The announcement itself was a bit of an anticlimax. It was something that had been in the pipeline for months but until the publication of the Order-in-Council dated November 17 (released on November 23), it was still hanging as a piece of unfinished business. The wording was short, if a bit convoluted:
Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry and the Minister of Canadian Heritage, under section 281 of the Budget Implementation Act, 2022, No. 1, chapter 10 of the Statutes of Canada, 2022, fixes December 30, 2022 as the day on which Division 16 of Part 5 of that Act comes into force.
Here is my translation of the legislative-ese;
“The Canadian government has finally pulled the trigger on the implementation of legislation that amended the Copyright Act to extend the term of copyright protection in Canada from “life of the author plus 50 years” to “life of the author plus 70 years”, with effect from December 30, 2022.”
This amendment had been enacted as one of the numerous unrelated pieces of legislation bundled into the omnibus 2022 Budget Implementation Act introduced on April 7. It was, as I wrote at the time, “The Copyright Needle in the Budget Haystack”. That Act finally passed Parliament and was given Royal Assent in June of this year but the provisions of the legislation relating to copyright were not officially “proclaimed” (put into force) until the release of the November Order-in-Council, bringing the amendment into force on December 30, 2022.
The change was made as a result of a commitment made by Canada to the US and Mexico in the updated NAFTA agreement, the USMCA (referred to as the CUSMA in Canada). The text of the CUSMA required that Canada bring the extended term into effect no later than 2.5 years after the date of implementation of the new NAFTA Agreement, which was July 1, 2020. In other words, the extension of Canada’s copyright term of protection had to be brought into effect before the end of 2022.
Initially, it was not clear what form the provision would take. Copyright opponents lobbied to have an obstacle placed in the way of a straightforward extension by adding an “opt-in” provision in the form of a registration requirement imposed on the rights-holder in a narrow window before the original term of “life plus 50” expired. Failure to pro-actively assert the right to extension would result in copyright protection lapsing under the current “life plus 50” rules. As I pointed out in an earlier blog posting (“The Anti-Copyright Hyperbole Fails to Sway the Canadian Government”), this was a really bad idea. No other country has ever done this when implementing copyright extension. To do so would probably be a violation of Canada’s commitments under the Berne Copyright Convention, would impose an unnecessary and costly burden on rights-holders, and would create an unnecessary bureaucracy to implement and maintain a registration regime. Not only would the registration trip-wire impact rights-holders, it would also lead to confusion among users because of uncertainty as to which works still fell under copyright. Finally, it could possibly have led to a trade challenge from the US which could have argued that Canada had reneged on a CUSMA commitment.
Canada is always meticulous in seeking to ensure that the US lives up to the letter and spirit of its treaty commitments. The proposed US tax credit for electric vehicles that originally was to have been limited only to US made vehicles is a recent case in point. If Canada wants to ensure the US implements CUSMA in good faith, it needs to do so itself. In short, the additional registration requirement was not a realistic option. Fortunately, and sensibly, the Canadian government refused to countenance it.
However, that has not stopped copyright opponents from dredging up this tired old proposal, and from repeating the canard that copyright extension will lock up content for another two decades by delaying certain works from falling into the public domain. They will in all likelihood also repeat the false narrative about a longer term of copyright costing Canada hundreds of millions of dollars.
Canada will now join the more than 80 countries that have implemented an extension of copyright duration. This will bring Canada’s regime into alignment with most of its major trading partners including the US, the twenty-seven members of the EU, the UK, Japan, Korea, and Australia. New Zealand has also agreed to join the new international consensus as a result of its trade agreement with the UK. Canada will now be part of this club with a harmonized term of protection.
An extended term has several advantages for rights-holders, both in Canada and abroad. First, Canadian rights-holders (authors, publishers, film-makers, songwriters, musicians and so on) will benefit from the longer term of protection not only in Canada but also in the twenty-seven member states of the EU and in the UK. This is because those countries apply the extended term (an additional twenty years beyond the Berne Convention minimum of “life plus 50”) on the basis of reciprocity only. Canadian rights-holders will thus benefit from the full “life plus 70” term of protection for their works in the EU once Canada aligns its term of protection with the EU standard. The situation with the US is a bit different. Canadian rights holders already enjoy the benefit of the longer term south of the border, but US rights-holders are denied equal treatment in Canada. With Canada’s amended term, US rights-holders will get the benefit of the extra period of protection in Canada, and that alignment will bring about equality of treatment between US and Canadian rights-holders in both countries. There will also be a general benefit from harmonization of terms, which is one of the reasons the EU originally decided to go with the revised “life plus 70” standard. A number of EU member states either had terms that were shorter than “life plus 70” or longer, leading to a patchwork quilt of protection regimes and legal confusion. Harmonization with the EU was also the primary reason the US adopted a longer term in the 1990s, not to give the Walt Disney Company longer protection for the original Steamboat Willie cartoon, as copyright detractors love to pretend.
In its consultation paper on copyright extension, the Canadian government laid out the benefits of copyright extension from the perspective of its supporters;
“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. It will also harmonize Canada’s general term with that of our major trading partners, allowing Canadian rights holders to compete internationally on a levelled playing field.”
It also noted that “user stakeholders” had expressed concern about the twenty-year hiatus in works entering the public domain once the copyright term is extended. Works that would have fallen into the public domain in Canada on January 1, 2023 will now enjoy an extra twenty years of protection. While this had led to some hand-wringing, most users of copyrighted works won’t notice any difference. The main impact will fall on publishers, like Broadview Press in Canada, whose business model largely depends on reprinting works that have just fallen out of copyright and into the public domain. Broadview will now have to wait a couple of decades before pouncing on the next work to enter the public domain in Canada.
Economists have long argued over the modelling to determine net benefit or loss from stronger copyright protection. While a longer term for an existing work clearly carries no additional economic production incentive for the author since the work is already in existence, a longer term can provide an additional incentive for the creation of new works. Moreover, a longer term can also spur investment in existing works still under copyright through publication of new editions, and innovation in new formats including digitization, restoration and re-release of earlier works, such as films and other AV content. However, from my perspective, the most important benefit is that Canadian rights-holders, creators and creative industries, will now play on a level playing field with their competitors in most advanced nations. As of midnight, December 30, 2022, Canada will officially join the “life plus 70” copyright club. It’s about time.
© Hugh Stephens, 2022. All Rights Reserved.