Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.
On June 23rd, 2022, the Parliament of Canada passed legislation to extend the term of copyright protection in literary, dramatic, musical and artistic works from life of author plus 50 years to 70 years. The extension may seem like an additional incentive for creativity, but many have consistently voiced that it won’t be as beneficial as anticipated.
The change results from Canada’s commitment in the Canada-United States-Mexico Agreement (CUSMA) to extend the general term of copyright protection. The Canadian government clarifies the extension’s benefits, stating that “[a] longer general term of protection will increase opportunities for Canadian rights holders to monetize copyright-protected content, thereby encouraging investment in the creation, acquisition and commercialization of such works.” The exact date of the change, and therefore the specific list of affected works, remains unknown.
Meanwhile, IP experts, organizations, and institutions continue to express concerns about the negative consequences of copyright term extension. Creative Commons expressed how the 20-year extension could “hamper creativity” by inhibiting them “to build upon and rework creative content”. The extension, they argue, would hinder creativity and stray from a balanced copyright system – one where “the rights and interests granted to both creators and the general public are necessary to stimulate vibrant creativity and foster the sharing of knowledge.” Experts have also pointed to studies conducted in other countries that show the negative effects of copyright term extension. According to an interesting study on “The effect of copyright term length on South African book markets,” a book entering the public domain generates 26.5 additional editions on average after it enters the public domain. Moreover, the availability of audiobooks for public domain bestsellers significantly increased from 1913-1922 compared with copyrighted bestsellers from 1923-1932.
Critics are also concerned about the extension’s impact on “orphan works” or “out-of-commerce works”, which was addressed in last year’s consultation paper on how to implement an extended general term of copyright protection in Canada. “Orphan works” are works that are still protected by copyright but whose owners are unknown or unlocated. “Out-of-commerce works” are works still under copyright protection but no longer available to the public through normal commerce channels. The main concern is that the 20-year extension will result in more orphaned or out-of-commerce works, posing more barriers to the further spread of ideas.
To address these issues, the Standing Committee on Industry, Science and Technology recommended implementing a system where copyright holders who want the extra year can register for it, while the other works will enter public domain. The Committee argues that this would contribute to a balanced system by protecting works with ongoing value while allowing works that don’t to enter the public domain. However, along with concerns about higher administrative costs, some are also concerned that the registration requirement could create a “two-tier copyright system” – one for owners who are knowledgeable and can afford the registration fees, and another for those owners who are unaware of the option to extend protection. Moreover, due to the varying times the works would enter the public domain, the two-tiered system could also hinder creativity.
The concerns are loud and clear. Despite being proposed to encourage creation, the extension seems likely to obstruct the very thing it was intended to promote.
