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Canada extends copyright protection for estates

You may have heard that Canada has extended the term of copyright in the Copyright Act. What does this change mean for artists?

Copyright is the exclusive legal right to produce, reproduce, license, publish, or perform an original work of art. It gives you control over your work: how it is used, by whom, and on what terms. In Canada, original artworks are automatically protected once they are created. If someone wants to copy or use your work, they need to ask for permission and/or provide payment (with some exceptions, such as works in the public domain* or limited, prescribed “fair dealing” uses). You could sign away your rights, but it is generally not advisable to do so.

As of December 30, 2022, your copyright exists in Canada throughout your lifetime, and it continues to be protected for 70 years after your death. After that, the work is in the public domain* and anyone can use it.

Previously, the term of protection was “life plus 50”. It changed to life plus 70 years as part of the Canada-United States-Mexico Agreement (CUSMA). The change aligns Canadian laws with about 80 countries worldwide, including most of our major trading partners. This harmonization of copyright protection puts Canadian artists on a level playing field with artists in other countries.

Term extension will not be retroactive. This means if an artist died before 1972, their works are generally all in the public domain*. However, if an artist died in 1972 or later, their work falls under the new rule and copyright now applies to them for the life of the author plus 70 years. This term extension also applies to the artist’s “moral rights” (e.g., the right to be named as the author of the artist’s artistic work).

What is the public domain*?

The public domain refers to creative works that are legally available for use, and permission and/or payment are not required. This may be because the “life plus 70” term of copyright protection has expired. Or sometimes copyright just doesn’t apply: copyright protects the original expression of ideas or facts, but it does not protect ideas or facts per se.

You may wonder how this affects you, since the change directly involves estates.

Copyright is an asset, and many artists are relieved to know they can provide something of value for their heirs to benefit from after they are gone. Some artists also manage the estate of other artists. While CARFAC is most concerned with the livelihoods of living artists, we know there can be many expenses associated with maintaining an artist’s estate, including:

  • storing, preserving, and authenticating artwork;
  • creating a legacy fund, foundation, or museum;
  • administrative work involved in coordinating exhibitions and publications; etc.

Copyright revenue can help offset these costs. It’s often the only revenue estates receive to do this work, which contributes to Canada’s cultural legacy. The term extension allows an estate to benefit from royalties for a longer period, both in Canada and abroad.

John Degen from the Writers Union of Canada makes a compelling argument about why this legal amendment is a good thing. He contends that Canadian content remains available through estates – just not for free. The legislative change ensures that your legacy retains its value and integrity for longer.

Have you thought about who will look after your interests when you’re gone?

Chances are you haven’t, as only half of Canadians have a will. If you leave behind an inventory of art and/or retain copyright in your work, it is important to specify who will inherit them. It is also important to let your beneficiaries know what your wishes are so they can manage your moral and economic rights. While it is beyond the scope of this brief article, when doing estate planning, you should be aware of the reversionary provisions found in s.14(1) of the Copyright Act which could benefit your estate twenty-five years after death.

CARFAC Ontario has a publication, The Visual Artist’s Guide to Estate Planning. It is a practical guide to creating a will and it helps artists make informed decisions about the future of your art. For artists in Quebec, where civil law applies, RAAV has an article available, ‘L’art de protéger son patrimoine artistique au-delà de sa mort by Sophie Préfontaine.

If you’d like to speak with a lawyer who has experience with estate planning for artists, you can contact the National Network of Legal Clinics for the Arts.