Canada: A Break For Canadian Creators? Maybe.

Last Updated: November 16 2018
Article by Aaron M. Milrad

Canadian copyright revision required under US/Mexico/Canada Agreement (USMCA)

Under the recently-signed USMCA, Canada agreed to harmonize its copyright law with US law, amongst other matters, and extend creator rights in Canada for an additional 20 years.

Term

The term of copyright will henceforth be for the life of the author plus 70 years thereafter. Presently in Canada, most copyrights find the posthumous term is 50 years and has been such for many decades. 1

In 1998, the US lengthened its Copyright Act, which, at the time, was also for life of the creator plus 50 years, to an extended term of 70 years after death. This was done under the Sonny Bono Copyright Term Extension Act, signed by Bill Clinton on October 27, 1998. This was named in memory of the late congressman Sonny Bono, who was part of the performing duo "Sonny and Cher", and had died in a skiing accident.

This extended term of 70 years after death was earlier instituted in the EU countries and Britain, and applied to European and Britain artists and to original works of non-European-located creators, as long as they were protected by copyright in their respective countries of origin.

Sadly, with Canada's 50-year term after death for present Canadian copyright and Moral Right protection, Canadian creators do not benefit from the extended 70-year term outside Canada.2 While most of the copyright world enjoys the extra 20 years, Canada does not.

It is interesting to note that the 50-year term was not extended in any prior Canadian copyright revision. Now that anomaly will be corrected under the new USMCA when completed, for the benefit of Canadian creators.

Implementation

How this extension will be implemented will be of interest. For instance, how will it apply to the estates of creators who have died less than 50 years ago? Will their estate rights be enhanced by the additional 20 years?

What will happen with respect to artist's estate that are outside the 50-year term but within the 70-year term? Will the extra time be added to the estate? Or, instead, will these rights only apply to future deaths after the passing of the legislation?

Existing assignments and licences

Another consideration is what becomes of assignments of copyright and licences that were contracted for the then full-term of the copyright. Will these automatically be extended by 20 years? If so, this will be at the expense of the creators who will not have been paid or involved in the extension and which was never anticipated at the time of the creation of the agreements.

In addition, there may be a series of required changes and additions in the Act as to other matters as well. For instance, under Section 14(i) of the Canadian Copyright Act, in essence it states that unless assignments and licences given by a creator during the lifetime of the artist are reaffirmed in the Will of that artist, then the last half of the 50-year term after death will be returned to the estate (it excludes collective works). Will this now be changed from 25 years to 35 years being half of the extended 70-year term?3

Crown copyright

Under US copyright law, the federal government does not claim copyright on government-created documentation, as opposed to its Canadian counterpart, where there is a Crown copyright on Crown and Crown agency original materials for a term of 50 years. Will this paragraph have to be removed?4

It appears as though the Americans will have significant oversight in the process of Canadian copyright revision, the impact of which will be interesting to see.

Moral Rights

The 20-year copyright extension should also extend the term for Moral Rights. These are important Rights for the artist and his or her estate, for they deal with the reputation of the artist and the integrity of the artwork.

In Canada, the Moral Rights arise from copyright but then exist independent of copyright. Even after the sale of the copyright, these rights continue to be owned by the artist or estate, unless they are waived.

These rights of the "author" include the following: the right to claim authorship of the work, the right to restrain any distortion, mutilation or other modification of the work that would be prejudicial to the author's honour or reputation. Also included is a right of "integrity" to the work, which includes the right to prevent the infringement of the artist's reputation by utilization of the works in connection with a product, service, cause or institution prejudicial to the honour or reputation of the author. It goes so far as to deem prejudice to have occurred as a result of any such distortion, mutilation or other modification of a painting, sculpture or of an engraving. There are certain exception to prejudice, such as a change in the location of the work, the physical means by which a work is exposed, the physical structure containing the work, or steps taken in good faith to restore or preserve the work; none of which shall alone be deemed to loan to constitute a distortion, mutilation or other modification of the work. In addition, the author also has the right to be associated with the work as its author or to remain anonymous.

Moral Rights cannot be assigned, but may be waived in whole or in part.

These rights are descendible to the artist's estate and beneficiaries. Note this is different from the US law, under which Moral Rights expire on the death of the creator.

Will this have to change in Canada to conform to US law?5 Copyright for 70 years after death – Moral Rights – extinguished on death?

Donations

Copyright is not accepted as a donation under the Canadian Cultural Property laws. The Canadian Cultural Property Export Review Board is not authorized to deal with the donation of intellectual property of an artist, which can only be donated under normal charitable rules. Artists cannot receive the special tax benefits available under the Cultural Property Export Import Act for donations of intellectual property. This Act can deal only with the physical property of the artist.6

Consequences of changes

As a result of the forthcoming changes to the term of copyright and Moral Rights, better attention may have to be paid to valuations of assignments and licences (be they exclusive or non-exclusive), which are granted for the full-term of the copyright including the 70-year term. There may also be difficulty in having a "human" art executor (versus a corporate one) appointed for that term, especially in light of the reversion possibility under Section 14(1) of the Copyright Act.

Intent of estate rights

One of the intents by the original drafters of the Copyright Act in Britain was to ensure that every opportunity be obtained by the artists and their estates to be compensated for use of their original work. As a result, the term after death was added as a benefit to the estate. This was in the hopes that if it were possible the artist's reputation would be viewed more positively after death, and thus give rise to potential additional compensation, those funds would be available to the artist's family. The extra 20 years should help with that concept.

Droit de suite

We do not have a residual rights law in Canada – a "droit de suite" – as they do in Britain and Europe, to enable artists and their estates to participate in the increased value of an artwork when sold at public auction. Perhaps this additional 20- year period for copyright will help alleviate some of that issue – at least temporarily.

It will be interesting to watch as proposed revisions by the Canadian federal government are brought forward in compliance with the USMCA and in consultation with the US. Will the US have a veto? Will there be 'consultations' or will these changes be by US direction?

Time will tell.

Footnotes

1 Copyright Act, Section (6)

2 Copyright Act, Section (14.2)

3 Copyright Act, Sections (14.(1)(2)(3)(4) & (14.2 (1)(2)(3) & Section 17(1) & Section 28.1, 28.2 (1)(2)(3)

4 Copyright Act, Section (2)

5 US Code, Title 17 (The Visual Artists Rights Act)

6 Canadian Cultural Property Export Control List C.R.C., c.448

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