Emily Xiang is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.
Huge changes have come to the Canadian Copyright Act. In late November of 2022, an Order in Council was signed to fix December 30, 2022 as the date on which Division 16 of Part 5 of the Copyright Act came into force. The amendments come by way of Bill C-19, the Budget Implementation Act, 2022, No. 1 legislation passed back in June 2022 to increase the term of copyright protection from 50 years to 70 years following the end of the calendar year of the author’s death.
The new changes are in line with Canada’s treaty obligations under the Canada-United States-Mexico Agreement (CUSMA), which came into force on July 1st, 2020. Under CUSMA, the country made a commitment to extend its general term of copyright protection from 50 years to 70 years following the life of the author, with a transition period lasting until the end of 2022 to implement the changes. The extension brings Canada in line with other jurisdictions, including with many of its major trading partners, such as the United States, the United Kingdom, and the European Union. This extension will hopefully generate new opportunities for investment and commerce for Canada’s creative industries.
Following CUSMA, the Government of Canada commenced public consultations in early 2021 on the implications of the proposed copyright term extension. The consultations were met with mixed reactions. Many believed that the extended term of protection would provide rights holders with more time to commercialize their works, thereby incentivizing creative production. On the other hand, the proposed amendments also garnered significant pushback, particularly from user-oriented groups, as the extended term would mean further restriction on public access. An overview of the differing views from the perspective of the educational publishing industry in particular can be found in this IPilogue article.
Following the public consultations, Prime Minister Justin Trudeau also addressed mandate letters to the Ministers of Canadian Heritage and of Innovation, Science and Industry, requesting that the departments work together to amend the Copyright Act in order to further protect artists, creators, and copyright holders. A commitment to making the legislative changes was also included in the 2022 Canadian federal budget.
With the changes to the Copyright Act coming into effect, there is more clarity as to what works might be encompassed by the new amendments. According to firms that specialize in intellectual property law, the extended term of protection will not apply to works that already entered the public domain before the amendments come into force. Works with copyright set to expire on or before December 30, 2022 will not be privy to the extended protection term. In other words, the extension will not operate retroactively. On the other hand, copyright in a work that is set to expire on or after December 31, 2022 should benefit from an additional 20 years of protection.
