On December 30, 2022, the extension of the copyright term under the Canada-United States-Mexico Agreement (CUSMA) is scheduled to come into force. This extension will increase the standard term of copyright protection in Canada by twenty years, from the life of the author plus an additional 50 years to the life of the author plus an additional 70 years.
Back on January 1, 2022, the copyright-protected works of authors or creators (I will use the term “authors” to cover all creators) who died in 1971 entered the public domain. Under the current term of copyright protection, works by authors who died in 1972 would enter the public domain on January 1, 2023, 50 years after the year of their death. With this 20-year extension, those works will now enter the public domain on January 1, 2043.
Although works that have already entered the public domain will remain in the public domain, as a result of this term extension Canada will now be entering a 20-year period during which no new works will enter the public domain.
To appreciate the impact of this 20-year extension, we need to understand the principles that underlie copyright.
- Copyright is a bargain between the authors of literary, musical, artistic works, etc., and the broader public who make use of those works.
- To ensure that authors have an incentive to create new works, those authors get certain limited exclusive rights for a set term, including publication rights.
- In exchange for creating and protecting these statutory rights, the general public benefits from access to published works during the copyright term, with limited rights to re-use those works.
- Works enter the public domain at the end of the term of copyright protection, after which those works can be used freely by anyone.
It’s clear that adding twenty years to the term of copyright protection won’t provide any additional incentive for authors to create new works. The authors will be long dead. However, corporations who have acquired the rights in the works from those authors might see some benefit by extending the period during which they can exclusively commercialize those works.
Copyright protection covers all original works from the moment they are created. Even when we limit our consideration to published works, which make up a very small fraction of all copyright-protected works, only a tiny percentage of that very small fraction will still have significant commercial value 50 years after the death of the author. During the additional 20 years that this term extension grants, that percentage will only become tinier.
On the other side of the bargain, we have the public, who expect reasonable access to published works during the copyright term and the right to use those works freely after they enter the public domain. “The public domain is part of the common cultural and intellectual heritage of humanity and is the major source of inspiration, imagination and discovery for creators.” (ifla.org)
Accompanying this 20-year increase to the term of copyright protection is an increasing practical challenge to ensure the public remains in a reasonable position to benefit from its side of the copyright bargain. For example, if a book is published when the author is 30 years old, and that book goes out of commerce, say, 10 years after publication, and if the author dies at 80 years old, then copyright protection for that work would extend for 120 years after publication (the 50 years until author’s death, plus 70 years after) which is 110 years after the work has been out of commerce. Although that work becomes part of the public domain, it may be very difficult to locate and gain access to a copy of the work once the copyright protection ends. Given that the work has been out of commerce for 110 years, published copies of that book would be over a century old.
From the public’s side of the copyright bargain, the term extension only enhances the current challenge of gaining access to an in-copyright but out-of-commerce work, as well as the challenge of ensuring that copies of such works survive so they can be accessed and used after they enter the public domain.
Preserving and maintaining public access to published works has never been the responsibility of the rights-holder, but rather it is a responsibility libraries and archives have undertaken. One step toward repairing the copyright bargain would be for the Copyright Act to acknowledge this responsibility and to better provide libraries and museums with the means to ensure that broad public access to out-of-commerce published works is maintained throughout the duration of their copyright term – however long it lasts – and beyond.
This problem of maintaining access is significant enough when we consider works that a publisher sells in a physical format. Digital works create an even greater problem. More and more libraries are relying on licensed digital resources, such as e-books, instead of purchasing physical books. These licences are of limited duration, and, at the end of the licence term, the library keeps nothing.
The repertoire of digital works made available for licensing is at the discretion of the publisher/licensor, and less popular works may cease to remain available for licensing. These works will then be out-of-commerce, but the library who had licensed the work when it was available is not normally permitted to retain a copy, so access to that work could effectively cease only a few years after publication, and perhaps a century before the copyright expires. Will there be a copy of the work to be found anywhere when it finally enters the public domain?
Some intervention by the federal legislature to support digital ownership or to allow libraries and archives to make archival copies of licensed digital works might help address this difficulty and protect the broader public interest in maintaining access to works.
However, not all reforms to restore the balance of this disrupted copyright bargain should be on the user side. One of the purposes of copyright protection is to provide authors with incentives to create new works. If authors are to benefit from the incentives of the Copyright Act, then more can be done to protect their interests. The interests of authors do not always align with the interests of publishers.
One approach to this would be to have the Copyright Act stipulate that no publishing agreement or any other agreement for the transfer of copyright could be for a term of longer than, say, 25 years, if the work remains in-commerce. This would allow that author to renegotiate the publishing agreement if the work continues to be of significant commercial value.
The Act could also require that all such agreements must include an earlier reversion of rights to the author should the work be out-of-commerce for a certain period. This would allow the author to make the work available under an open licence if they chose to do so, helping to ensure ongoing access to the work, even after it is no longer commercially viable.
Additionally, the Act might also be revised to include a clear and formal means by which authors (or their heirs) could place their works into the public domain before the term of copyright has expired.
The copyright bargain is perhaps best seen as a kind of public trust. When a work is published and the rights-holder accepts the benefits of the protections of copyright, then the public, through granting copyright protection, gains a stake in ongoing access to that work. This stake persists from the time of publication, throughout the period of copyright protection while the work is in commerce, during which time access to the work may require payment of a fee, throughout any subsequent period of copyright protection while the work is out of commerce, and then without limitation after the period of copyright protection has ended and the work has entered the public domain.
While it may be too late to stop the ill-conceived 20-year extension to the term of copyright, there remains an opportunity for us to encourage parliament to take steps to maintain the underlying principles and balance of the copyright bargain. Authors of works, as well as current and future users of those works, will benefit from revisiting what will truly benefit authors as well as what will serve the broader public interest in relation to the ongoing access to works.
The public domain is a valuable resource for everyone, and copyright protection is granted today at least in part in exchange for future additions to the public domain. We need more and louder voices to help parliament appreciate the importance of taking prompt action to ensure the ongoing availability of the future content of the public domain.
For additional information about copyright at the University of Alberta, or to arrange an information session for your department or faculty, check out the Copyright Office website, or email the help desk.
About Adrian
Adrian Sheppard has been the Director of the University of Alberta’s Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.