Don LePan
President Broadview Press