Canadian Heritage has set, as a long-term goal in copyright “reform”, “clarifying and simplifying the [Copyright] Act”.

This “long-term” goal can’t come quickly enough.

Section 7 of the Copyright Act, as it currently stands, provides:

7. (1) Subject to subsection (2), in the case of a literary, dramatic or musical work, or an engraving, in which copyright subsists at the date of the death of the author or, in the case of a work of joint authorship, at or immediately before the date of the death of the author who dies last, but which has not been published or, in the case of a lecture or a dramatic or musical work, been performed in public or communicated to the public by telecommunication, before that date, copyright shall subsist until publication, or performance in public or communication to the public by telecommunication, whichever may first happen, for the remainder of the calendar year of the publication or of the performance in public or communication to the public by telecommunication, as the case may be, and for a period of fifty years following the end of that calendar year.

    (2) Subsection (1) applies only where the work in question was published or performed in public or communicated to the public by telecommunication, as the case may be, before the coming into force of this section.

    (3) Where

(a) a work has not, at the coming into force of this section, been published or performed in public or communicated to the public by telecommunication,
(b) subsection (1) would apply to that work if it had been published or performed in public or communicated to the public by telecommunication before the coming into force of this section, and
(c) the relevant death referred to in subsection (1) occurred during the period of fifty years immediately before the coming into force of this section,

copyright shall subsist in the work for the remainder of the calendar year in which this section comes into force and for a period of fifty years following the end of that calendar year, whether or not the work is published or performed in public or communicated to the public by telecommunication after the coming into force of this section.

    (4) Where

(a) a work has not, at the coming into force of this section, been published or performed in public or communicated to the public by telecommunication,
(b) subsection (1) would apply to that work if it had been published or performed in public or communicated to the public by telecommunication before the coming into force of this section, and
(c) the relevant death referred to in subsection (1) occurred more than fifty years before the coming into force of this section,

copyright shall subsist in the work for the remainder of the calendar year in which this section comes into force and for a period of five years following the end of that calendar year, whether or not the work is published or performed in public or communicated to the public by telecommunication after the coming into force of this section.

You got that? Don’t worry; there is an army of copyright experts, populating the shelves of your neighbourhood law library, who can clarify and simplify the meaning of s. 7 for you. Pursuant to s. 29.1 of the Copyright Act, let’s take a look at what they have to say.

John McKeown, writing as Fox on Copyright, 4th Ed., Carswell, 2003, comments:

Subsection 7(3) applies where the relevant death occurred during the period immediately before December 31, 1998. Where a work was not published or performed in public or communicated to the public by telecommunication before December 31, 1998, copyright shall subsist in the work for a period of 50 years, whether or not the work is published or performed in public or communicated to the public after December 31, 1998.

Subsection 7(4) applies where the relevant death occurred more than 50 years before December 31, 1998. Where a work was not published or performed in public or communicated to the public by telecommunication before December 31, 1998, copyright shall subsist in the work for a period of 5 years, whether or not the work is published or performed in public or communicated to the public by telecommunication after December 31, 1998.

Mmm…’kay…. McKeown as Fox doesn’t quite get it wrong… but that’s not exactly the helpfullest of glosses on an abysmally poorly-drafted clause. It’s barely a gloss at all.

David Vaver gets it flat-out wrong. In his Copyright Law, Irwin, “Essentials of Canadian Law” series, 2000, he states:

For an unexploited work whose author died less than fifty years before 1999, copyright will expire fifty years from 1999 – on 31 December 2049 – whether or whenever the work is later exploited… For an unexploited work whose author died more than fifty years before proclamation, copyright will expire at the end of 31 December 2004, whether or whenever the work is exploited.

Robert T.Hughes, in Copyright Legislation and Commentary, LexisNexis Butterworths, 2004/2005 edition, fares little better:

Posthumous works are tricky, because the provisions of section 7 were amended in 1993 [sic] and care should be taken to read them if a work was published posthumously before 1997. Consequently, where an author died before 1993, no copyright remains. At present, the term of copyright in works published posthumously or not, is the life of author plus 50 years to the end of the calendar year.

Sunny Handa, Copyright Law in Canada, Butterworths, 2002, unhelpfully informs us:

If a work was published, performed, or communicated after January 1, 1994, and its author died between January 1, 1944 and January 1, 1994, the term of copyright protection in the work will endure until December 31, 2044. If the author died before the publication of the work and the work was published, performed or communicated before 1994, copyright protection will endure until the end of that calendar year and 50 years thereafter. If a work was not published in 1994 and its author died before 1944 copyright subsisted in the work until December 31, 1998, whether or not the work has since been published, performed or communicated. If the author dies after 1994 but before publication of the work, copyright protection will endure for the remainder of the calendar year in which the author died and 50 years thereafter.

On the other hand, Jean Dryden really does demystify what mystified everyone else, in her Demystifying Copyright: A Researcher’s Guide to Copyright in Canadian Libraries and Archives, Canadian Library Association, 2001:

The 1997 amendments to the Copyright Act put an end to perpetual copyright in posthumous works. However, to be fair to those copyright owners who had perpetual copyright protection under the old law, the rules could not change overnight. A complex series of transitional rules base on the publication date (if any) and the death date of the author are used.... The date of 31 December 1998 is a key part of the transitional rules simply because the amendments relating to posthumous works came into force on that date.

She then sets out a table similar to that on page 2 of Wanda Noel’s Copyright Protection in Unpublished Works: Final Report, which led to the now-abandoned attempt to amend s. 7 of the Copyright Act.

Similarly, Lesley Ellen Harris, in Canadian Copyright Law, McGraw-Hill Ryerson, 2001, also gets the section right:

In the case of an author who died with an unexploited work that her heirs or estate exploited prior to December 31, 1998, the work would be protected for fifty years from the date it is exploited. Where an author died on or after December 31, 1948 and whose works remained unexploited as of December 31, 1998, the work is protected until December 31, 2048. Finally, in the case of an author who died before December 31, 1948 with an unexploited work that remained unexploited as of December 31, 1998, the work would be protected until December 31, 2003.

So, out of six leading experts on Canadian copyright law, one sidesteps the question of what s. 7 means in the post C-32 universe; three get it dead wrong; and just two get it right.

Can there be any doubt that Canada needs a hefty dose of  “clarification and simplification”? Or that that dose cannot possibly come quickly enough?