Knowledge & News

Canadian consultation on extending the general term of copyright open through March 12

18 February 2021

Consultations

Canada has committed to extending the general term of protection from its current term of 50 years from the end of the year the last author dies to 70 years from the end of the year the last author dies. This is part of Canada’s commitments under the Canada-United States-Mexico Agreement (CUSMA), and the term extension should be implemented by the end of 2022.

On February 11, 2021, the Ministry of Innovation, Science and Industry along with the Ministry of Canadian Heritage announced the launch of a public consultation to discuss how to implement the extension of this general term of copyright protection.

The consultation is open through March 12, 2021 and will solicit views on whether accompanying measures should be adopted to address potential implications of term extension, and if so, what form such measures should take. Following the consultation, responses will be published online and will inform the policy development process.

Potential Implications

While some stakeholders are of the view that a longer term would increase opportunities to monetize copyrighted content in Canada, others have raised concerns over potential implications in relation to access to works. Of particular concern are access to orphan works and out-of-commerce works.

Orphan works may be defined as works that are still under copyright protection, but where the copyright owner is not known or cannot be located. Under the current Act individuals who wish to use orphan works mat apply to the Copyright Board of Canada (the Board) for a non-exclusive licence. This regime has a number of limitations including for works in the digital environment and places an administrative burden on the Board.

Another potential implication of extending the general term of copyright protection relates to out-of-commerce works. Out-of-commerce works are generally understood to be works that are still under copyright protection, but are no longer available to the public through customary channels of commerce. Currently, the Act does not provide for the availability of licences for published out-of-commerce works following the death of the author.

With this in mind, the Government is specifically inviting comments on possible measures that could accompany term extension in order to facilitate access to orphan works and out-of-commerce works.

Renumeration measures open for comment include:

1) expanding the current orphan works licensing regime and/or publishing out-of-commerce works for the entire term of protection
2) developing a collective licensing regime to facilitate uses of orphan works and/or out-of-commerce works
3) permitting the use of orphan works and/or out-of-commerce works, subject to claims for equitable remuneration at a later date

Exception measures open for comment include:

1) permitting use of works during the additional 20 years of protection
2) providing an exception for use of works 100 years after its creation

Further Consultations

The public can expect more consultations by the government by summer 2021. The government is currently reviewing recommendations that stemmed from the parliamentary review of the Copyright Act. These upcoming consultations relate to the development of modern frameworks for online intermediaries, artificial intelligence and the Internet of Things.

Authors

Catherine Lovrics

Catherine Lovrics Partner Toronto (Canada) Canadian Trademark Agent, Barrister and Solicitor

Dian P. Thompson

Dian P. Thompson Associate Toronto (Canada) Barrister and Solicitor

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