Canada’s copyright protection has, for some time, been out of step with most of its major trading partners. Canada’s basic copyright term of life of the author plus 50 years differs from jurisdictions such as the United States, the European Union, the United Kingdom and Mexico, where the term is generally life of the author plus 70 years.
This discrepancy has been an issue in trade negotiations over the years. Canada’s current term of life plus 50 complies with the standard set by the Berne Convention. An extension of Canada’s copyright term to life plus 70 was provided for in the Trans-Pacific Partnership trade agreement. While Canada signed the Trans-Pacific Partnership agreement, the treaty was never ratified and therefore did not go into effect. The United States-Mexico-Canada Agreement (“CUSMA”) likewise provided for the extension of Canada’s copyright term to life plus 70 for certain categories of works. CUSMA, which replaces the North American Free Trade Agreement, has been signed and ratified.
Accordingly, on June 23, 2022, the Parliament of Canada passed legislation to extend the basic term of copyright protection to life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year.
This 20-year extension is not yet in force and will be implemented on a forthcoming date set by an order from the Governor in Council. The extension will not apply retroactively. Works that have already entered the public domain prior to the coming into force date will not be subject to any further protection.
The extension of Canada’s copyright term has been met with mixed reactions.
Supporters applaud the move to bring Canada’s protections in line with its major trading partners. Some contend that the extension will provide additional time to monetize works which should encourage investment in Canadian works. The Writers’ Union of Canada stated as follows in a press release:
… after over a decade of market failure resulting in hundreds of millions of dollars lost to educational copying, it is gratifying to see Budget 2022 promise immediate repair to the Copyright Act. Minister Freeland’s budget commits to extending the term of copyright protection in Canada by twenty years (thereby bringing us into alignment with our major trading partners) …
Opponents of the extension include groups advocating for user rights and a strong public domain. Some argue that the further 20-year restriction on access to works will ultimately limit creativity as the end of copyright protection in a given work allows for the production of new works. In a Position Statement, the Canadian Federation of Library Associations provided as follows:
In short, term extensions provide economic rights holders with additional time to exercise their limited monopoly to commercially exploit that small number of works that has maintained its commercial value throughout the already generous copyright terms specified in the Berne Convention. This additional time is granted at the expense of the public interest in gaining access to all those other works that have no commercial value and yet to which the term extension will also apply. Furthermore, one of the key features recognized in copyright policy development is that new works build upon older works. Preventing the use and enjoyment of works thus will also adversely impact the development of new creative works by a wide range of creators, including historians and other scholars, writers, and researchers.
High-profile celebrities such as singer/songwriter Bryan Adams have even weighed in. Adams made a submission to the Standing Committee on Canadian Heritage assisted by Mario Bouchard, former general counsel to the Copyright Board. With respect to the proposed copyright term extension the submission stated:
Canada is now more or less duty-bound to increase copyright protection by 20 years, to “life + 70”. Extending the duration of copyright essentially enriches large firms of intermediaries. It does not to put money in the pockets of most creators.
Adams argues that Canadian copyright law should be amended such that rights revert back to a creator 25 years after the assignment of such rights (instead of 25 years after the creator’s death as provided for in subsection 14(1) of the Copyright Act).
In any event, the extension of Canada’s basic copyright term is expected to take effect before the end of 2022. In that case, works that would have fallen into the public domain at the end of this year, will be subject to a further 20 years of protection.
