The headline news has been fairly simple to understand: the Government of Canada will be adding twenty years to the term of copyright protection in Canada. But what exactly is changing in the Canadian copyright landscape? After all, the Copyright Act doesn’t just have one term for copyright protection. There are multiple different terms of protection, depending on the nature of the subject matter that is protected by copyright, and on esoteric criteria such as the date of publication and whether the work is anonymous or posthumous (or both!). So while the duration of copyright protection for many things will be increased by twenty years, not all of them will be affected. This blog post attempts to summarize the coming changes to the duration of copyright protection in Canada in a comprehensive but digestible fashion. (It attempts! It may not succeed, but it’s good to have goals!).
So what’s happening? A relatively accurate summary of the major change is that the Copyright Act is being amended to extend the general term of copyright protection for “works” by twenty years, from “life of the author plus fifty years” to “life of the author plus seventy years.” That general statement can obscure a number of meaningful caveats and implications – which this post will hopefully shed light on.
When is it happening? We don’t yet know exactly. The amendments to the Copyright Act were contained in the Budget Implementation Act, 2022, No.1 – otherwise known as Bill C-19, a bill which, at the time of writing this blog post, has received royal assent.
Even though Bill C-19 has received royal assent, the provisions that amend the Copyright Act will not come into effect until a day to be fixed by order of the Governor in Council (i.e., Cabinet). What we do know is that the Government, when it agreed to the Canada-United States-Mexico Agreement (CUSMA), which contained the commitment to extend the copyright term, agreed to implement that change within 2.5 years after CUSMA came into force – meaning that the amendments have to come into effect before December 31, 2022.
You said some terms of protection were not changing – which ones?
The Copyright Act has different terms of protection for different types of “things that are protected by copyright.” This is a list of all the “things” (or “subject matter”) that are protected by copyright for which the Copyright Act prescribes a term of protection:
|No.||Category||Term of Protection Section||Amended in 2022?|
|1||The general category of “works” (i.e., literary works, dramatic works, musical works, artistic works)||Section 6||Yes|
|2||The specific category of works that are “anonymous or pseudonymous” (i.e., for which the author is unknown or uses an untraceable pseudonym)||Section 6.1||Yes|
|3||The specific category of “works of joint authorship” where some of the authors are not identifiable||Section 6.2||Yes|
|4||The specific category of posthumously published works||Section 7||Yes|
|5||The specific category of “works of joint authorship” where all authors are identifiable||Section 9||Yes|
|6||The specific category of cinematographic works that lack “dramatic character”||Section 11.1||No|
|7||Works of Crown copyright||Section 12||No|
|8||Performer’s performances||Section 23(1)||No|
|9||Sound recordings||Section 23(1.1)||No|
|10||Communication signals||Section 23(1.2)||No|
Of these ten different terms of protection, only the first five are affected by the CUSMA-prompted amendments. The remaining terms of protection – for cinematographic works lacking “dramatic character,” works of Crown copyright, communication signals, performer’s performances, and sound recordings – the term of protection remains as is.
What about moral rights? Good question! The term of moral rights protection is set out in Section 14.2 of the Copyright Act – and Section 14.2 says that moral rights subsist “for the same term as the copyright in the work.” So, the term of protection for moral rights in works that are contained in categories 1-5 above is being extended by an additional twenty years. The term of protection for moral rights in respect of works and other subject matter contained in categories 6-10 above (to the extent moral rights exist with respect to them at all) are not affected by the 2022 amendments.
Do these amendments affect things that are already in the public domain? No. Bill C-19 explicitly states that its amendments do not “revive” copyright “in any work in which the copyright had expired before the day on which sections 276 to 279 come into force” – and since copyright terms in Canada “expire” on December 31 in each given year, anything that was in the public domain in Canada on January 1, 2022, will remain in the public domain.
Anything else to keep in mind? An important subset of beneficiaries of the term extension will be the heirs of authors who are entitled to reversionary rights under Section 14 of the Copyright Act (for a refresher on reversionary rights, see this Signal post on the topic). For many works, authors’ heirs enjoy a reversion of copyright years after the death of the author. Because the Bill C-19 amendments do not alter the reversionary right provisions, the author’s heirs will now have an additional twenty years of reversionary right (i.e., once the rights revert, the copyright in question will last not just for an additional twenty five years but an additional forty five years).