An Order in Council published earlier this week fixed December 30, 2022, as the date on which legislation to extend the basic term of copyright protection in Canada from 50 years after the author's life to 70 years thereafter will come into force. After years of consultation and debate, this legislation received Royal Assent on June 23, which we reported on, and was prompted by Canada's commitment under the Canada-United States-Mexico Agreement (CUSMA). It will extend the basic term of protection for copyrighted works in Canada under the Copyright Act from the life of the author plus 50 years (calculated from the end of the calendar year of their death) to life plus 70 years. The government had indicated in its 2021 consultation on extending the term of protection that implementation would occur before 2023.
As noted in our previous report on this legislation, the government's decision on whether to implement the change by December 31, 2022, or on January 1, 2023, has significant implications because the amendments do not revive the copyright in works in which copyright has already expired. Accordingly, the government's decision means that any works not yet in the public domain (i.e., works in which copyright has not yet expired) by the end of this year, or which are created on or after December 30, will benefit from an additional 20 years of protection. Works already in the public domain by this date, however, will not benefit from the extension.
The extended term of protection will align Canada with the United States and the European Union, two of Canada's major trading partners. It could also indirectly impact other areas of copyright law not expressly addressed by the amendments, including reversionary rights and fair dealing, which were discussed in greater detail in our previous report. In particular, Canadian courts may view the extension as shifting the delicate balance of copyright law in favour of rightsholders over users and may take broader approaches to fair dealing and other exceptions under the Copyright Act to preserve the balance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.