In 2024 the estate of street photographer Vivian Maier, who died 15 years earlier, sued Toronto’s Stephen Bulger Gallery for allegedly producing and selling reproductions of her work without authorization. 

In 2021 the heirs of Thomas P. Kelley sued author Nate Hendley for allegedly infringing on the copyright of Kelley’s book, The Black Donnellys, which was published three generations earlier in 1954. 

A recent expansion of Canadian copyright protection means contemporary artists and curators will increasingly face the prospect of being blocked from legally using and sharing items of cultural heritage by creators who are deceased – sometimes decades ago.  

The issue of copyright infringement is intricate with many different potential consequences. It is a balancing act between the rights of creators and users. 

When that balance works, artists and creators enjoy incentives that propel new work while members of the public enjoy consuming their content. As part of this balance, the Copyright Act includes ‘fair dealing’ provisions that permit the use of copyright protected materials without permission in certain situations including research and news reporting.  

Under most circumstances, copyright protection of written material, visual material and music prevents unfettered use. However, once a copyright expires the work enters the public domain which means it can be freely copied or adapted by new generations of creators making new things.  

A broad and deep public domain enriches our social and cultural lives. 

Extended protection in Canada 

In 2022, Canada extended copyright protection from 50 years after the death of the creator to 70 years. Consequently, very little will enter Canada’s public domain until 2043. 

Extending copyright by twenty years was a concession Canada made during the 2017-18 Canada-US-Mexico free trade agreement (CUSMA) negotiations. Unfortunately, term extension implementation was lopsided – no additional or expanded user rights were introduced to offset the loss to Canada’s public domain. 

Theoretically, the longer a piece of copyright material is protected, the more revenue the owner stands to collect over time. However, this rarely plays out.  

And, materials that remain moneymakers well beyond a creator’s death are equally rare, usually appearing in the form of blockbuster books, music or films.  

More typically, after only a few years on bookstore shelves, most books are no longer making money. Similarly, a 2020 study found that most music album and track sales fall to nearly zero within one year after their release. 

Protection in perpetuity 

Authors or creators can transfer their ownership of copyright to others. In other words, copyright protection benefits the owner of the work, who may not be its creator.   

Materials that remain marketable beyond the lifetime of a creator often have copyrights that were transferred from the creator to a production company. Canadian rock legend Bryan Adams argues that copyright should automatically transfer back to the creator after 25 years so they may benefit from any continued use of their work.  

Copyright doesn’t just protect some things; in Canada it is automatically extended to everything.  

Under Canada’s updated copyright act, that photograph you just posted to social media will be protected well into the 22nd century. Will your estate or your children care or even be aware that they’ve inherited your copyrights?   

Check out our in-depth series from the archives on reforming Canadian copyright  

Longer copyright terms present the added challenge of locating copyright owners to ask permission to use their material. Often these materials end up orphaned – inaccessible to anyone seeking to legally use them in some new way.  

Cultural heritage organizations like libraries and archives currently hold significant stores of content created by local communities that tell Canadians’ stories going back decades.  

The copyright owners of these works are often unknown or unreachable. Digitizing and distributing these works would infringe copyright and break the law.  

Often, such treasures remain locked down in libraries and archives until librarians and archivists are confident that copyright has expired. In some cases, out of an abundance of caution and fear of legal repercussions, they wait more than a century after having been created.  

Opening communal benefits 

Why should Canadians have to wait well over a century to access our community voices and stories? 

In response to this dilemma Canadian cultural heritage organizations have been advocating for an amendment to the Copyright Act to make available these otherwise trapped orphan works.  

Group of Seven painter A.Y. Jackson died in 1974. Until two years ago, we expected his paintings to be entering the public domain this year. However, under the new rule, copyright will not expire in his art works until 2045 – a century after he created most of his paintings.  

Were Jackson’s art in the public domain, images could be freely included in documentaries, books, research articles or presentations. Because they are not in the public domain, anyone wishing to use them must first determine who owns Jackson’s estate, request permission, and cross their fingers. 

Canadians deserve a Copyright Act that doesn’t lock up all cultural materials for a century or more after their creation, including works with no remaining commercial value.  

And for what? Copyright laws that continually expand copyright present little or no benefit to either their creators or those wishing to use them.  

Until it is changed, Canada’s Copyright Act will continue to act as a barbed wire fence between Canadians and their own cultural heritage.