The Complexities of Canada’s Extension of Copyright Protection for Sound Recordings

On June 23, 2015, Royal Assent was given to Parliament’s Bill C-59, otherwise known as the Economic Action Plan 2015 Act, No. 1, otherwise known as the federal government’s 2015 budget. Contained in the legislation are provisions which amend the Copyright Act (Canada) to extend the duration of Canadian copyright protection for sound recordings. For how long has copyright protection been extended? Well… it’s complicated – most reports have described the change as extending protection from 50 years to 70 years; but that description is incomplete. A more complete description would say that copyright protection for sound recordings has been extended from 50 years from the end of the calendar year in which recording (or “fixation”) occurred to 70 years from the end of the calendar year in which publication occurs. But even that remains incomplete – here is a chart which attempts to summarize the changes (which are found in Sections 81 and 82 of Bill C-59, and which replace Sections 23(1)(b) and 23(1.1) of the Copyright Act):

“Publication” is defined in Section 2.2 of the Copyright Act as meaning “making copies of a sound recording available to the public”; but the provision goes on to say that “publication” does not include “the performance in public, or the communication to the public by telecommunication” of a sound recording. That has some interesting implications for what I’ll call “amateur” or “non-commercial” sound recordings. As you can see from the foregoing table, while most “commercial” sound recordings (such as the recordings released by a major record label) will benefit from a term of protection of at least 70 years from the year of publication (i.e., the year in which the record was “released” for commercial sale to the public), a 70 year term will not apply to many “amateur” or “non-commercial” sound recordings unless copies of them are made available to the public. So, for example, the sound recording that you create when you play a cover song in your bedroom and then upload to YouTube – that will only be protected for a period of 50 years from the year of recording, because uploading a clip to YouTube does not constitute “publication” for purposes of the Copyright Act (in order to obtain the full 70 year term of protection, you’d have to make copies of the recording “available to the public”, for instance by offering CDs for sale (or files for digital download). It is therefore dangerous to assume that all sound recordings will benefit from a 70 year term of protection – some will have only a 50 year term (i.e., recordings for which “publication” never occurs, or only first occurs more than 50 years from the year of recording), while others will be protected for 70 years from the year of public release, which may be much later than the year of initial recording.

The new provisions also cap the duration of protection: not every sound recording which achieves “publication” will benefit from 70 years of protection from the year of its publication – there is an “outside date” of 100 years from the year of recording. Let’s imagine a sound recording which takes place in 2015 in the course of the creation of a new album by, say, current Canadian star Shawn Mendes; we’ll call the track “Party’s Over”. Upon recording (or “fixation”) of the track, “Party’s Over” will benefit from a period of copyright protection equal to 50 years (i.e., copyright would expire on December 31, 2065). If “Party’s Over” gets released by Shawn’s record company to the public in 2015, then the track will benefit from a period of copyright protection equal to 70 years (i.e., copyright would expire on December 31, 2085). But let’s imagine that the record company is unhappy with “Party’s Over” for some reason, and elects not to release it to the public – instead they elect to “keep it in the vault” so to speak. In the absence of publication, the track will still benefit from the “default” period of protection of 50 years, unless and until copies of it are made available to the public (i.e., “publication” occurs), in which case it will benefit from a period of copyright protection expiring on the earlier of 70 years from the year of publication or 100 years from the year of recording. So, if “Party’s Over” gets released to the public as part of a Shawn Mendes “Greatest Hits” package in, say, 2020, then it will be protected by copyright until 2090 (i.e., 70 years from publication) – but if the track doesn’t get released until, say, 2050 (as part of career retrospective, let’s say), then it will be protected until 2115 (i.e., 100 years from fixation), not 2120 (i.e., 70 years from publication). Trust me, this kind of thing is going to be giving lawyers conniptions for decades to come.

There are two other aspects to the amendments to the Act which bear attention:

• there is no “revival” of copyright in sound recordings whose protection had expired on December 31, 2014 – anything which was in the public domain on June 23, 2015 remains in the public domain
• the amendments also have the effect of extending the duration of copyright protection in certain performer’s performances which are fixed in a sound recording – while the “default” duration of protection for performances remains at 50 years, if a sound recording in which the performance is fixed is published before the copyright expires, the copyright in the performances continues until the earlier of (i) the end of 70 years after the end of the calendar year in which the publication occurs and (ii) the end of 100 years after the end of the calendar year in which the fixation of the performance (i.e., the recording) occurred

UPDATE: June 25, 2015 – I have revised the table to correct a possible misinterpretation: the left-most column is not intended to set out the year of the recording, but rather the year of the Copyright Act, with the goal of showing the change as between the Copyright Act before the 2015 budget, and the Copyright Act after the 2015 budget. For clarity, any sound recording which was still protected by copyright in 2015 will be subject to the new regime – the analysis is not different for sound recordings created before the budget implementation bill received Royal Assent on June 23, 2015.