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CHANGE TO COPYRIGHT LAWS MEANS YOU'LL HAVE TO WAIT TO USE THIS LITERARY GIANT'S
WORK FOR FREE

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NO ADDITIONAL CONTENT WILL BE ADDED TO THE PUBLIC DOMAIN IN CANADA UNTIL 2043

Joseph Pugh - CBC News



Posted: January 07, 2023
Last Updated: January 07, 2023

Works by fantasy author J.R.R. Tolkien, including The Lord of the Rings books,
were set to enter the public domain in Canada, but recent changes to copyright
laws here mean works by those who died after 1972, will now be protected by
copyright until 2043. (Penguin Random House)

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. 

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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. (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?"

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LISTEN | Winnie the Pooh and copyright laws, too: 

Show more
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.  9:46




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. 



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.

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"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. 



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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.

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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 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.



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



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"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.

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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.



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.' "


ABOUT THE AUTHOR



Joseph Pugh

Joseph Pugh is a writer with the Entertainment department at CBC News. Prior to
joining CBC he worked with the news department at CHLY, Nanaimo's Community
radio station, and taught math at Toronto's Urban International School. He can
be reached at joseph.pugh@cbc.ca

CBC's Journalistic Standards and Practices


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