The Copyright Act governs all matters related to an author’s rights to her or his creative works, including how long those legal rights subsist and how they devolve upon the author’s death. Superimposed over that complex legislative framework is a history of judicial interpretation flowing from parties litigating those rights, including the oft-repeated Supreme Court of Canada copyright mantra of balance … between promoting the public interest in the encouragement and dissemination of works and obtaining a just reward for the creator“.

Balance, of course, is a subjective concept. Back in 1710, when copyright law was first introduced in Great Britain, the author’s monopoly rights lasted only 14 years. Over the centuries, most countries have followed suit and established copyright laws with varying terms of copyright protection; some evolved to cover the remaining life of the author however most jurisdictions also extend the rights well beyond the grave, for terms of 50, 70 or even 100 years after the author’s death. In Canada, the term of copyright is currently life of the author plus 50 years, however it is expected that the term will be extended to 70 years once the Trans Pacific Partnership treaty is formally adopted and enacted as law in Canada.

One may ask how compensating the unborn heirs and descendants of the author, for several decades post-mortem, motivates one’s creative juices to produce original art or other works. Nevertheless, that is part of the equation in the “balance” between public and private interests.

For a work already in existence, it is hard to fathom how extending the term of protection would encourage the creation of that work. It is merely adding reward, not spurring new creativity.

Unlike patents and trade-marks, which have statutorily fixed terms of 20 and 15 years respectively, copyright has this medieval, variable and arbitrary life-based duration of protection.

Like other forms of property, copyright passes at death by will or by intestacy (if there is no will), both of which are governed by provincial testamentary and probate laws (which are beyond the scope of this article). The Copyright Act clearly stipulates that the rights which devolve at death are not merely the traditional rights to produce, reproduce, perform and publish the work but also the moral rights in the work (rights to the integrity of the work, to be associated therewith and to remain anonymous). Copyright is also divisible between successors, such that a testator’s will may stipulate different rights (or different works) bequeathed to different heirs.

In reality, an author’s rights are typically assigned during her or his lifetime to a corporate employer, publisher or distributor, such that there are virtually no valuable rights remaining at the time of death to pass to the heirs and successors. Accordingly, copyright ownership issues are usually governed by the terms of the contracts which the author entered into while alive.

One famous example of this scenario is the epic legal battle between the heirs of the co-creators of the legendary comic book hero Superman and Warner Bros./DC Comics, who had previously obtained assignments of copyright while the creators were alive. The heirs sued the companies and the litigation is still now under appeal, not on the basis of copyright law, but rather on various contractual issues. Given the estimated value of the Superman character to be in the billions (in revenues), it is likely to be an on-going dispute in the US courts. However it shows how works protected by copyright, whose statutory rights survive the death of the author, can lead to long and costly litigation. Interestingly, an author could never have even dreamed of the future (post-mortem) social and economic value of her or his comic character when striking upon the original idea. So much for “just reward for the creator” as a realistic motivator to create!

Think of it another way. Suppose an octogenarian musician composes the most popular song ever and dies shortly thereafter. The term of protection is relatively short for his work as compared to the term that a 10 year old composer would receive for the same song, yet they were both apparently motivated, according to “balancing” theory, to compose their respective songs by the lure of the ever-increasing copyright terms after their respective deaths. There may be other similar examples, but it conveniently unveils the “fiction” behind the traditional balancing argument. Moreover, most valuable works of copyright (e.g. software, film, music) are owned by corporations, who effectively have immortality under corporate legislation and who would probably prefer perpetual copyright terms from the date of creation, if they could have them, rather than depend on the archaic, arbitrary and discriminatory rule of “life plus X years”.

Some writers have argued that copyright terms should be fixed and not extend beyond the author’s grave, that the author’s heirs do not deserve copyright rewards (they are not the ones creating) and that greater economic rights should be granted to authors while they are alive, as part of the copyright bargain, however that policy outcome seems unlikely as content industries press governments for stricter copyright laws and longer terms of protection. The momentum of centuries of powerful copyright monopolies and collectives entrenches the economic status quo and enables industry to obtain longer and longer terms. The effect of such longer terms is to shrink what works enter the public domain every year, thereby impeding “the public interest in the encouragement and dissemination of works” in the copyright private/public balance.

Personally, when I compose or perform an original song, I am producing a work of copyright in the present and never think about the value the song may bring to my grand-children 50 or 70 years after I lose my mortal coil. It’s not a motivating factor or inducement. Creativity isn’t always about the economic rewards; sometimes it’s merely the human need or desire to express ideas for the enjoyment of others. Having said that, be careful what copyright assignments and other contracts you are asked to sign, obtain legal advice before you sign and keep in mind that an extra 20 years of protection may soon become law, for the benefit of your fortunate survivors.