The Canadian Public Domain under threat

20-year copyright extensions planned for Canada (and New Zealand, and Japan...)

Comments on the hidden agenda of the Trans-Pacific Partnership by Dr. Mark Akrigg, Founder, Project Gutenberg Canada


At the end of December 2011, the Government of Canada launched domestic consultations on Canada's possible participation in the Trans-Pacific Partnership, a trading bloc of certain Pacific Rim countries. It has become clear from leaked information that the TPP poses a grave threat to Canada's cultural heritage. As part of this consultation, Dr. Mark Akrigg, founder of Project Gutenberg Canada, has provided the following comments to the government on the risks to Canada posed by the TPP.

Dr. Akrigg's comments

12 February 2012


  1. The copyright extensions proposed as part of the Trans-Pacific Partnership are an unacceptable infringement of Canada's cultural sovereignty. The TPP must not be used by other countries to impose their copyright systems on Canada.
  2. The intellectual property chapter and other sections of the TPP disqualify it in its current form as a free trade agreement. It must be considered a managed trade agreement that is contrary to Canada's interests.
  3. The benefits of the TPP minus its huge disadvantages can be obtained through the relatively straightforward and uncontentious process of negotiating a genuine free trade agreement with Japan.
* * *

It is a pleasure to participate in the public consultation on Canada's potential participation in the Trans-Pacific Partnership negotiations.

My name is Dr. Mark Akrigg: I am the founder of Project Gutenberg Canada, a website launched in 2007 offering free digital editions of books for which copyright has expired, and which are consequently in the Canadian Public Domain. This submission represents my personal views on the Trans-Pacific Partnership.

Most books are printed only once, and the monetary value of copyrights is typically exhausted after 20 years at most. The existence of the public domain does not harm the original (long-dead) authors, but confers huge benefits on the public, who have full access to their cultural and intellectual heritage.


If there were no Canadian public domain, there would be no Project Gutenberg Canada. But the public domain is of huge benefit to the entire Canadian people: without the public domain, most of our cultural heritage would become inaccessible, and our universities, museums, and archives would be unable to carry out their very important cultural missions. Every aspect of our lives would be affected.

Canadians recognize this. No Canadian political party has ever favoured extending copyright beyond the term of 50 years after the author's death, mandated by the Berne Convention. Bill C-11, the copyright bill currently before Parliament, wisely leaves this basic term in place. And it became clear from the government's Copyright Consultations in 2009 that there is no support from the public for extending copyright durations.


An extension of copyright terms in Canada as a result of the normal democratic process is unthinkable: no political party would propose it, and public opinion would instantly reject it if proposed.

If, however, copyright extensions were a secret component of trade negotiations, and their presence was only revealed at the last moment, it is possible that these extensions could be forced through, against the public interest, since they could be presented as the necessary price of a trade agreement. This is very much how Australia ended up extending its copyright durations: not because the people of Australia wanted to see their public domain crippled, but because it was presented as part of a "free trade" agreement with the United States.


Public pronouncements on the Trans-Pacific Partnership have not mentioned copyright extensions. However, the contents of the U.S. government's TPP draft intellectual property chapter have become known: they are ugly indeed, and in stark contrast to the current practices of Canada, and of most countries.

The most shocking proposal is that 20 years be added to the duration of copyright. The fact that this proposal, which would affect many millions of citizens in Canada, New Zealand, and Japan, is being made in secret is astounding, and literally unacceptable. International agreements should never by used as a way of bypassing national parliaments and forcing through legislation against the will of a country's citizens.


Since the public domain, by definition, belongs to the public, copyright extensions are a tough sell. In fact, they are impossible to sell: the citizens of the world will not knowingly consent to their property being confiscated. If Banff National Park were put up for sale to condo developers, the citizens of Canada would of course reject any such deal. Similarly, the public domain belongs to the people of Canada: we, the people, will not allow our own property to be expropriated, particularly by foreign governments acting under the cover of what is represented as a trade agreement.

Consequently, to the maximum extent possible, these extensions are done out of the public's sight and out of the public's control. The original disastrous 20-year extension of copyright in Europe was done by the European Union in the interests of "harmonization" with Germany's extra-long Life+70 copyright term: no consideration seems to have been given to the rights of most European citizens to what had been their public domain.

