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“A bizarre 20-year hiatus:” Changes to copyright term in Canada

Published by Ioana Liuta

This blog post was written by Jennifer Zerkee, SFU Library Copyright Specialist.

On December 30, 2022, the general term of copyright protection in Canada changed from the life of the creator plus 50 years to the life of the creator plus 70 years. This change was agreed to in the Canada-United States-Mexico Agreement (CUSMA) trade treaty, and it matches the United States’ general rule for length of copyright. The minimum international term, based on the Berne Convention, is life plus 50 years; most countries have a term of either life plus 50 years or life plus 70 years.

Copyright protects written works, artworks, musical works and audiovisual works, as well as sound recordings, performances and communication signals. When copyright expires in a creator’s works they enter the public domain, meaning they can be freely used in any way without permission or payment. Every January 1 SFU and many others celebrate the works entering the public domain that year. These works can then be copied, shared or used by other creators as the basis or inspiration for new creations.

Benefits of the public domain

Works in the public domain contribute to the creation of new works: “Many industries require access to copyright material for the purposes of research and development, education, software or hardware interoperability. A lack of reasonable access can actually hurt economic growth” (IFLA, 2007). The public domain enables fan fiction, parody and other creative outputs. The public domain also supports education and research, for example making it easier for SFU researchers to create projects like the Aldine Collection, Canada’s Early Women Writers by Dr. Carole Gerson and the Lake District Collection by Dr. Margaret Linley. It makes it easier for libraries, archives and museums to share their collections - a number of large institutions including the Smithsonian, the Metropolitan Museum of Art and New York Public Library have made extensive collections of public domain works available to the public in recent years.

Longer copyright protections don’t necessarily provide better access to works, as is often argued. A 2019 study comparing public domain and in-copyright books found that books in the public domain are more often available to consumers than those protected by copyright, and that prices for public domain and in-copyright books were comparable. The public domain also actually creates economic benefits, contrary to what might be assumed: a 2015 UK study found that the cost of licensing copyright-protected images for English-language Wikipedia pages, rather than using public domain and openly licensed ones, would equal £138m.

Consequences of copyright term extension

However, because of the extension of the copyright term, very few works will enter the public domain in Canada until the expiry of copyrights “catches up” to the extension - leading to “a bizarre 20-year hiatus” of the public domain similar to that experienced in the United States after the term of copyright protection was extended there in 1998. While a small number of specific types of works with different terms, such as government works protected by Crown copyright and anonymous/pseudonymous works, will continue to enter the public domain, the vast majority of copyright-protected material will have these 20 years of protection added. Numerous lawyers and legal scholars have raised concerns about the impacts of the extension of copyright term, including the impact on freedom of expression and damage to the balance intended in copyright; others have explored options which could have mitigated these impacts but which have not been implemented.

In 2023, works that would have entered the public domain in Canada under the life-plus-50 rule include those by poet Ezra Pound, artist M.C. Escher, composer Gavriil Popov, actress and poet Meena Kumari, philologist Nora K. Chadwick, American civil servant J. Edgar Hoover, archaeologist Gisela Richter, chemist and Nobel Prize winner Edward Calvin Kendall, author Violette Leduc, revolutionary and poet He Xiangning and all other creators who died in 1972. Because of the extension these works now will not enter the public domain until 2043. January 2024 would have seen works by author and Nobel Prize winner Pearl S. Buck and author J.R.R. Tolkein, among many others, enter the public domain; copyright in these now won’t expire until 2044. And so on.

Anyone wanting to use these works, whose use doesn’t fall under fair dealing or another exception in the Copyright Act, will have to find and contact the copyright owner and request permission. And the longer past a creator’s death copyright lasts, the harder it can become to find the heir or assignee of the copyright. Works whose copyright owners are unidentifiable or unreachable are called “orphan works,” and they are already a problem for users of many kinds. Similar problems occur for “out of commerce” works, works which are no longer available for purchase or license but are still protected by copyright. These problems have significant impacts on libraries and archives, and they will only be exacerbated by a longer copyright term, as was acknowledged by Innovation, Science and Economic Development (ISED) Canada in its consultation paper on term extension. However, despite many stakeholders in the term extension consultation and other recent copyright consultations recommending measures to mitigate the effects of term extension, no additional amendments to the Copyright Act were implemented alongside the change to the term.

More information

For more information about copyright, and guidance for working with copyright protected works in your teaching, learning and research, visit copyright.sfu.ca. Contact the SFU Copyright Office at copy@sfu.ca with any questions.

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