Term of Copyright

Under Canadian copyright law, the duration of copyright protection depends on various factors, including the type of work, authorship, and whether any exceptions apply.  Generally, copyright subsists in a work for the life of the author, the remainder of the calendar year in which he dies and 70 years thereafter (s.6).

• Unpublished works have unlimited perpetual copyright protection

• Crown works? 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 following principles highlight the term of copyright as defined by the Copyright Act, supplemented by significant legal cases that illustrate these principles in practice.

• General Rule: According to Section 6 of the Copyright Act, copyright generally subsists for the life of the author, plus 70 years following the end of the calendar year in which the author dies. This recent update from 50 to 70 years aligns Canadian law with international standards, giving creators and their estates a longer period of exclusive rights.

  • Example: If an author passes away in 2024, copyright protection will continue until December 31, 2094.

• Works of Joint Authorship: For works with multiple authors, the term is determined by Section 9(1) of the Copyright Act, which states that copyright protection extends for the life of the last surviving author, plus 70 years from the end of the calendar year in which they die. This allows joint authors to protect their work collectively, with the copyright term based on the longevity of the work’s creators. 

  • Example: If two co-authors create a novel, and one dies in 2020 while the other dies in 2030, copyright protection will extend until December 31, 2100, 70 years after the last author’s death.

• Derivative Works and Term Extension: Although the Copyright Act doesn’t directly extend the term for derivative works, adaptations such as translations, dramatizations, or remakes can receive their own layer of protection if substantial new creativity is added. These derivative works continue to be protected within the original term, thereby extending the economic value of the original work. The copyright term may indirectly be extended or preserved by creating derivative works, where each adaptation or transformation of the original work introduces a new layer of copyright protection for the author or rights holder. Example: In Théberge v. Galerie d’Art du Petit Champlain Inc. (2002), the Supreme Court ruled on whether a gallery’s act of transferring a poster image onto canvas constituted a copyright infringement. Although the case did not grant new copyright protection for the derivative use, it illustrated that derivative works can extend the economic utility of a work within its original copyright term, balancing between protection and allowing for limited adaptations.

  • Case Example: Théberge v. Galerie d’Art du Petit Champlain Inc. (2002) – In this case, a gallery transferred an image from a poster to canvas without altering it, prompting the artist, Théberge, to allege copyright infringement. The Supreme Court ruled that transferring an image without modification did not constitute a copyright infringement, emphasizing that copyright laws should not overly restrict adaptations or minor transformations of existing works. This case underscores that derivative works may extend the reach of the original work's economic value, provided that the core integrity and rights of the original creator are respected.

• Posthumous Works (Published After Author's Death): For works published after an author’s death (posthumous), Section 7(1) states that copyright lasts for 70 years from the end of the calendar year in which the work is first published.

• This protection is designed to allow the estates of authors to benefit from their creative works even if they were unpublished during the author's lifetime. Canadian copyright law extends protection for works published posthumously, calculating the term from the date of first publication to provide sufficient economic benefit to the author’s estate. Example: In Estate of Glenn Gould v. Gould Estate Limited (2000), the court ruled on copyright protection for Gould’s unpublished works, applying the standard term for posthumous publications. This case highlights how term limits protect both the original creator’s rights and their estate’s interest, even after the creator’s death, ensuring unpublished works are not prematurely in the public domain.

  • Example: If an unpublished manuscript is discovered and published for the first time in 2025, copyright protection will last until December 31, 2095.

  • Case Example: Estate of Glenn Gould v. Gould Estate Limited (2000) – The estate of Canadian pianist Glenn Gould sought copyright protection for Gould's unpublished works. The court applied the standard term for posthumous works, protecting the estate’s rights to release and profit from the works. This case illustrates how Canadian copyright law preserves the rights of an author’s estate, ensuring that unpublished materials are not prematurely available to the public.

• Anonymous and Pseudonymous Works: According to Sections 6.1 and 6.2, when the identity of an author is unknown, copyright protection lasts until the earlier of:

  • 1) 70 years from the end of the calendar year of first publication, or

  • 2) 100 years from the end of the calendar year in which the work was made or created.

