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. 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. Life plus 50 was the Canadian rule when this article was first written in 2011. Since December 30, 2022, the general term in Canada is also life plus 70 years. The longer term did not bring back works already in the public domain. If an author died in 1971 or earlier, the life-plus-50 term had already ended by December 31, 2021, and the work stays in the public domain. If an author died in 1972 or later, the work now has life plus 70 years. For example, a work by an author who died in 1972 is protected until December 31, 2042.
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. When this article was first written, Section 6 of The Copyright Act read:
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.
Since December 30, 2022, section 6 reads:
Except as otherwise expressly provided by this Act, the term for which copyright subsists is the life of the author, the remainder of the calendar year in which the author dies, and a period of 70 years following the end of that calendar year.
So today, copyright generally subsists in a work for the life of the author, the remainder of the calendar year in which the author dies and 70 years after that (s.6). Copyright still ends on December 31 of the last year.
The copyright term also varies depending on certain factors such as those noted below:
When this article was first written, the rule was life plus fifty years following the end of the calendar year of the last surviving author of the work. Since December 30, 2022, it is life plus 70 years following the end of the calendar year in which the last surviving author dies. See section 6 and 9 of the Canadian Copyright Act.
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 only if the work was published, performed in public or communicated to the public before December 31, 1998 (s.7(2)). Since December 30, 2022, those works get the longer of that period and life plus 70 years (s.7(1)). Otherwise the ordinary life-of-the-author term applies, subject to the transitional rule in section 7(3).
When this article was first written, where the identity of the author was unknown, copyright subsisted for whichever of the following terms ended 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 became 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.
Since July 1, 2020, copyright in a work by an unknown author lasts until the end of 75 years after the year the work was made. If the work is published within that time, it lasts until the earlier of 75 years after the year of first publication and 100 years after the year it was made (s.6.1). The same rule applies where all the authors of a joint work are unknown (s.6.2). If the author's identity becomes commonly known during the term, the standard term applies, which since December 30, 2022 is life plus 70 years. The 2020 change did not bring back copyright that had already expired.
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:
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. That describes section 7(1) as it read when this article was first written. Since December 30, 2022, section 7(1) gives the longer of that period and life plus 70 years.
Unpublished works no longer have perpetual copyright protection. Under the old section 7, copyright in an unpublished literary, dramatic or musical work or engraving did not start to run out until the work was published, performed in public or communicated to the public. That rule now applies only to works published, performed or communicated before December 31, 1998 (s.7(2)). If a work of that kind was still unpublished on that date, and the author died in the 50 years before it, copyright lasts until December 31, 2048, or until 70 years after the end of the year of the author's death if that is later (s.7(3)). Other unpublished works follow the ordinary life-of-the-author term.
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. That has been the rule since November 7, 2012, and since December 30, 2022 the term is life plus 70 years. 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, which came into force on November 7, 2012. The old rule still applies to a photograph whose plate or original was commissioned before that date. For photographs commissioned since then, the photographer owns the copyright unless the contract says otherwise. A person who commissions a photograph or portrait for personal purposes and pays for it may still use it for private or non-commercial purposes, unless the contract says otherwise (s.32.2(1)(f)).
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 13(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 no longer have perpetual copyright protection. Since December 31, 1998 they receive the ordinary term, subject to the transitional rule in section 7(3) described above.
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. The 2022 extension did not change this term. 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? Performer's performance? Communication Signal? When this article was first written in 2011, copyright existed for 50 years after the end of the calendar year of the first fixation of the sound recording, performance or communication signal (s.23). These terms have since changed:
When the author is a corporation? When this article was first written, the term for a photograph owned by a corporation was 50 years from the end of the calendar year in which the original negative, plate or photograph was made (s. 10). Section 10 was repealed on November 7, 2012. Photographs whose copyright had already expired stayed in the public domain. For a corporate-owned photograph still in copyright on that date, the term is now worked out from the life of the individual who would otherwise have been its author.
Cinematographic Works? When this article was first written, for a cinematographic work with an arrangement giving it a dramatic character, the term of copyright was 50 years after the end of the calendar year in which the “author” dies. These films follow the general rule, so since December 30, 2022 the term is the life of the author plus 70 years.
For all other cinematographic works, the term of copyright was, when this article was first written, 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). Since July 1, 2020, these works are protected for 70 years after the year of making. If published within that time, they are protected until the earlier of 75 years after the year of first publication and 100 years after the year of making (s.11.1). The 2020 change did not bring back copyright that had already expired.
Performer's Performances? When this article was first written, performers' rights endured for a term from the time the performance was made to the end of the calendar year 50 years thereafter. A performance that is not fixed in a sound recording still has that 50-year term. For a performance fixed in a sound recording, see the current terms under sound recordings above (s.23).
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. In the current Act, a country that joins the Berne Convention, the WIPO Copyright Treaty or the WTO after a work was made or published is treated as if it had been a member at that date (s.5(1.01)). This does not protect a work whose term had already expired in that country before it joined (s.5(1.02)).
When this article was first written, it said that if the country has a shorter copyright term than Canada, it will not be restricted to that shorter term. In fact, until December 30, 2022, section 9(2), which appeared in the section on works of joint authorship, said the opposite for most countries: authors from a country that grants a shorter term could not claim the longer Canadian term. The exception was authors from countries party to NAFTA and, from July 1, 2020, CUSMA. The 2022 amendments replaced section 9, and the Act no longer contains that rule.