On December 30 the length of the copyright term for every literary, dramatic, musical, and artistic work in Canada will extend from 50 to 70 years past the year of death of the author. As a result, for the next twenty years, no new works will enter the public domain.
A broad and deep public domain enriches Canadians’ social, political, intellectual, cultural, and artistic lives. Works entering the public domain can provide economic benefits, as most of these works that have not been commercially available for decades find new life upon entering the public domain.
The two biggest issues concerning the 20-year copyright term extension for literary works are the diminishment of the public domain resulting from a two-decade freeze on many works entering it, and the related problems regarding use of (or access to) orphan and out-of-commerce works. The latter creates additional burdens on libraries, archives, and museums (LAMs). Most published works by authors who died decades ago are no longer available from the rights holder (e.g., publisher), making them difficult to find and, thus, at risk for permanent loss. Furthermore, the copyright risk associated with digitizing, preserving, and sharing these works hampers research libraries from fulfilling their mission to their parent organizations and society at large.
The coming term extension is the latest in a series of legislative changes in copyright that have been made without any mitigating measures to prevent the potential loss of at-risk materials and offset the negative cultural impacts that are certain to arise from freezing the addition of new works to the public domain.
Three years ago, the parliamentary committee tasked with reviewing the Copyright Act recommended that a registration system for continuing the copyright term past the current 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.”
Last year the Government of Canada issued a consultation paper that put forth multiple options for mitigating the negative effects of term extension. In its response to that paper, the Canadian Association of Research Libraries and the Canadian Federation of Library Associations conditionally endorsed the Government-suggested options related to implementing a registration system and supporting the work of libraries through expanded exceptions to infringement. In addition, we recommended the additional counterbalancing amendments to the Copyright Act:
- Amend section 2 to change the definition of commercially available.
- Amend section 29 to make the list of purposes allowable under the fair dealing exception an illustrative list rather than an exhaustive one.
- Make it clear that no exception to copyright can be waived or overridden by contract and that Technological Protection Measures (TPMs) can be circumvented for non-Infringing purposes.
- Repeal subsection 14(1), or at minimum amend the subsection to include a clause that the creator may waive reversion rights at the time of copyright assignment to libraries, archives, and museums.
- Establish a scheme of limited liability for libraries, archives and museums for use of orphan, unpublished and out-of-commerce works.
Mitigation measures including the implementation of a registration system for the last 20 years of protection are critical to offset what will have a negative impact for the vast majority of Canadians. Public access to literary works is restricted when works are out of print, orphaned, undigitized, or otherwise unavailable and a longer copyright term exacerbates this reality.
The federal government must consider how this term extension significantly shifts the balance in copyright law that benefits a few multinational corporations, at the expense of the public good.
CARL is committed to continuing our work with the federal government to ensure that copyright legislation is fair to users and workable for libraries. We hope that this will include the co-development of educational resources related to educating library staff and the public about this legislative change.
CARL members include Canada’s twenty-nine largest university libraries. Enhancing research and higher education are at the heart of its mission. CARL develops the capacity to support this mission, promotes effective and sustainable scholarly communication, and public policy that enables broad access to scholarly information.
 See Lepan, D. “A Brief Submitted to the Standing Committee on Industry, Science and Technology: Copyright and the Fifty Year Rule”, 2018, p. 3, https://www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10008280/br-external/LePanDon-e.pdf and Flynn, J., R. Giblin & F. Petitjean, “What Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis across Australia, New Zealand, The United States and Canada”, UNSW LJ, 2019, 42(4), http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2019/11/3-Flynn-Giblin-and-Petitjean.pdf .
 Legislative changes in 2015 (An Act to implement certain provisions of the budget. SC 2015, C-59, s81-82, https://www.parl.ca/DocumentViewer/en/41-2/bill/C-59/royal-assent/page-161#11) and 2020 (An Act to implement the Agreement between Canada, the United States of America and the United Mexican States, SC 2020, s23-33, ) pertaining to copyright terms included extensions of 25 – 50 years for anonymous, pseudonymous, and cinematographic works and also for sound recordings and performer’s performances.
 See Recommendation 6, Report of the Standing Committee on Industry, Science and Technology. Statutory Review of the Copyright Act. June 2019. https://www.ourcommons.ca/DocumentViewer/en/42-1/INDU/report-16/
 See Consultation paper on how to implement an extended general term of copyright protection in Canada, Innovations, Science and Economic Development Canada. March 2021.
 See Joint Response to Consultation on Copyright Term Extension, Canadian Federation of Library Associations And Canadian Association of Research Libraries. March 29, 2021. https://www.carl-abrc.ca/wp-content/uploads/2021/03/CFLA-CARL_Joint_Response_to_Consultation_on_Copyright_Term_Extension.pdf