The Canadian Bar Association
Intellectual Property

Canada is out of step on copyright protection

All that is old could become new again as Canadian copyright holders scramble to make their catalogues relevant and protect their intellectual rights because of a quirk in how Canada applies its laws, says Toronto copyright lawyer Taras Kulish.

 

As it stands, Canada’s copyright protection extends for 50 years after an author’s death, which is out of step with most of the rest of the world where it extends for 70 years, Kulish, a senior associate with Steinberg Title Hope & Israel LLP, tells AdvocateDaily.com.

“Canada had agreed to extend copyright for 70 years as part of the Trans-Pacific Partnership (TPP),” Kulish, says. “But the TPP hasn’t been ratified and given what is happening in the United States,the TPP it won’t likely hold up.”

While protection for sound recordings has been extended to 70 years after death, he says, literature remains at 50 years. The wrinkle, however, is that copyright holders can “extend” their rights by publishing new versions of old works.

For example, he says, if the copyright holder of C.S. Forester's catalogue were to publish a graphic novel based on the author’s works, that comic book would be considered a new work and the copyright would extend 50 years from the end of the year of publication. Forester, whose real name was Cecil Louis Troughton Smith, wrote about naval warfare, including the popular Horatio Hornblower series, and died in 1966.

Kulish says the copyright in Canada on his work expired at midnight, Dec. 31, 2016. However, the copyright holders continue to be protected in Europe and the U.S. 

“They can’t extend the copyright — except by publishing new versions which would be protected new works in their own rights — and they can’t assign the copyright to their family or a corporation to extend it,” he says.

Other famous authors whose copyrights expired after 70 years in both Canada and the U.S. include Jack London (1876-1916) Call of the Wild. Frank Baum (1856–1919), The Wonderful Wizard of Oz; and Zane Grey (1872–1939), Riders of the Purple Sage.

Those works whose copyright are expiring soon after 70 years but have already expired in Canada, include Edgar Rice Burroughs (1875–1950), Tarzan of the Apes; F. Scott Fitzgerald (1896–1940),The Great Gatsby ; William Faulkner (1897–1962), The Sound and the FuryMargaret Mitchell (1900–1949), Gone With the Wind; and Ernest Hemingway (1899–1961), For Whom the Bell Tolls. In Forester’s case, there are some posthumously published works including the unfinished Hornblower and the Crisis (1967), Long before Forty (1967), a compilation of four books (1968), and others works published right up to 2011.

“Those are considered new works and, as such, the copyright is extended 50 years on those publications,” Kulish says.

You can also extend copyright by publishing the old works with new appendices or additional commentary and historical research, he explains.

“All that is old becomes new again and protected by copyright,” Kulish says.

But don’t wait for a rush of great stories and characters from the past to be turned into new media properties after 50 years, he warns.

“The expiry of copyright only stands in Canada after 50 years,” Kulish says. “So you can go ahead and make a new movie or TV series or whatever using those stories and characters, but you can’t sell them into the United States or Europe, so you have to ask, is it worth it for such a small market?”

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