Canada-United States-Mexico Agreement: A wind of change in copyright

Following the official signing of the Canada-United States-Mexico Agreement (CUSMA) during the G20 Leaders’ Summit in Buenos Aires in November 2018, the new agreement came into force on July 1, 2020. The CUSMA now replaces the North American Free Trade Agreement, which had been in place since 1994. At the time, NAFTA created the largest free-trade region in the world and shaped commercial activities on the continent.

The far-reaching impact of the CUSMA will be felt in numerous fields of commercial activity and its implementation will take time. In terms of intellectual property, its effects are already noticeable.

Extending the term of copyright to 70 years

The federal government is currently conducting consultations regarding extending the term of copyright for a protected work. Canada is currently somewhat standing alone with respect to the term of copyright compared to other countries, especially compared to its CUSMA economic partners. The current version of the Copyright Act provides the following general rule: unless otherwise stipulated in the Act, the copyright shall subsist for the life of the author and the remainder of the calendar year in which the author dies, as well as a period of fifty (50) years following the end of that calendar year (Section 6 of the Copyright Act).

The Berne Convention for the Protection of Literary and Artistic Work, dating back to 1886, has established the minimum standard for the term of copyright protection as fifty (50) years. However, many of Canada’s key trading partners have moved to a term of seventy (70) years following the calendar year of the death of the author, most notably, the United States, the European Union, the United Kingdom, Australia, Mexico and Japan.

While stakeholders are still debating the extension of the general rule, some changes have already been introduced pursuant to the CUSMA provisions. Bill C-4, An Act to Implement the Agreement between Canada, the United States of America and the United Mexican States, has already introduced certain amendments to the Copyright Act.

Section 6.1(1) of the Copyright Act has been modified to extend the term of copyright for an anonymous or pseudonymous work until the end of seventy-five (75) years following the end of the calendar year in which it is made. If the work is published before the copyright expires, then the copyright continues until the earliest of the end of seventy-five (75) years following the first publication of the work or one hundred (100) years following the date on which the work is made.¹

Section 11.1 of the Act has been modified to include an extension of the term of copyright applicable to cinematographic works until seventy (70) years following the calendar year in which the work is made. However, if the work is published before the copyright expires, the same extensions as section 6.1(1) will apply.

Finally, section 23(1)-(1.1) of the Act provides for the same extension as section 11.1 for sound recordings and performances fixed therein.

Stakeholders participating in the legislative consultations have raised two major issues regarding term extension, namely orphan works and out-of-commerce works.²

Orphan works are works still protected under copyright, but their owner is not known or cannot be located. This can happen if the owner has died without a clear assignment of the copyright to someone else or if the origin of the right is unclear or unresolved. The current legislation provides for the possibility to apply to the Copyright Board of Canada to obtain a non-exclusive licence for such work under certain conditions. However, the process can prove to be lengthy and is limited to published works, which limits the possibility of obtaining such a licence for works that have only been made available online through social media.

Out-of-commerce works are works still protected under copyright but no longer commercially available to the public; for example, a book that is no longer published for sale to the public in stores or otherwise. This situation causes issues, especially for public libraries and other non-profit organizations with large collections of works of cultural importance that have fallen out of commerce. It may be difficult for them to obtain permission from the actual right holders, rendering the collection unavailable to the public.

There remains a lot of work to be done to fully implement the provisions of the CUSMA, and other changes will come. Stay tuned!

¹ Bill C-4, section 24
² A consultation on how to implement an extended general term of copyright protection in Canada, is available online at http://www.ic.gc.ca/eic/site/693.nsf/eng/00188.html

By Langlois, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact canada@transatlanticlaw.com

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