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Canada To Increase Copyright Term To “Life Plus Seventy Years” – Copyright


Summary

On June 23, 2022, Royal Assent was granted to Bill
C-191, an omnibus bill that implements significant
amendments to the Canadian Copyright Act (the
Act“). In particular, the legislative
amendments, once proclaimed into law, will increase the current
term of copyright protection in Canada from “life plus
fifty” – life of the author, to the end of the calendar
year of the death of the author, plus fifty years – to
“life plus seventy” – life of the author, to the
end of the calendar year of the death of the author, plus seventy
years. The new expansion of copyright protection in Canada will
apply to all literary, dramatic, musical and artistic works.

Background

Bill C-19 is designed to implement Canada’s commitment in
the Canada-United States-Mexico Agreement
(“CUSMA“)2 to extend its
basic term of copyright protection for works to life plus seventy,
which is the same term of copyright protection as in the United
States and the European Union. CUSMA came into force on July 1,
2020 and it requires Canada to implement this extension to life
plus seventy by “no later than the expiration” of 2.5
years from that date.3 Based on this, the date of
implementation could be interpreted as either December 31, 2022 or
January 1, 2023.

CUSMA also requires Canada to extend terms of copyright
protection that are calculated on a basis other than the life of
the author – specifically, terms calculated from the date of
publication – to “not less than 75 years from the end of
the calendar year of the first authorized
publication”.4 That change to the Act was
implemented by Bill C-4, which, among other changes, extended the
term of copyright protection for sound recordings published before
the copyright expires to the earlier of: (i) 75 years from the end
of the calendar year in which the recording was first published,
and (ii) 100 years after the end of the calendar year in which the
first fixation of the recording occurred.5 Bill C-4
received Royal Assent in March of 2020.

Timeline

The proposed extension of the copyright term in Canada is not
yet in force. Rather, the amendments will come into force on a date
to be fixed by order of the Governor in Council, which, as per
CUSMA, must be no later than 2.5 years from July 1, 2020. Though
the date is not yet fixed, the Canadian government has indicated
that implementation of the copyright term extension will be
sometime at the end of 2022.6

Implications

Whether the copyright term extension is implemented in December
of 2022 or January of 2023 will have significant implications. The
amendments do not provide for any “revival” of
copyrighted works which previously entered the public domain.
Therefore, works which are protected by copyright on or after the
implementation date will be protected for an additional 20 years.
However, works in which the copyright term has expired prior to the
implementation date will remain in the public domain. Accordingly,
depending on the date of implementation (i.e. December 31, 2022 or
January 1, 2023), a work whose copyright term expires at the end of
the 2022 calendar year may or may not be protected for a further 20
years.

Looking Forward

Once the copyright extension comes into force, there will likely
be a renewed focus on the proper interpretation by Canadian courts
of the “fair dealing” defense to copyright infringement
in the Act in light of the extension. In the leading Supreme Court
of Canada case of CCH Canadian Ltd. v. Law Society of Upper
Canada
(2004 SCC 13)7, the court discussed the need
to strike a fair balance between the rights of copyright owners and
those of copyright users and described fair dealing as an important
“user’s right”. Now that the basic term of copyright
protection will be extended in Canada for a further 20 years, query
whether the Canadian courts will feel even more pressure to ensure
that “user’s rights”, such as fair dealing, are
liberally interpreted, so that this balance is preserved.

For further information, please contact any member of our Entertainment Law Group.

The author would like to thank Noa Rapaport, Articling
Student-At-Law, for her assistance in writing this Update.

Footnotes

1. Bill C-19, Budget Implementation Act, 1st
Sess, 44th Parl, 2022 (assented to 23 June 2022), SC 2022, c 10 (https://www.parl.ca/DocumentViewer/en/44-1/bill/C-19/royal-assent).

2. Canada-United States-Mexico Agreement
(CUSMA)
, 1 July 2020 (Government Bill (House of Commons) C-19 (44-1) -
Royal Assent – Budget Implementation Act, 2022, No. 1 – Parliament
of Canada
).

3. Ibid at article 20.89.

4. Ibid at article 20.62.

5. Bill C-4, Canada-United States-Mexico Agreement
Implementation Act
, 1st Sess, 43rd Parl, 2019-2020 (assented
to 13 March 2020), SC 2020 (https://www.parl.ca/DocumentViewer/en/43-1/bill/C-4/royal-assent).

6. Government of Canada, Ministry of Industry,
Consultation paper on how to implement an extended general term
of copyright protection in Canada
, (Ottawa: Minister of
Industry, 2021) (https://www.ic.gc.ca/eic/site/693.nsf/eng/00188.html#fn2).

7. CCH Canadian Ltd. v. Law Society of Upper
Canada
, 2004 SCC 13, [2004] 1 SCR 339.

The content of this article does not constitute legal advice
and should not be relied on in that way. Specific advice should be
sought about your specific circumstances.



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