At the close of last year, Canada implemented a 20-year extension to its term of copyright protection for author-generated works. Copyright will now apply for the lifespan of the author plus an additional 70 years – a change that stands to benefit Canadian copyright holders and consumers. Under the extended term, if an author holding copyright over their works died in 2022, their copyright will be protected until December 31, 2092, with their estate holding the rights to control use of the works and enjoy any economic benefits. For a work that would have entered the public domain on January 1, 2023, the term of protection is now extended until January 1, 2043.
The immediate trigger for the extension was the commitment that Canada made to the United States and Mexico in the renegotiation of the North American Free Trade Agreement. The new NAFTA, known in Canada as the Canada-United States-Mexico Agreement (CUSMA), required that Canada extend its term of protection within two and a half years of the agreement coming into effect. Since the CUSMA went into effect on July 1, 2020, Canada had until the end of 2022 to make the necessary legal changes.
In recent years, the term of copyright protection has been lengthened in many countries. Not everyone is a fan of term extension: some argue that extending the term does nothing to provide an additional economic incentive to authors to produce new works, especially for those with works already under copyright. Others, such as libraries, may be concerned that it will be more difficult to provide access to long-out-of-print works still under copyright where the rights-holder is not easy to locate.
From its inception, copyright was a limited property right, expiring after a fixed number of years. Originally it was for 14 years, later extended in many countries to the life of the author, and then progressively to include a period after the author’s death. The thinking then, as now, was that authors should be able to earn a living from the production of their works (an economic incentive) while also being able to exercise control over use of the work (moral rights). By including a period after the author’s death, these rights were extended to their heirs and successors for approximately two generations. With longer life spans in the 20th century, it was argued that the expected two lifespans after death of the author should be extended from 50 to 70 years.
Within the European Union some member states had a copyright term of “life plus 50,” the Berne Convention minimum for many years, whereas others had terms of as much as “life plus 80.” To harmonize the terms among EU member states to minimize legal complications, the European Commission fixed a term of “life plus 70” in 1993, with the extra 20 years of protection extended to foreign rights-holders only if their countries offered a reciprocal term to EU rights-holders. As a result, the United States extended its term of protection to “life plus 70” in 1998. Since then, several countries with which the EU and U.S. have close economic relations have aligned their terms of copyright protection. Today, almost 80 countries worldwide apply “life plus 70.” Canada has now joined this club.
Canadian rights-holders will now be able to compete internationally on a level playing field by enjoying the benefits of the longer term of protection in markets outside of Canada. It also provides additional opportunities for Canadian rights-holders to monetize copyright-protected content, and thus increase investment in the further dissemination of works through acquisition, re-release, new editions, and other forms of commercialization of copyright-protected works – an economic incentive for additional distribution of existing works. As a result, not only will rights-holders and publishers benefit from the extension of protection, so will consumers of copyrighted content.
The concern of those in the libraries, archives, and museums sector about the impact of lengthened copyright on out-of-commerce and orphan works should hopefully be addressed if and when other long-overdue revisions to the Copyright Act are introduced before the end of the mandate of the current government.
Hugh Stephens is the author of the blog Insights on International Copyright Issues. His forthcoming book, In Defence of Copyright, will be published by Cormorant Books.