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Canada enters a public domain pause as copyright laws change to match other nations – CBC News

Excited about Tolkien’s Lord of the Rings books entering the public domain in Canada? Thanks to recent changes to copyright laws here, you’ll now be waiting a couple more decades. 

When the copyright on a work expires anyone is free to use it without needing to seek permission. This is known as public domain. In Canada, copyright laws meant that books, films, songs or other works entered public domain 50 years after the death of the creator.

But last week, the country updated those laws, tacking on an extra 20 years, so works don’t enter the public domain until 70 years after the creator’s death. This means additional content will not enter the public domain in Canada until at least 2043. So the copyright on the works of fantasy author J.R.R. Tolkien, who died in 1973, will now expire in 2043, meaning the Lord of the Rings trilogy and many of his other works will become public domain on Jan. 1, 2044. 

The change brings Canada in line with other jurisdictions that lengthened their copyright terms decades ago. Some artists and creative unions welcome the change, while others feel the duration hampers public access to artistic works.

Canadian songwriter Marc Jordan from Toronto, whose credits include 1978’s Rhythm of my Heart, feels the copyright extension has benefits for his work down the road.

Canadian singer songwriter Marc Jordan has written songs for artists including Diana Ross, Cher, and Rod Stewart.

Canadian singer songwriter Marc Jordan has written songs for artists including Diana Ross, Cher and Rod Stewart. (Submitted by Eric Alper )

“If you’re going to go into this business, you want to know that there is some way you can make a living, and I think by extending this the extra 20 years … adds a little bit of value to what you’re doing,” he said. 

“People, companies will still make money from those songs if they’re used to promote a product or they’re used as a theme song, so why shouldn’t the heirs have some access to the value of that?”

LISTEN | Winnie the Pooh and copyright laws, too: 

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9:46Oh, bother! How Winnie-the-Pooh and Emily Dickinson highlight the flaws in U.S. copyright laws

The first Winnie-the-Pooh book by A. A. Milne is now in the public domain, but Disney, which owns the later Pooh copyrights, has fought vehemently to maintain its control of the honey-loving bear. It’s just one example of how U.S. copyright law has gone astray, according to Los Angeles Times columnist Michael Hiltzik.

Canada now on a par with other countries

Intellectual property lawyer Elizabeth Dipchand says this recent change is the result of what’s happening outside our borders. 

A headshot of Elizabeth Dipchand

Elizabeth Dipchand is a Toronto based intellectual property lawyer. (Submitted by Matt Huddleston)

“It is absolutely about copyright, but it’s actually more so about trade rights,” she said. “The management of intangible assets [doesn’t] stop at the borders.”

Both the European Union and the U.S. extended their copyright terms to 70 years after an author’s death at separate points during the 1990s (in the U.S., there are also different copyright rules regarding corporate-owned works and those from before 1978.)

In a statement to CBC News, the Office of the Minister of Innovation, Science and Industry cited the Canada-U.S.-Mexico (CUSMA) trade agreement as the reason for the change last week.

“In keeping with our trade obligations under CUSMA, Canada was required to extend copyright term protection by 20 years, to 70 years after end of life prior to January 1. This puts Canada in line with many other jurisdictions in the world, including Europe, the U.K. and Australia.”

Change not retroactive

But the change to Canada’s copyright laws is not retroactive, so any works whose creators died before 1972 are still available in the public domain.

This means for the next 20 years, there are a number of titles that have entered the public domain in Canada that still have copyright protection in most of the world. Some examples include the works of authors Ernest Hemingway, Sylvia Plath and James Bond creator Ian Fleming. 

Dipchand says Canadians could potentially use that material, but would need to be concerned about whether or not people could access them across borders, including via the internet. 

“Does that purpose behind what you’re going to do with the work, is that traded off against what potential hot water you can get into in a different jurisdiction?” she says.

According to Dipchand, live performance is one space Canadians could see the material used, allowing theatres to stage performances of public domain works here without having to pay royalties. 

anne of green gables by l m montgomery

Anne of Green Gables by Lucy Maud Montgomery is a classic Canadian novel beloved around the world. Montgomery’s works are in the public domain, but are also protected by trademarks. (The Canadian Press/University of Guelph, Spark Photo Festival)

Even when something is in the public domain, potential creators may still face issues.

Lucy Maud Montgomery’s Anne Of Green Gables, for example, entered the public domain 30 years ago. But The Anne of Green Gables Licensing Authority Inc., owned by the province of Prince Edward Island and Montgomery’s heirs, has a trademark on Anne of Green Gables, and has worked to protect it.

The impact of public domain

Neil Shyminsky, a pop culture writer and professor of English at Cambrian College in Sudbury, Ont., thinks most Canadians are unlikely to notice this copyright extension.

photo of Neil Shyminsky

Neil Shyminsky is a professor of English at Cambrian College in Sudbury, Ont. (Submitted by Neil Shyminsky)

“Really, it’s just the furthering of a situation that was already in place,” he said. 

In the U.S., works from 1927 are entering the public domain this year.

These include The Case-Book of Sherlock Holmes, the final Holmes novel by Arthur Conan Doyle, whose work has been in the Canadian public domain for decades.

Next year Steamboat Willie, the first cartoon featuring Mickey Mouse, is scheduled to enter the public domain.

“I expect that Disney will be spending the next 12 months lobbying really hard to get the United States to once again revisit and look at extending those copyright protections,” said Shyminsky.

But he says there is often an impact that comes with having content in the public domain sooner.

He cites the cultural revival of the 1946 film It’s A Wonderful Life as an example of a work that has come to be seen as a classic largely because it entered the public domain early. 

Though the film was not initially a commercial success, a bureaucratic error allowed it to enter the public domain in the 1970s.

A black and white photo shows George Bailey, played by James Stewart, surrounded by friends and family in the final scene from the movie It's A Wonderful Life.

Because It’s A Wonderful Life, released in 1946, entered the public domain earlier than it should have, TV stations began to play it without paying royalties, and it gained a reputation as a holiday classic. (RKO Pictures Inc/The Associated Press)

This meant television stations could play it without having to pay for the rights, giving the film a new audience and a reputation as a holiday classic.

“It allowed for this sort of democratisation of what it means to be popular,” Shyminsky said.

“Rather than ‘We’re going to push this, we’re going to put a marketing budget of multiple millions of dollars, and we’re going to tell you what is popular culture.’ “