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Canada extends copyright protection for 20 more years under new trade obligation

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There will be no new books, songs or plays added to the public domain in Canada until 2043 after the government squeezed in a change to copyright laws just before the end of 2022.

Until Dec. 30, copyright protection applied to literary, dramatic, musical or artistic works for the life of their author plus another 50 years.

But as of that date, an artistic work won’t join the public domain for the life of the author plus another 70 years.

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The change brings Canada into compliance with a commitment it made under the new North American free trade deal to match its copyright protections with those in place in the United States since 1998. That deal gave Canada until Dec. 31, 2022, to fall in line and it beat the deadline by one day.

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In a statement from the office of Innovation Minister Francois-Philippe Champagne, the government said the change also puts Canada in line with many other countries, including those in Europe, the United Kingdom and Australia.

“Canada will continue to do its part to protect the interests of artists, creators and rights holders, while continuing to balance the needs of industry,” the statement said.

Public domain use means works can be republished or repurposed without seeking permission or paying a rights holder for the use of the work.

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It’s what has allowed, for example, numerous adaptations, reprints, prequels and sequels for “Anne of Green Gables,” which joined the public domain in the United States in 1983 and in Canada in 1992.

Public domain also allows libraries, museums and archives to use works freely for research and historical purposes, including posting online archives of the important papers of politicians and world leaders.

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Any remaining copyright on writings to or by former prime minister Lester B. Pearson would have been lifted on Jan. 1, under the old law because he died in 1972. Now that won’t happen until 2043.

It is not retroactive, but applies to any author, composer or screenwriter whose works would have been added to the public domain between now and 2043, meaning for 20 years nothing new will be added to the public domain in Canada.

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That period affects novels by Canadian authors such as Margaret Laurence and Gabrielle Roy, but also international writers such as J.R.R. Tolkien and Roald Dahl.

Writer associations have generally been in favour of the changes, saying the more assurance creators have to get paid for their work, the more incentive there is to create.

Academics, librarians, archivists and museums, however, argue that it limits their ability to access and use hundreds of works, most of which no longer have any commercial value.

“The reality is that the vast majority of works that enter into the public domain have very little, typically no commercial value anymore,” said Michael Geist, Canada Research Chair in internet and e-commerce law at the University of Ottawa.

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“And that’s one of the reasons why many others are really troubled by this extension, because so many of the works may have historical cultural value, but don’t have commercial value anymore.”

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Geist also disputes the notion the 50 year post-death time frame was stifling creation.

“No one is thinking of writing the great novel right now and might have hesitated for the last number of years because they’re heirs only got 50 years and they wake up this morning and think ‘now I’m really going to do it because there’s that extra 20 years of protection after I’ve died,”’ he said. “People just don’t think that way.”

He said the extra protection has a commercial benefit for a small number of people, and that could have been addressed with an opt-in clause, so rights holders of works that do still have commercial value could ask for an extension.

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He also said it extends the limits on access or use of what are known as orphan works, those which the rights holder is not easily reached.

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Geist also accused the government of burying the change, by putting it near the bottom of a nearly 450-page budget bill last spring. The government didn’t highlight the copyright act changes in any of its documents about that bill.

There was also no government announcement when cabinet decided in November to set the in effect date to Dec. 30, or when it did take effect. In all, the government issued 3,998 news releases in 2022 and not one of them was about the changes to copyright law.

“A lot of people are just literally waking up over the last couple of days to this issue and are shocked to learn this is something Canada went ahead and did, because it got so little coverage and attention,” Geist said.

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