Copyright Term Pursuant to the Copyright Act
The copyright term in Canada varies from the copyright terms of other countries such as the U.S. or in Europe where the copyright term is longer. After the copyright term expires, the work goes into the public domain where it is no longer afforded the protection of the Copyright Act. This article outlines the special exceptions to this general rule for the term of copyright in Canada. See the Copyright Act to cross-reference the sections discussed below.
Generally, copyright term of a work subsists in the work for the life of the author, the remainder of the calendar year in which he dies and 50 years thereafter (s.6) in Canada and Britain. In Europe and the US, the term of copyright is the life of the author plus seventy years. After that time, the works shall fall into the public domain.
Canada follows the Berne Convention term that it adopted in 1924 which states the copyright term is for the protection of the author’s lifetime plus fifty years which the term expiring on December 31st in the year in which they are to expire. Section 6 of The Copyright Act reads:
The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.
Generally, copyright subsists in a work for the life of the author, the remainder of the calendar year in which the author dies and 50 years thereafter (s.6).
The copyright term also varies depending on certain factors such as those noted below:
Copyright Term for Works of joint authorship
The rule is life plus fifty years following the end of the calendar year of the last surviving author of the work. See section 6 and 9 of the Canadian Copyright Act.
Copyright Term for a work is published after an author’s death (posthumous)
When a work is published after an author’s death (posthumous), the copyright protection is calculated until the end of the calendar year and fifty years from first publication.
Copyright Term for Anonymous, Pseudonymous and Unpublished Works
Where the identity of the author is unknown, copyright shall subsist for whichever following terms ends earlier:
- the remainder of the calendar year of the first publication of the work and a period of fifty years following the end of that calendar year; and
- the remainder of the calendar year of the making of the work and a period of seventy-five years following the end of the calendar year
However, if the author’s identity becomes known during that period, then the standard copyright term of life plus fifty years would apply as per Section 6.1 of the Copyright Act.
For posthumous or anonymous works, the copyright term is for a period of fifty years following the end of the calendar year for the remainder of the calendar year:
- for the publication of a literary, dramatic or musical work, or an engraving, in which copyright subsists at the date of the death of the author (subject to subsection (2)) or in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last, but which has not been published
- in the case of a lecture or a dramatic or musical work, been performed in public or communicated to the public by telecommunication, before that date, copyright shall subsist until publication, or performance in public or communication to the public by telecommunication, whichever may first happen,
Unpublished works have unlimited perpetual copyright protection.
Copyright Term for Photographs
The copyright term in photographs is for the life of the author plus fifty years as the copyright term for all works of literary, artistic, dramatic and musical in nature. The copyright ownership of photographs was changed due to lobbying by the Canadian Association of Professional Image Creators (CAPIC) and PPOC’s lobbying activities with the federal government with Bill C-11, an Act to Amend the Copyright Act, voted at third reading and signed by the Governor-General in June 2012. Prior to this, the customer ordering a photograph was by default the first owner of copyright unless there was an agreement to the contrary. This changed with The Copyright Modernization Act.
Section 2 of the Copyright Act defines artistic work as including “paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works; (oeuvre artistique)”.
The Copyright Act further defines photographs as “including photo-lithograph and any work expressed by any process analogous to photography; (photographie)”.
Therefore, the photographer is the first author of the work and “the author of a work shall be the first owner of the copyright therein” as per Section 12(1) of the Copyright Act.
However, if the photographer made the work under a contract of employment or afterwards assigned the copyright to another entity, then the employer or other entity shall own the copyright but the photographer shall still retain the moral rights unless the photographer waives their moral rights. Section 13(3) of the Copyright Act notes copyright owner for works made in the course of employment:
Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.
Unpublished Works
Unpublished works have unlimited perpetual copyright protection.
Copyright Term for Crown Works
The term of copyright for Crown Works is the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year. Section 12 of the Copyright Act reads:
Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.
Sound Recordings
Sound Recordings? Performer’s performance? Communication Signal? Copyright exists for 50 years after the end of the calendar year of the first fixation of the sound recording, performance or communication signal. (s.23)
Corporations
When the author is a corporation? The term is 50 years from the end of the calendar year in which the original negative, plate or photograph was made. (s. 10)
Cinematographic Works?
For a cinematographic work with an arrangement giving it a dramatic character, the term of copyright is 50 years after the end of the calendar year in which the “author” dies.
For all other cinematographic works, the term of copyright is 50 years after the end of the calendar year of its making, unless it is published within that period, in which case the term is 50 years after the end of the calendar year of its first publication. (s.11.1)
Performer’s Performances?
Performers’ rights endure for a term from the time the performance was made to the end of the calendar year 50 years thereafter.
For countries that are treaty countries such as the Berne Convention, Universal Copyright Convention or World Trade Organization, the term of copyright in Canada will be extended if copyright still subsists in that country at the time it became a treaty country. If the country has a shorter copyright term than Canada, it will not be restricted to that shorter term.
