1. Are all works now protected for the life of the author plus an additional 70 years?
Based on the Order in Council, it appears that all works not already in the public domain are now protected by copyright for 70 years past the year of death of the author.
The changes refer to works that are authored. This is also called the general term of copyright and it applies to literary, dramatic, artistic, and musical works. The Order in Council refers to the relevant section of the Budget Implementation Act: Division 16, which replaces some, but not all sections, of the Copyright Act that address the term of copyright.
Note that the term of copyright was extended for anonymous, pseudonymous, cinematographic works and sound recordings in legislative changes enacted in 2015 and 2020. The chart on this page lists which works are subject to the 2022 change in term length.
In addition, the term of copyright for some works, including government publications and documents (works protected by Crown copyright) has not changed.
2. Are works that were in the public domain now protected by copyright?
What happens for works that entered the public domain at 50 years past the year of death of the author, but are not yet 70 years past the year of death of the author? Do they remain in the public domain, or do they revert back?
No. Works that entered the public domain on January 1, 2022 remain in the public domain. No works that were in the public domain will again be protected by copyright as a result of the legislative changes in the Budget Implementation Act (see section 280, the transitional provision in Division 16).
All works entering the public domain do so on January 1 of the given year. January 1, 2022 was the last time any work that is subject to the general term of copyright will enter the public domain in Canada until January 1, 2043. For example, if someone died in 1971, then their personal works remained protected by copyright until January 1, 2022 (1971 + 50 = 2021 or December 31, 2021) so they entered the public domain and remain there.
3. How do I figure out when a work enters the public domain in Canada?
It can be complicated and is based on multiple factors. Note that copyright terms end on December 31 and that works enter the public domain on January 1 of the given year.
In general, and for works with a personal author, first determine when the author died.
If they died during or before 1971, add 50 years to the year of their death to determine the final year that their works would have been protected by copyright. Their works would have entered the public domain on January 1 of the following year.
Works created by authors who died in 1971 or earlier entered the public domain in Canada on January 1, 2022 or before, as the 50 year term of copyright applied to their works.
If they died in 1972 or later, the new term length applies. Add 70 years to the year of their death. For example, Lester Pearson died on December 27, 1972. His papers and publications will be protected by copyright up to December 31, 2042. The calculation is as follows: 1972 + 70 = December 31, 2042. Thus, his works will no longer be protected by copyright, and will enter the public domain on January 1, 2043.
See also: Canadian Copyright Term and Public Domain Flowchart
4. Are any works entering the public domain on January 1, 2023?
No additional works subject to the general term of copyright (“authored” works) will enter the public domain in Canada until January 1, 2043.
Other kinds of works, however, may enter the public domain. For example, works protected by Crown copyright that were published in 1972, and certain unpublished cinematographic works created in 1952.
5. How should we interpret the copyright term extension provisions around section 7, related to the term of copyright in certain posthumous works?
There seems to be provisions for when a work is published, but what about unpublished works from an author who died prior to December 31, 1998?
What happens to works of an author who died after December 31, 1998? Does the 70 plus years apply?
See Section 7
The revised section 7 provides some certainty by clearly identifying the dates upon which date calculations are to be made for certain posthumous works.
Unpublished works subject to the general copyright term will enter the public domain 70 years after the death of the author.
However, in the case of literary, dramatic and musical works, and engravings, that are unpublished/unperformed at the date of the author’s death, the specific provisions section 7 apply:
- Section 7(1) states that for a literary, dramatic or musical work, or an engraving, that is (subsection 1) unpublished or unperformed at the date of the author’s/performer’s death (or last of the joint authors), but (subsection 2) was posthumously published/performed before Dec 31,1998, the copyright term is the longer of
(a) the period until publication/performance, plus the rest of that year plus 50 years; and
(b) life plus 70 years (i.e. the general copyright term).
