Canada extending term of copyright protection from 50-to-70 years

While some copyright owners will welcome change, libraries, museums, schools may not: lawyer

Canada extending term of copyright protection from 50-to-70 years
Daniel Anthony, Smart & Biggar LLP

Canada has until the end of this year to extend its general term of copyright protection, Under the Canada-United States Mexico Agreement (CUSMA).

The federal government’s Budget Implementation Act, 2022 contained an amendment to the Copyright Act which extended the copyright term from 50-to-70 years after the author’s death. The budget legislation received Royal Assent on June 23. The extension is not yet in force, but under CUSMA, Canada has agreed to implement the extension within 2.5 years of CUSMA’s coming into force, which occurred July 1, 2020.

There is a policy debate about adding 20 years to the monopoly held by copyright owners, but Daniel Anthony, counsel at Smart & Biggar LLP, says he does not take either side.

“I usually stay out of that type of thing… My job is to understand the law and to provide high-quality legal business advice to clients in IP,” he says.

For the less-than-one percent of copyrighted works which remain valuable 50 years after the authors death, the movie studios, recording studios, publishing houses, and other people or entities that own them will have their monopoly for another 20 years, says Anthony. But for the majority of copyright owners, “the extension is irrelevant.”

But the extension will also affect libraries, museums, archives, and educational institutions, he says. As they are in the business of preserving and making accessible literature, music, and other creative works, the longer copyright protection extends, the longer they are unable to provide it to the public. Sometimes the authors are dead, and it is difficult to find out who to ask for permission.

Google Books is also on this side of the equation, he says. The company is in the process of scanning and making available all the world’s books. But for those under copyright, they can only provide short teasers or previews.

“That side of the debate is that copyright, they think, is already too long, and they don't want it to be extended,” says Anthony. “The other side of the debate would be the people who make money off the copyright. And they're saying that extending the copyright creates more economic development, more incentives to authors to create works.”

The current copyright protection term originated from the 1886 Berne Convention, which came into force in Canada in 1928. “The major countries of the world agreed. Life-plus-50-years seemed reasonable, as an incentive to create works and to incentivize people to dedicate themselves to creating art,” says Anthony.

In addition to the U.S. and Mexico, the extension to 70 years will bring Canada in line with the European Union, a major trading partner, write François Larose and Tamara Céline Winegust, in an article on Bereskin & Parr LLP’s website.

The agreement under CUSMA that the extension will come into force not more than 2.5 years after the trade deal makes the end of 2022 the latest permissible implementation date. Winegust and Larose note that whether the government chooses Dec. 31, 2022, or Jan. 1, 2023, as that date could have “serious implications.” If the latter is chosen, works that were set to enter the public domain by the end of 2022 will be denied the 20-year extension. If the government chooses Dec. 31, those copyright owners will enjoy another 20 years of monopoly.

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