It is now official. As of December 30, 2022 the term of protection for copyrighted works will be extended by 20 years to match earlier extensions that occurred in the United States and Europe.
Starting on that date, copyright protection will expire 70 years from the end of the civil year during which the author of a work passed away. In the case of works of co-authorship, the starting point of the calculation is the end of the civil year during which the last surviving coauthor passed away. Distinct rules providing for longer terms of protection for anonymous and pseudonymous works are already in force.
This amendment does not have the effect of “reviving” copyright for works already in the public domain at the time of coming into force. In other words, the author or last surviving coauthor of a work must have passed away at the latest on December 31, 1972 to gain 20 extra years of protection. All works that remain protected by copyright will benefit from this amendment.
While this is a positive development for copyright owners, this development only amplifies a key pitfall of copyright law in Canada. Canada’s copyright legislation continues to provide for a “reversion” of rights 25 years from the death of an author. This only applies if the author was the first owner of copyright in the work. This will occur, however, in almost all circumstances, except if a work is created by an employee as part of their duties. This is because Canada does not have the same broad set of “work for hire” rules that exist in the United States of America.
No steps need to be taken for rights to revert to the heirs or legatees. This occurs automatically after 25 years. They can then exercise their rights as copyright owners against all users of a substantial part of the work, subject to the exceptions provided by law. The extension of the term of protection effectively means that the term of protection subject to “reversion” grows from roughly 25 years to 45 years.
It is impossible to contract out of this reversion for Canadian copyrights. The only options are either to insure that important works are systematically developed in the course of employment or, failing this, being named as a legatee in the will of the relevant authors – which may be no small feat. If, perchance, a Canadian Court recognizes that US “work for hire” rules have legal effect under Canadian copyright laws, that may be another avenue. There is however some controversy about whether this is possible.
In the end, a longer term of protection may translate into a string of headaches for some owners of copyrighted works.
Jean-Philippe practises technology and intellectual property law. He combines in-depth knowledge and strategic thinking to help companies in the software, entertainment, consumer products, natural resources, social networks, online services, e-commerce and manufacturing industries. He expertly acts for numerous companies as a trademark agent and advises them on their global trademark strategy.