- Section 7(3) states that if the author passed away between Dec 31, 1948 and Dec 30, 1998, and the work was not published or performed before Dec 31,1998, then the term is the longer of:
- (a) until Dec 31, 2048; or
- (b) life of the author/performer plus 70 years (i.e. the general copyright term).
Note, when applying Section 7(3), the fact that the author’s work was published after Dec 31, 1998 is not relevant: if it was unpublished before Dec 31, 1998, then Section 7(3) applies.
6. We have spent hours assessing public domain status this year (2022) for works that we are planning to digitize next year (2023). Do we have to repeat all that work?
You would need to reassess the copyright status for works whose authors died in 1972.
Under the previous term length (50 years past the year of death of the author) the works of authors who died in 1972 would have entered the public domain on January 1, 2023. Those works will now enter the public domain on January 1, 2043.
7. The extension doesn't seem to apply to corporate authorship. Can you clarify and give some examples of what this means?
If a work of corporate authorship identifies the human beings who authored it, the copyright term applies to the life of that author.
However, if a work of corporate authorship does not identify the author, and there is no reasonable or practical way to identify the author, it seems most reasonable to consider such works to be anonymous and treat them accordingly when determining copyright term, i.e., based on the date of creation or publication. For details, see section 6.1 of the Copyright Act.
It is important to note that anonymous works do have one or more authors, and the copyright owner may assert copyright, so a risk-balanced approach is recommended.
8. What if a work has no author, but does provide a publisher? Does that fall under 'corporate' authorship?
It seems most reasonable to consider such works to be anonymous and treat them accordingly when determining copyright term, i.e., based on date of creation or publication. For details, see section 6.1 of the Copyright Act.
It is important to note that anonymous works do have one or more authors, and the copyright owner may assert copyright, so a risk-balanced approach is recommended.
9. What happens if someone has used a work that was in the public domain prior to 2023, but now falls under copyright again?
Nothing “falls under copyright again” as a result of the 2022 revision. If a work was in the public domain as of January 1, 2022 then it remains in the public domain.
10. Is it correct that anything already in the public domain in Canada according to the old rules on December 31, 2022 will remain in the public domain, but anything that might have entered the public domain in Canada according to the old rules on January 1, 2023 would be deferred for 20 years?
That is correct.
Anything that might have entered the public domain in Canada according to the old rules on January 1, 2023, will enter the public domain in 20 years.
11. It seems that this is going to make it even more difficult to track down the copyright holder in some cases and possibly make users less likely to comply, especially as time passes. Should we assume that the importance of compliance diminishes over time and depends upon the likely financial implications for the creator's descendants?
The importance of legal compliance does not diminish over time.
However, the likelihood of a dealing being fair might change if, for example, the work ceases to be commercially available.
As time progresses it will also be more difficult to track down and, in some cases, identify rights holders.
The financial effect of a dealing on a work (and thus the effects on the rights holder) is usually considered as part of a broader fair dealing assessment. More information about fair dealing can be found here.
12. Does it now mean that an opt-in registration system to extend copyright to 70 years for those that want it is off the table indefinitely?
Such a system has not been established at this time.
Three years ago, the parliamentary committee tasked with reviewing the Copyright Act recommended that a registration system for continuing the copyright term past the life plus 50 term be implemented, in order to “mitigate some of the disadvantages of term extension, promote copyright registration, and thus increase the overall transparency of the copyright system.” See recommendation 6. Last year the Government of Canada issued a consultation paper that put forth multiple options for mitigating the negative effects of term extension. A registration system was not one of the four proposed options, however some responses (including the CARL-CFLA joint response) recommended it should be considered.
13. What benefit does the copyright extension provide to individual authors?
None – unless the incentive for an author to create new works includes ensuring copyright protection and possible revenues for their heirs for an additional generation (20 extra years).
14. What about the public domain? Won't this stifle creativity?
Preventing the public domain from growing for twenty years could stifle both creators and users in how they deal with protected works. A broad and deep public domain enriches Canadians’ social, political, intellectual, cultural, and artistic lives.