Similarly, in the United States, the 20-year extension was passed in 1998, when the furore over the possible impeachment of President Clinton was at its height, and public attention was distracted. The bill was passed by a voice vote: there is no record of who supported it or opposed it. There has always been suspicion that massive corporate lobbying rather than any regard for the public interest was responsible for the extension; and the undue role played by corporate political contributions continues to be a source of lively debate in the US. In January 2012, after the Stop Online Privacy Act lost support in the White House and in the US Congress following unprecedented public protests, Christopher Dodd, the CEO of the Motion Picture Association of America, said on Fox News that "Candidly, those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake...Don't ask me to write a check for you when you think your job is at risk and then don't pay any attention to me when my job is at stake":

It is hard to avoid the conclusion that corporate lobby groups think they are buying something when they make political donations, particularly in the area of copyright law. Perhaps this is why the 1998 US copyright extension has been called the Mickey Mouse Protection Act.

The relevance of this is that the intellectual property draft chapter of the Trans-Pacific Partnership was provided by the United States government. If this draft chapter is nothing more than a wish list from corporate lobby groups using their government as a courier service to deliver legislation that other countries must then enact, it is worse than a waste of time: it is a menace to the public of every single country in the Trans-Pacific Partnership, since it makes a mockery of the principles of transparency, and of representative democracies upholding the interests of their own citizens.

All things considered, Canada has an admirably honest system of government, with many safeguards against interference by corporate interests. The United States, unfortunately, is not at the same level. As a Canadian citizen, I absolutely cannot agree that the US proposals for intellectual property should be given consideration. These proposals are too harmful, and their origins are too murky. In particular, the proposed copyright extensions should be rejected out of hand.


Greatly to its credit, the present government has actively pursued a policy of signing free trade agreements. The agreements have generally been one-on-one, meaning that both parties are acting freely, and that they are true agreements, done with full knowledge and without any kind of coercion. They are, in fact, concerned with genuine free trade, whereas the Trans-Pacific Partnership appears to involve managed trade, with numerous restrictions which would have the result of increasing prices in Canada and decreasing choice -- the exact opposite of genuine free trade.

The evidence for the TPP involving managed trade rather than free trade can be found in such proposals as:


In free-market countries such as Canada, governments take enormous pains to ensure open competition. Sometimes the government takes specific action to increase the level of competition. Here I would like to thank the government for one such action which has affected my own life positively: thanks to the opening of Canada's cellular market, I now enjoy a very high level of service at a price that would have been unthinkably low before the market was opened. This is the magic of the free market.

Monopolies of any kind are contrary to the principle of the open market. There is indeed a social consensus that it is reasonable to sanction copyrights and patents as TEMPORARY monopolies, to benefit works' creators. But these monopolies must be truly temporary: if they last too long, they become harmful and essentially permanent monopolies. As things stand, copyrights last for a full half century after an author's death. Clearly, these gigantic new twenty-year copyright extensions would in no way benefit the original long-dead authors. All they would do is raise prices and restrict choice.

As a matter of competition policy, the Government of Canada should state that Canadians will not accept copyright extensions being included in the TPP.


As may already be apparent, I have a strong background in economics and finance, and would like to offer one or two final observations.

Indications are that considerable pressure is being placed on various countries to accept a very controlled trade regime under the TPP. Canada should not accept any such pressure. The TPP agreement must be to Canada's benefit, and must be an agreement reached freely, without coercion.

If (as seems likely) this is not possible, the best solution would be to walk away from the TPP. We would be unlikely to be the only country to do so. Once we were freed from the TPP, the obvious next step would be to negotiate an equitable trade agreement with Japan. Once this was done, we would have virtually all of the advantages of the Trans-Pacific Partnership, with none of the obnoxious clutter.

The other truly large countries involved in the TPP are the US and Mexico, and in their case the TPP is entirely unnecessary: we already have NAFTA.

Not participating in a detrimental TPP agreement would put us in a strong position to pursue trade ties with China. A strong transpacific trade system without the participation of the Republic of China is difficult to imagine, but that seems to be what the current TPP proposes.


The Government of Canada should firmly reject any attempted intrusion by the Trans-Pacific Partnership into Canada's copyright, patent, and trademark legislation. These vital areas of jurisdiction must permanently remain under the jurisdiction of Canada's elected parliament, now and in the future. They should not be under the control of foreign governments.

In particular, any attempt to mandate copyright extensions should be firmly rejected. Copyright extensions are an attack on the property of the citizens of Canada, and would be catastrophic in their effect on the preservation and diffusion of Canada's cultural and intellectual heritage.

Once again, I would like to thank the Government of Canada for inviting comments from the public on the Trans-Pacific Partnership.

Mark Akrigg, MBA, PhD
Founder, Project Gutenberg Canada
Toronto, Ontario