Framework The federal and provincial governments have established a complex regulatory scheme to govern the fishing industry in Atlantic Canada and elsewhere. The principal statute governing the industry is the Fisheries Act. Under the Act, the federal government has created more than two dozen sets of regulations. The Minister of the Department of Fisheries and […]read more
Once After a Lifetime: An Author’s Life, Death and Copyright Reversionary Interests in Canada
Canadian copyright law is primarily governed by the federal Copyright Act, R.S.C. 1985, c. C-42 (the “Act”). The Act, among other things, sets-out the rights covered by copyright, including the length of such rights and how such rights may be licensed, transferred or waived. Indeed, the Act provides that (emphasis added):
13. (4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence […]
On its face, the Act would seem to provide that a copyright owner can ‘slice and dice’ the bundle of copyrights in a work in any manner that she, he or it deem fit. Indeed, as assignments and licenses are typically commercial transactions and copyright is a valuable (intangible) asset, this would appear to be self-evident and, for the most part, the copyright owner does have unfettered freedom to deal with copyright.
Assignees and licensees of copyright in Canada, however, need to keep in mind an oft forgotten aspect of the Act: the author’s reversionary interest in Section 141:
14. (1) Where the author of a work is the first owner of the copyright therein, no assignment of the copyright and no grant of any interest therein, made by him, otherwise than by will, after June 4, 1921, is operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal representatives as part of the estate of the author, and any agreement entered into by the author as to the disposition of such reversionary interest is void.
(2) Nothing in subsection (1) shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.
The reversionary interest does not apply in all cases and only where an author is also the ‘first owner’ of copyright. For example, if an author was self-employed, or did not create the work in the course of employment, the author would typically be the first owner of copyright in that work; in contrast, when an author creates a work as part of his or her course of employment, the employer is generally the first owner of copyright and so the reversionary interest does not operate. The reversionary interest also does not operate where the author is the first owner, but the grant of interest (i.e. assignment or license) was by means of the author’s will or was in respect of a collective work.
Copyright in a work (generally) lasts for the life of the author, the remainder of the calendar year in which the author dies and for an additional period of fifty years in Canada2. Where the reversion provisions of the Act apply, any (Canadian) rights granted (including rights purporting to cover the full term of copyright) by the author during his or her lifetime are only valid until twenty-five years after the death of the author; they then revert to the author’s estate. As copyright generally lasts for some twenty-five more years after this, there is a significant period of copyright that reverts back to the author’s estate. It is also important to note that this reversion occurs automatically.
In practice, for the majority of original works, this is not a significant issue: many works do not have practical commercial value twenty-five years after the author has died and others may not have the author being a first owner. Certainly, however, there are cases where a work has considerable value years after an author’s death and indeed some works have become much more valuable in the years after the author died.
Where Canadian copyright is involved, it is therefore important for assignees and (long-term) licensees to at least consider the issue of the author’s reversionary interest and whether (and how) it may impact them, lest this forgotten area of the law come back to haunt from beyond the grave…
For questions on Canadian copyright law, including acquiring, registering, transferring or licensing copyrights, or other aspects of Canadian intellectual property law, please contact Athar Malik, Kristen Murphy, or another member of Cox & Palmer’s Intellectual Property & Technology team.
1 The special case of reversionary rights for pre-1924 works as provided under s. 60(2) of the Act is not considered in this article, as that applies to a smaller and smaller sub-set of work.
2 See s. 6 of the Act.