This is part of a series of posts on digital issues in NAFTA.
The renegotiated North American Free Trade Agreement (NAFTA) will probably include a chapter on intellectual property. One of the more contentious issues in the negotiations may be the term of copyright protection, a subject I have explored previously here on DisCo. The example of F. Scott Fitzgerald’s The Great Gatsby demonstrates the stakes involved.
In Canada, the term of copyright protection is the life of the author plus 50 years. In the United States, the term of protection is the life of the author plus 70 years. And in Mexico, it is the life of the author plus 100 years. During the negotiations on the Trans Pacific Partnership (TPP), the term of copyright protection proved to be a major stumbling block. Countries like Chile and Canada sought a term of life plus 50, while the United States demanded life plus 70. The United States prevailed; the final agreement required Parties to provide a minimum of life plus 70.
The Great Gatsby was published in 1925, and Fitzgerald died in 1940. Because of the differences in copyright term, Gatsby entered into the public domain in Canada, while it will remain in copyright until 2040 in Mexico. Under a life plus 70 regime, Gatsby should have entered the public domain in the United States at the end of 2010, seventy years after Fitzgerald’s death. However, the Sonny Bono Copyright Term Extension Act, enacted in 1998, contained a clause providing a term of 95 years from publication for works published between 1923 and 1962. Thus, Gatsby will not enter the public domain in the United States until the end of 2020, 95 years after its publication in 1925.
Depending on the term of protection included in NAFTA, Gatsby could be pulled back under copyright in Canada, or could receive an additional 20 years of protection in the United States. There is no policy justification for Gatsby receiving this additional protection. Indeed, there is no policy justification for Gatsby currently remaining in copyright here and in Mexico.