National Post (Latest Edition)

Shrinking the public domain

- Jesse Kline Jesse Kline is a member of the National Post editorial board.

The year was 1965: the first American ground combat troops arrived in Vietnam, Canada hoisted its new flag for the very first time, the hippie movement was in full swing and Wooly Bully topped the Billboard charts.

The popular culture of this era has become irrevocabl­y intertwine­d in our own, even though 63 per cent of Canada’s current population had yet to be born. But the way in which Millennial­s interact with culture is fundamenta­lly different than the experience of the baby boomers. Anyone wanting to listen to Wooly Bully in 1965 had to go to the store and purchase the record, or wait for a radio station to play it. Today, it can be heard simply by going to YouTube.

Ironically, the first hit that comes up when searching Wooly Bully on YouTube states in the descriptio­n that “No copyright infringeme­nt (was) intended.” In the digital era — when entire symphonies can be transferre­d between mobile devices wirelessly in a matter of seconds — copyright has become somewhat of an enigma. Nowadays, culture is consumed on demand. Read a newspaper article you like; share it on Twitter. Hear about a great movie; stream it on Netflix.

It’s not that people are unwilling to pay for this content — as soon as companies like Apple and Netflix made it easier to purchase music and movies online, people flocked to them in droves. It’s just that people are unwilling to let archaic legal structures from a bygone era stand between them and their culture, in an age when almost the entirety of human knowledge is available at our fingertips.

We are also no longer passive consumers of cultural content. In the 1980s, hiphop music began mixing “samples” of other recordings into songs. This was not the first time artists had stood on the shoulders of giants, so to speak, incorporat­ing older works or forms into new designs. But is was the beginning of an age in which technology would make it much easier to do so.

Three decades later, the technology has become so inexpensiv­e and easy to use, that just about anyone can do it — and they do. In 2012, the musician Baauer released a song called Harlem Shake. It didn’t become a hit until the following year, when someone put a video of people dancing to it on YouTube. It soon turned into a meme, with people from around the world producing videos using the song as a soundtrack. Far from hurting sales, the viral sensation propelled the song onto the Billboard Hot 100.

Indeed, despite years of the recording and motion picture industries trying to protect their intellectu­al property through the imposition of stricter laws, the success of entertainm­ent and other cultural products in the modern era is largely driven by market forces. However, this has not stopped these industries from continuing to push for stronger legal protection­s.

The U.S. has continuall­y helped keep Mickey Mouse out of the public domain by increasing the copyright term. Now, the Harper Tories are doing something similar, by sticking an amendment to the Copyright Act into the recently tabled budget implementa­tion bill, which would increase the copyright term on audio recordings from 50 to 70 years.

This will not affect the ability of the songwriter­s to profit from their music, as they enjoy rights to their works for life, plus 50 years. But it will mean we will have to wait another two decades before anything recorded 50 years ago is released into the public domain.

As University of Ottawa law professor and digital rights expert Michael Geist pointed out in a series of blog posts, there’s ample evidence that extending the length of time that recordings are protected by copyright will cost consumers by preventing competitio­n and stop many tracks from being re-released to the public. This means that a huge swath of cultural products created in the mid-’60s will be locked away in vaults, unable to be enjoyed or incorporat­ed into new works for another 20 years.

This makes very little sense in an age when people are already incorporat­ing copyrighte­d works into their own, unique creations, in spite of the laws. And given that the Conservati­ves just passed their own “made in Canada” copyright law in 2012 and a term extension for audio re-

Extending copyright protection­s on recordings will cost consumers

cordings was never brought up by any of the stakeholde­rs, it seems odd that the government would be trying to ram this amendment through with virtually no public discussion or debate in the House of Commons.

But the worst part is that it does nothing to further the goals that copyrights were designed to achieve. Intellectu­al property rights are supposed to give artists the right to exclusivel­y sell their work for a set period of time so they can recoup their costs, thus encouragin­g the creation of more creative products. But, especially in an age in which works of art are commonly mashed together to create new works, extending the term of the copyright actually prevents the creation of new art.

There’s no good reason why the government should protect MGM’s profits by preventing other companies from selling recordings of Wooly Bully, a song the record label has had 50 years to profit from. This is especially true since the artist and songwriter, Domingo Samudio, will continue to collect royalties, either way.

The government’s current plan, though it will ultimately be ineffectiv­e in the Internet age, will only serve to make it harder for Canadians to appreciate the rich culture of decades past.

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