15. Why is this matter a part of the Budget Implementation Act?
The timeline required for implementation under the terms of CUSMA was likely the main factor.
Information about omnibus bills can be found on the Library of Parliament website.
16. Do authors still have the option to release their own works into the public domain earlier through CC0 or similar mechanisms? How do we promote this as an option?
Yes they do. The term extension does not alter any rights provided to creators under the Copyright Act. If the author is the rights holder then they can waive all or some of their rights in their works. One tool for doing so is the Creative Commons “no rights reserved” or public domain waiver, CC0.
Many libraries have designated copyright specialists or scholarly communications staff who can provide authors with information on Creative Commons licensing options.
17. Does this extension apply to government works (e.g. Crown Copyright)?
No, it does not. Published government works protected by Crown copyright continue to have a term that expires 50 years after the year of publication as stated in section 12 of the Copyright Act.
There continues to be confusion about whether unpublished government works remain protected by copyright in perpetuity (forever). Canada is likely the only democratic country in the world to have a perpetual copyright term for its unpublished government works
18. What if a work is already in the public domain in another country, like the US? Could it still be protected by copyright in Canada?
In general, Canadian copyright law applies to uses of copyright-protected works in Canada. This includes provisions related to the length of a copyright term of works created in another country.
Under the terms of the Berne Convention, a treaty for which both the US and Canada are signatories, a country is not required to recognize the copyright in works for longer than it is recognized in the country of publication, even if that copyright would still be recognized in the country in which the work is being used. This is often referred to as the “rule of the shorter term.” Unfortunately, it is unclear if this section of the Berne Convention was generally implemented in Canada and whether it would remain in effect after the changes to the Act implemented on Dec 30, 2022.
As an aside, and especially for those working in the US, note that works by American creators that were published in the US prior to 1928 should be in the public domain in that country (as of January 1, 2023). This is due, in part, to a history of changes to legal formalities that impacted the term of copyright protection in the US.
19. The caveat that the term includes “the remainder of the calendar year in which that author dies”—was this always part of the language?
Would this also mean then that we would always begin counting from the following calendar year (e.g. if someone died in January 1943, would we count from 1944)?
Yes, the calculation of the 50 years past the year of death started with the year after the year of death. Regardless of when someone died in 1943 the fifty year calculation began on January 1, 1944. Thus, their works would have entered the public domain on January 1, 1994.
The original Canadian Copyright Act of 1921 used the language, “the life of the author and a period of fifty years after his death.” The pronoun “his” was changed to “the author” sometime between the Revised Statutes consolidations in 1970 and 1985. This was changed again in 1993, as part of the The Act to Implement NAFTA (1993, c. 44, s. 58), to the following wording in section 6 of the Copyright Act, “The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.”
This language was revised again in 2022, to read, “Except as otherwise expressly provided by this Act, the term for which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year.”
20. Does the change impact the term of protection for moral rights?
Section 14.2 of the Copyright Act states that moral rights subsist “for the same term as the copyright in the work.” To determine the length of the term of protection for moral rights in Canada, determine the length of protection for the work in question, as described above.
See also: Canadian Copyright Term and Public Domain Flowchart
Amendments to the Copyright Act: Copyright term extension
https://librarianship.ca/news/amendments-copyright-act/
November 23, 2022
The federal government shared an update with stakeholders today on amendments made to the Copyright Act that will come into force on December 30, 2022:
On the recommendation of the Honourable François-Philippe Champagne, Minister of Innovation, Science and Industry, and the Honourable Pablo Rodriguez, Minister of Canadian Heritage, an Order in Council was signed to bring the amendments to the Copyright Act that were included in Division 16 of Budget Implementation Act, 2022, No. 1 into force. We are letting you know directly as these amendments may be of interest to you or your organization.
These amendments to the Copyright Act will come into force on December 30, 2022. As a result, the general term of copyright protection in Canada will change from 50 to 70 years after the life of the author. This change will not affect works that are already in the public domain. For more information, please see the amendments to the Copyright Act from June 2022.
