In the world of Canadian copyright, January 1st of each year is "public domain day," marking the annual addition of works into Canada's public domain. The term of copyright in Canada for published literary and artistic works is normally the life of the author or artist plus 50 years. So, for all the authors and artists who died in 1967, their published copyright-protected literary and artistic works will enter the public domain in Canada on January 1, 2018.
The authors and artists whose published literary and artistic works will enter Canada's public domain on January 1st include: Woody Guthrie, Edward Hopper, Langston Hughes, Carson McCullers, Dorothy Parker, and Alice B. Toklas.
Note that under Canadian copyright law, the terms of copyright protection for sound recordings and photographic works are often different from the term of protection for literary and artistic works. For example, the term of copyright protection for sound recordings is determined based on the date the recording was made and the date it was published, not on the date of the artist's death.
What do we mean when we say that a work is in the public domain? In the context of copyright, the public domain commonly refers to works that would normally be subject to copyright (i.e., "works" under the Copyright ActCopyright Act), but where that protection has expired or been waived. When a work has entered the public domain in Canada, there are no restrictions or requirements under copyright law that limit how that work can be used in Canada. The work can be used by anyone, for any purpose, without restriction.
Despite the fact that a work in the public domain can be used for any purpose and without restriction under copyright law, in some cases there may be other legal limitations on the use of a work. For example, if the work is a photograph that includes an identifiable person, then, once that photograph enters the public domain, although there is no restriction under copyright law to limit the use of the photograph, there might still be restrictions under privacy rights, or under the right of publicity, that limit how the photograph can be used.
As mentioned at the outset, the term of copyright in Canada for literary and artistic works is normally the life of the author plus 50 years. This is the minimum term that is permitted under the Berne Convention, a major international copyright treaty of which Canada is a signatory. The term of copyright in the United States and much of Europe is the life of the author plus 70 years, and there has been pressure on Canada to extend its term of copyright to make it consistent with these other nations. Most recently, such a term extension had been included in the Trans-Pacific Partnership (TPP) agreement, which was never implemented. A term extension may also feature in the re-negotiation of NAFTA.
An extension to the term of copyright protection might be reasonable if there were a demonstrable public benefit from it. It is the perceived benefits of copyright protection that have given rise to copyright statutes. The first of these, the Statute of Anne in 1710, states its purpose to be "for the Encouragement of Learned Men to Compose and Write useful Books". In short, the existence of copyright protection benefits the public to the extent that it encourages the creation and publication of new works. Copyright law attempts to serve the public interest by balancing the reasonable interests creators have in deriving the economic benefit from their works with the interests of users in accessing, drawing from and building on those works.
If the central purpose of copyright protection is to encourage authors and artists to create works that might benefit the public, largely by allowing those creators a limited but exclusive right to commercially benefit from the use of their works, then it is not clear how creators would be further encouraged to create more or better works by the extension of the term of protection for the commercial rights in their works from 50 years after their deaths to 70 years after their deaths. However, there may be financial benefits for corporations from such term extensions.
Copyright protection applies to ALL literary and artistic works from the moment they are created. The vast majority of these works will never have any commercial value, and, for that very small percentage of works that do have commercial value, only a very small minority of those will have commercial value that endures beyond, say, 50 years. However, for the publishers who hold or have licensed the rights to one or more of the works included in that very small minority of a very small percentage, there is enough money still to be made to prompt them to push to extend the copyright term. When the copyright term in the United States was extended in 1998, it was widely noted that The Walt Disney Company was a strong proponent of the extension, at least in part to delay Mickey Mouse's entry into the public domain.
Even given the current length of the term of copyright protection, most books go out of print long before the copyright in the book has expired. Someone interested in using an out-of-print book in a way that requires the permission of the copyright holder may face an uphill battle in seeking that permission. In cases of old and obscure out-of-print books, the chain of rights-holders can become difficult to track, as small publishers go out of business or are acquired by larger publishing houses. While the Copyright Board of Canada does have a process in place for those seeking to use such "orphan works", the process can be time-consuming and discouraging. Any further extension of the copyright term would only increase the number of such orphan works that remain outside the public domain.
It can sometimes be tricky to make such a determination. You may need to find out: the creator of the work; whether the creator has died and, if so, when; the year the work was made; and whether the work was published and, if so, when. With such additional information, there are tools available to assist your determining whether a work has entered, or when it will enter, the public domain. One such tool is the Canadian Public Domain Flowchart that was recently updated by the University of Alberta Copyright Office.
When trying to determine whether a work is in the public domain, there are a few additional things to watch out for. Sometimes there is material that was not part of the original work that has been added to later editions: for instance, books may have acquired introductions, illustrations, or annotations. These additions might have separate copyright protection and not be in the public domain, even though the original work is in the public domain. In such cases, it may be important to clarify the scope and limits of the original work before use. Also, be aware of co-authorship. The copyright term for literary and artistic works is generally linked to the death of the last surviving co-author. As a recent example, consider Anne Frank's Diary of a Young GirlDiary of a Young Girl. Anne Frank died in 1945, so her work would have entered the public domain in most of Europe on January 1, 2016, 70 years after her death. However, before the work entered the public domain, the authorship of the work was "revisited" to include her father, Otto Frank, who died in 1980, as a co-author.
Copyright holders can choose to place works into the public domain before the term of copyright protection for those works expires. The simplest way to do this may be through attaching the Creative Commons Zero (CC0) licence to a work. This licence is a declaration that no rights are reserved in the work under any copyright laws, and thus, effectively, that work is made part of the public domain everywhere.
The public domain is an important part of the balance between creator and user rights that forms the centre of copyright law. While copyright protection is a significant incentive to creators to produce new works, the community of users, which also includes creators, benefit from a large public domain from which all can draw. The public domain is an asset we all share, and its value must be appreciated in order to ensure that its full scope and continued growth are preserved and maintained.
For additional information about copyright at the University of Alberta, check out the Copyright Office website, or email our help desk at copyright@ualberta.ca.
Adrian Sheppard - Director, Copyright Office
Adrian has been the Director of the University of Alberta's Copyright Office since April 2015. One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright. Adrian has an LL.B. from the University of Victoria.
Note: This post is intended to provide information and perspective about copyright issues, but should not be considered as legal advice.