  • Example: An anonymous poem published in 1950 will have copyright protection until December 31, 2020 (70 years after publication). If it remains unpublished, protection lasts until December 31, 2050 (100 years after creation).

• Fair Dealing as a Limitation on Copyright Term: Section 29 of the Copyright Act provides that fair dealing for purposes such as research, private study, criticism, and review does not infringe copyright. This provision is an important limitation on copyright that allows certain uses to benefit the public, particularly in academic and informational contexts. Fair dealing provides a critical limitation on the copyright term by allowing certain uses, such as research, private study, and education, without infringing copyright. This principle underscores that the public interest can sometimes override the rights of copyright holders within the term. Example: In CCH Canadian Ltd. v. Law Society of Upper Canada (2004), the court found that fair dealing allowed the Law Society to make copies for legal research purposes, even though the original works were still under copyright protection. This case demonstrates how fair dealing permits access to works during the copyright term, ensuring copyright protections do not unduly restrict educational and research needs.

  • Case Example: CCH Canadian Ltd. v. Law Society of Upper Canada (2004) – The Supreme Court ruled that fair dealing allowed the Law Society to make copies for research purposes, underscoring that copyright terms should not unduly restrict access to information. This decision clarified that copyright must be balanced with users’ rights, especially when dealing with educational and research needs, supporting the fair dealing exceptions even within the copyright term.

Copyright Ownership in Commissioned Photographs

• Photographs: Under Section 10, photographs are protected under the general rule of life plus 70 years. This ensures that photographers’ works receive the same term of protection as other creative works.

  • Example: A photographer who takes a photo in 2010 and passes away in 2060 will have copyright on that photograph until December 31, 2130.

• Special cases re: photographs?

  • The copyright in photographs is for the life of the author plus seventy years. (Before Bill C-32, the term was the remainder of the calendar years of the making of the photograph and a further fifty years).

  • Where the owner is a corporation, the term of copyright in a photograph is the remainder of the year of the making of the initial negative or plate (or initial photograph where no negative or plate) plus seventy years.

  • If the author of the photograph is a corporation in which the majority of voting shares are owned by a natural person who is the author of the photograph, then the term of copyright is the remainder of the calendar year in which the author dies, and 70 years following the end of the calendar year.

    In Canada, Section 13(1) of the Copyright Act establishes that copyright is owned by the author of the work—in this case, the photographer—regardless of whether the work is commissioned or whether the photographer is hired.

    The default rule is that the photographer (the creator) owns the copyright to a photograph, even if the work was commissioned or the photographer was hired. To transfer copyright ownership from the photographer to the hiring party, this must be explicitly stated in a written contract. Without a clear, written agreement, the photographer retains all copyright ownership and exclusive rights to the photograph. 

    Therefore, when hiring a photographer, it is crucial to explicitly state in a written contract that the copyright will be transferred to the hiring party if that is the intention. Without this contractual provision, the photographer retains full copyright ownership and control over the photograph, including reproduction, distribution, and licensing rights.

    Relevant Case Law

    • CCH Canadian Ltd. v. Law Society of Upper Canada (2004):

      Although not specific to photographs, this Supreme Court case is foundational in emphasizing that copyright ownership and any transfer of rights must be explicitly stated to avoid ambiguity. The court underscored that rights in commissioned works belong to the creator unless a written agreement states otherwise.

    • Griffin v. Sullivan (1954):

      This case specifically dealt with commissioned photography. The court held that unless there is a written agreement stating otherwise, the copyright remains with the photographer, even if they are hired to take photographs for someone else. This case reinforces that copyright defaults to the creator, and transfer of ownership must be explicitly agreed upon in writing.

    • Stevens v. York (1998):

      In this case, a client attempted to use commissioned photographs for purposes beyond the initial agreement without obtaining explicit copyright ownership from the photographer. The court ruled in favor of the photographer, highlighting that the original copyright owner controls usage rights unless explicitly transferred.

