This article was prepared with the assistance of summer student Jacob A. Paczko.
After years of consultation and debate, Canada has passed legislation to extend copyright protection by 20 years to a “life-plus-70” term.
Amendments to the Copyright Act were included in Bill C-19, the Budget Implementation Act, 2022, No.1, and are expected to come into force before the end of the calendar year. This move fulfils a key commitment made by Canada in the Canada-United States-Mexico Agreement, and follows a 20-year extension to copyright terms for published sound recordings, performers’ performances and certain audiovisual works, which took effect in June 2015.
The Prior Copyright Landscape
Copyright protection is automatic in Canada. As such, it is not mandatory for an author or other copyright owner to use a copyright symbol – © – in order to gain protection under the Copyright Act, RSC 1985, c. C-42 (Copyright Act). Copyright protection arises upon a work being “fixed,” such as when a story is written on paper or a piece of art is painted on a canvas.
Unlike physical property and tangible goods, ownership in copyrighted material has a limited duration. For example, you can own a beautiful work of art or a great book for an indefinite amount of time; however, you can only own the intellectual property or copyright in that art or book for a limited period of time. Under Canada’s prior copyright regime, section 6 of the Copyright Act provided that the general rule for the term of copyright protection for published works was:
The life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.
This is often referred to as “life-plus-50.” Under this rule, an author has copyright in a work that they create throughout their lifetime. Following their death, the author’s heirs or assignees have copyright for a period of 50 more years.
It is important to note that the term of copyright is determined by the life of the author, and not the life of the copyright owner. Where an author sells their copyright and assigns their rights to another entity, the duration is still based on the life of the author. This is true even in works made in the course of employment, where the employer owns the copyright over the work.
An author’s moral rights last for the same term as copyright. Moral rights protect the author’s right to have their name on the work, remain anonymous or use a pseudonym. Moral rights also serve to protect the work from modifications that are deemed prejudicial to the honour, reputation or intentions of the creator. These moral rights also protect a work from being used in association with a product, service, cause or institution without the author’s consent.
The only caveat to the above information is that copyright in anonymous works or works created under a pseudonym lasts for the shorter of 50 years from first publication of the work or 75 years from the making of the work. However, if the identity of one or more of the authors becomes commonly known during the term of copyright, the general “life-plus-50” rule applies.
Once copyright in a work has expired, that work is said to be in the public domain. The work is no longer protected by copyright and can be used freely, without obtaining any consent from the copyright owner. Once work is in the public domain, there is also no obligation to compensate the prior copyright owner. As an example, the works of Shakespeare are now in the public domain and can be copied freely, provided that the works are not adaptations.
Term Extended to “Life-Plus-70”
Now that Canada is extending the term of copyright, it is important to keep in mind that the 20-year extension will not be retroactive. As such, copyright on any works that expired on or before December 31, 2021, will remain in the public domain. However, works that would have been transferred into the public domain at the end of 2022 will be subject to the new “life-plus-70” regime, and will thus be subject to copyright protection for another 20 years. Likewise, all existing and future works will benefit from the longer term.
The extension of this term allows Canada to meet its international obligations and create new investment and export opportunities for its creative industries. In the Canadian Government’s public consultation paper on copyright duration in Canada and related issues, the government stated its belief that a longer general term of protection will directly increase opportunities for Canadian rights holders to monetize their copyrightable works. Consequently, this will encourage investment in the creation, acquisition and commercialization of such works.
Canada’s general term will now be harmonized with major trading partners, which will afford Canadian rights holders the opportunity to compete internationally on a level playing field. For example, Canadian artists will now be able to collect royalties form the exploitation of their works in European Union countries, which only provide a 70-year copyright protection to nationals of countries that also provide 70 years of protection.
MLT Aikins lawyers have wide-ranging experience advising clients on protecting and commercializing their intellectual property. If you’re interested in learning more about copyright protection, contact a member of our Innovation, Data & Technology team.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.