Sincerely,
Michel Sabbagh
Director General,
Broadcasting, Copyright and Creative Marketplace Branch
Canadian Heritage
Samir Chhabra
Director General,
Marketplace Framework Policy Branch
Innovation, Science and Economic Development Canada
Order in council
PC Number: 2022-1219
Date: 2022-11-17
________________________________________
Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage, under section 281 of the Budget Implementation Act, 2022, No. 1, chapter 10 of the Statutes of Canada, 2022, fixes December 30, 2022 as the day on which Division 16 of Part 5 of that Act comes into force.
2022 changes, C-19
https://www.parl.ca/DocumentViewer/en/44-1/bill/C-19/royal-assent
DIVISION 16
Copyright Act
R.S., c. C-42
Amendments to the Act
276 Section 6 of the Copyright Act is replaced by the following:
Term of copyright
6 Except as otherwise expressly provided by this Act, the term for which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year.
277 Subsection 6.2(2) of the Act is replaced by the following:
Identity of author commonly known
(2) If, during any term referred to in subsection (1), the identity of one or more of the authors becomes commonly known, copyright subsists for the life of whichever of those authors dies last, the remainder of the calendar year in which that author dies and a period of 70 years following the end of that calendar year.
278 Section 7 of the Act is replaced by the following:
Term of copyright in certain posthumous works
7 (1) Subject to subsection (2), in the case of a literary, dramatic or musical work, or an engraving, in which copyright subsists at the date of the death of the author — or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last — but which has not been published or, in the case of a lecture or a dramatic or musical work, been performed in public or communicated to the public by telecommunication, before that date, copyright subsists for the longer of
- (a) the period until publication, or performance in public or communication to the public by telecommunication, whichever may first happen, as well as the remainder of the calendar year of the publication or of the performance in public or communication to the public by telecommunication, as the case may be, and for a period of 50 years following the end of that calendar year, and
- (b) the life of the author — or, in the case of a work of joint authorship, the life of the author who dies last — as well as the remainder of the calendar year in which that author dies and a period of 70 years following the end of the calendar year in which that author dies.
Application of subsection (1)
(2) Subsection (1) applies only if the work in question was published or performed in public or communicated to the public by telecommunication, as the case may be, before December 31, 1998.
Transitional provision
(3) If a work was not published or performed in public or communicated to the public by telecommunication before December 31, 1998, if subsection (1) would apply to that work had it been published or performed in public or communicated to the public by telecommunication before that day, and if the relevant death referred to in subsection (1) occurred during the period of 50 years immediately before that day, copyright subsists in the work, whether or not the work is published or performed in public or communicated to the public by telecommunication on or after that day,
- (a) until December 31, 2048; or
- (b) for the life of the author — or, in the case of a work of joint authorship, the life of the author who dies last — as well as the remainder of the calendar year in which that author dies and a period of 70 years following the end of that calendar year, if that period ends after December 31, 2048.
279 Section 9 of the Act is replaced by the following:
Cases of joint authorship
9 In the case of a work of joint authorship, except as provided in section 6.2 or subsection 7(1) or (3), copyright subsists during the life of the author who dies last, for the remainder of the calendar year in which that author dies, and for a period of 70 years following the end of that calendar year, and references in this Act to the period after the expiration of any specified number of years from the end of the calendar year of the death of the author shall be construed as references to the period after the expiration of the like number of years from the end of the calendar year of the death of the author who dies last.
Transitional Provision
No revival of copyright
280 Section 6, subsections 6.2(2) and 7(1) and (3) and section 9 of the Copyright Act, as enacted by sections 276 to 279, do not have the effect of reviving the copyright in any work in which the copyright had expired before the day on which sections 276 to 279 come into force.
Coming into Force
Order in council
281 This Division comes into force on a day to be fixed by order of the Governor in Council.
