Canada opens a public consultation on the extension of the term of copyright protection

By Emmanuel Legrand

The Canadian government has opened a public consultation related to the implementation of the extension of the general term of copyright protection "to consider whether to adopt accompanying measures to mitigate the potential implications of this longer term of protection."

  Canada has agreed to extend its general copyright term of protection from 50 to 70 years after the life of the author. The new provision is made necessary by Canada being party to the Canada-United States-Mexico Agreement (CUSMA), which requires that the new term extension be implemented by the end of 2022. Canada is the only of the three countries to have to adjust its copyright legislation since the USA already has the provision in its copyright law, while Mexico has an even longer term of protection.

  According to the Canadian government, the consultation will "provide the public and interested stakeholders with an opportunity to discuss possible impacts and to consider measures that may address potential implications of the extended term of copyright protection."

Move forward with copyright reform

  Canadians are invited to share their views on: the adoption of accompanying measures to term extension, including which measures, if any, should be considered; and any additional ideas, comments, legal analysis and evidence in support of potential accompanying measures.

  “Every Canadian is affected by Canada’s copyright laws and I invite them to share their views on term extension," said Philippe-François Champagne, Minister of Innovation, Science and Industry. "Canadians expect copyright law to be fair and balanced, and to keep pace with technological and social change. These consultations will help meet our commitments under CUSMA and guide us as we move forward with copyright reform.”

  Steven Guilbeault, Minister of Canadian Heritage added: “We want Canadian creators to be able to operate on a level playing field with their international partners. Our creators and rights holders should reap the full rewards of their work, and Canadians should have access to a variety of content. Implementing our CUSMA commitment to extend the general term of copyright protection will contribute to a healthy Canadian copyright marketplace.”

The case for orphan works

  Of particular interest to the government is the impact of the new term on works due to enter the public domain and that will be given copyright protection for another 20 years; access to orphan works; availability of out-of-commerce works, among other issues. The government will consider measures to enable use of works not currently being commercialised in exchange for remuneration.  

  Several options are under review:

  1 — Expand Canada's current orphan works licensing regime/extend regime to out-of-commerce work, so that it includes unpublished orphan works and/or published out-of-commerce works for the entire term of protection, to facilitate broader access to such works following term extension;

  2 — Develop a collective licensing regime inspired in part by the EU orphan works and out-of-commerce works directives to facilitate uses of orphan works and/or out-of-commerce work;

  3 — Permit non-profit libraries, archives and museums (LAMs) to use orphan and/or out-of-commerce works by default, without being required to first obtain a license from the Copyright Board, in order to achieve aims related to their public interest missions;

  4 — Provide exception for use of works during the final 20 years of protection so that non-profit LAMs could be permitted to use works during the additional 20 years of protection in order to achieve aims related to their public interest missions;

  5 — Introduce an exception permitting non-profit LAMs to use a work 100 years after its creation, in order to achieve aims related to their public interest missions.

A combination of measures

  "Canada's term of copyright protection could be extended without accompanying measures, with one or a combination of the measures presented in this document, or possibly with alternative measures raised by stakeholders," noted the government in a white paper about the consultation.

  The consultation will close on March 12, 2021.