     

    • Written Agreement Requirement: To legally transfer copyright ownership, the hiring party must include an explicit statement in the contract detailing that the copyright for the photographs will be transferred to them.

    • Scope of Usage Rights: If full copyright transfer isn’t feasible, a contract can specify limited usage rights (e.g., for advertising or personal use) without transferring copyright entirely. This can protect the photographer’s rights while giving the hiring party specific permissions.

    These cases and Section 13(1) of the Copyright Act establish that copyright in a photograph, even when commissioned, remains with the photographer unless there is a written agreement that clearly transfers ownership to the client.  This approach is commonly used for commissioned work in Canada, where explicit contractual terms are needed to avoid any misunderstandings about ownership rights. 

• Crown Copyright and Terms for Government Works: Works created by or for the government, known as Crown copyright, have a unique term as per Section 12. These works are protected for 70 years following the end of the calendar year of first publication, after which they are made accessible to the public. Principle: Works created for or by the government, known as Crown copyright, have unique terms that differ from general copyright. This ensures that publicly funded works have a finite term that supports public access. Example: In Keatley Surveying Ltd. v. Teranet Inc. (2019), the court ruled that survey plans filed with a provincial land registry system fell under Crown copyright. The ruling clarified that Crown works, even if created by private individuals, are protected for 70 years post-publication, maintaining a different term structure to support government-held content while eventually enabling public access.

  • Case Example: Keatley Surveying Ltd. v. Teranet Inc. (2019) – In this case, the Supreme Court ruled that survey plans filed with the government land registry fell under Crown copyright. This decision clarified that government works are protected for a limited term, ensuring eventual public access while protecting the government’s interests during the copyright term.

• Unpublished Works: Previously, unpublished works had perpetual copyright protection. Under current law, they are protected for life plus 70 years if the author is known, or for 100 years if anonymous.

  • Example: A diary written in 1920 and unpublished would have copyright protection until December 31, 2020 (100 years after creation).

• Fair Use in Educational Settings: Educational institutions must comply with fair dealing policies for the use of copyrighted materials. Fair dealing in education must align with copyright terms and be justifiable as per Section 29.4. Fair use in educational contexts operates within copyright terms, requiring institutions to use materials in a way that aligns with fair dealing standards, even if the works are still protected. Example: Access Copyright v. York University (2021) emphasized that universities must adhere to fair dealing policies when using copyrighted works. The court found York University’s policy insufficient under fair dealing standards, highlighting that educational uses must respect copyright terms unless fair use exceptions apply. This case serves as a reminder that fair dealing must be clearly outlined and justifiable within the copyright term.

  • Case Example: Access Copyright v. York University (2021) – The Federal Court emphasized that York University’s fair dealing policy was insufficient, underlining that fair dealing policies must be clear and justifiable within educational settings. The case highlights the importance of balancing educational needs with respect to copyright terms, illustrating that fair use provisions require detailed policies to avoid infringement.

• Limited Economic Rights in Commercial Designs: Under Section 64, copyright in commercial product designs does not include exclusive economic rights like import rights, thereby allowing some competitive freedom while protecting the creative elements of the design. Copyright in commercial designs, such as packaging, may not include full economic rights, such as exclusive import rights. This limitation allows for reasonable competition while protecting the creative aspects of product designs. Example: Euro-Excellence Inc. v. Kraft Canada Inc. (2007) explored the scope of copyright on chocolate packaging, with the court ruling that copyright did not extend to exclusive import rights. The case demonstrates that copyright terms for commercial designs are specific to the creative elements, supporting intellectual property rights without monopolizing the commercial distribution channel.

  • Case Example: Euro-Excellence Inc. v. Kraft Canada Inc. (2007) – Kraft sought to use copyright to prevent importation of chocolates bearing their logos. The Supreme Court ruled that copyright did not extend to exclusive import rights, showing that copyright protection for commercial designs does not monopolize the distribution channel but instead safeguards only the creative elements, such as logos or packaging artwork.

© Entcounsel, 2024

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