Following the SCC decision in CCH there has been renewed focus in Canada on balancing the rights of users with those of creators.1 Furthermore, with the most recent reformation of our copyright laws poised to die on the order paper for the second time in as many elections we are presented once again with the ability to improve our copyright laws.2 Intellectual property though sometimes considered an arcane art has far reaching consequences for the average individual.3 What I’d like to argue here is that the balancing of rights should not come at the expense of clarity.
The US Copyright Act weighs in at a hefty 326 pages.4 In contrast the Canadian analogue is a mere 80.5 It may well be justifiable then to lay blame for our copyright problems in Canada at the feet of a comparatively anorexic set of laws. The recent case of Penguin Group, Inc. v. Steinbeck in the US serves as a lens through which we might consider the logical consequences of such an assertion.6
In the Steinbeck case two of John Steinbeck’s sons, heirs to his estate, were denied termination of the copyright licenses attached to their father’s works.7 The court held that Steinbeck’s third wife had already re-negotiated the copyright licenses after his death and as such the purpose of termination under the US copyright act had been met.
Reversion, known as termination in the US, is designed to allow heirs or creators to escape from earlier improvident bargains. Under s.14 of the CCA reversion occurs automatically 25 years after the death of the author.8 Under US law reversion occurs after 56 years, upon written notice, within a five year window, and under other special circumstances as delineated on four pages of the act under s.304(c).9
On a plain, though hardly simple, reading it would appear under s.304(c)(2)(A) that Steinbeck’s widow should have obtained only a ½ interest in the copyrights of her late husband due to the existence of his two surviving sons. However, it should come as no surprise that a four page subsection can be the source of multiple and conflicting interpretations especially in the face of private contracts and/or testamentary gifts to the contrary. This is not the first time that the detail and compliance requirements of the US act have frustrated the attempts of a creator’s heirs to terminate prior agreements.10 In opposition reversion under the CCA has been the source of very little litigation – this suggests, on at least one interpretation, that its application and limitations are simple, clear, and understandable.11
Canadian copyright laws are in desperate need of reform and a further balancing of user and creators rights is critical as we move towards an increasingly re-sampled media rich environment. As we go about this task Steinbeck should stand as a reminder to us that intellectual property laws impact the average citizen. Despite the historical tendency to view and develop intellectual property laws for the legal elite the usability, brevity and clarity of our laws are critical to the creative and inventive engines, that is the individuals, in our society.
[2] See http://www.nationalpost.com/news/canada/story.html?id=764309
[3] David Vaver, Essentials of Canadian Law- Intellectual Property Law (Concorde: Irwin, 1997) at 115.
[4] Copyright Law of the United States, 17 U.S.C. (2007) http://www.copyright.gov/title17/circ92.pdf
[5] Copyright Act, R.S.C. 1985, c. C-42 http://laws.justice.gc.ca/en/ShowFullDoc/cs/C-42///en
[6] Penguin Group (USA) Inc., et al. v. Steinbeck, et al., USCA Second Circuit, August 13, 2008.
[7] John Steinbeck was the author of such works as The Grapes of Wrath, Of Mice and Men and Tortilla Flat.
[8] Supra note 5 s.14.
[9] Supra note 4 §304(c).
[10] See http://money.cnn.com/magazines/fortune/fortune_archive/2003/01/20/335653/index.htm for a discussion of the battle over A.A. Milne's Winnie the Pooh stories.
[11]In Anne of Green Gables Licencing Authourity Inc. v. Avonlea Traditions Inc. (2000), 4 C.P.R. (4th) 289 (Ont. S.C.J.). the court considered the reversion interests of the plaintiffs and reiterated the simple and default nature of reversionary interests under the CCA.