Emily Xiang is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

Huge changes have come to the Canadian Copyright Act. In late November of 2022, an was signed to fix December 30, 2022 as the date on which Division 16 of Part 5 of the Copyright Act came into force. The amendments come by way of legislation passed back in June 2022  to increase the term of copyright protection from 50 years to 70 years following the end of the calendar year of the author’s death.

The new changes are in line with Canada’s treaty obligations under the , which came into force on July 1st, 2020. Under CUSMA, the country made a commitment to extend its general term of copyright protection from 50 years to 70 years following the life of the author, with a transition period lasting until the end of 2022 to implement the changes. The extension brings Canada , including with many of its major trading partners, such as the United States, the United Kingdom, and the European Union. This extension will hopefully generate new opportunities for investment and commerce for Canada’s creative industries.

Following CUSMA, the Government of Canada commenced in early 2021 on the implications of the proposed copyright term extension. The consultations were met with mixed reactions. Many believed that the extended term of protection would provide rights holders with , thereby incentivizing creative production. On the other hand, the proposed amendments also garnered significant pushback, particularly from user-oriented groups, as the extended term would mean further restriction on public access. An overview of the differing views from the perspective of the educational publishing industry in particular can be found in .��

Following the public consultations, Prime Minister Justin Trudeau also addressed mandate letters to the Ministers of and of , requesting that the departments work together to amend the Copyright Act in order to further protect artists, creators, and copyright holders. A commitment to making the legislative changes was also included in the .

With the changes to the Copyright Act coming into effect, there is more clarity as to what works might be encompassed by the new amendments. According to , the extended term of protection will not apply to works that already entered the public domain before the amendments come into force. Works with copyright set to expire on or before December 30, 2022 will not be privy to the extended protection term. In other words, the extension will not operate retroactively. On the other hand, copyright in a work that is set to expire on or after December 31, 2022 should benefit from an additional 20 years of protection.��

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Although the Trudeau government focused much of its attention in the recent federal budget with the continuing fight against the COVID-19 pandemic, buried deep in the document were promises to tackle data and intellectual property (IP) issues which it says will be key as a digital economy becomes the norm for many.

With more and more of people’s lives happening online — and the pandemic forcing individuals to move their workstations from gleaming towers to cozy home offices — the federal government is saying a digital economy that serves and protects Canadian business is vital for long-term growth, but Canadians must be able to trust that their data is protected and being used responsibly.

To that end, the federal Liberals are promising to create an office of data commissioner aimed at informing government and business approaches to data-driven issues to help protect people’s personal data and to encourage innovation in the digital marketplace.

Pina D’Agostino, founder and director of the Intellectual Property Law and Technology Program at Osgoode Hall Law School (IP Osgoode), said appointing a data commissioner is “basically signalling the importance of data as a new currency.”

“Ownership and governance issues of data are not privacy issues, so it would be beyond the mandate of a privacy commissioner,” she said. “The signal is that it’s not just about privacy that matters, there are other social implications — what they speak about in artificial intelligence is that data can tend to privilege certain demographic groups in society, so we want to ensure that doesn’t happen and someone like a data commissioner would be mindful of that.”

Marc Yu, a privacy and data management lawyer with Edmonton’s Field Law, said the concept of a data commissioner is “interesting” for Canada.

“It is a fairly short description in the budget as to what the data commissioner is intended to do, so it is likely there will be further details once the commissioner’s office is developed in the future and becomes operational,” he said. “I would think one of the data commissioner’s roles would be to streamline information sharing amongst the public sector, so amongst the federal agencies and federal departments we would have a clearer process in terms of how data might be shared between these different agencies and departments to help them further their objectives and functions in this digital environment, while also maintaining the personal privacy of individuals to whom this information belongs.”

In addition to creating a data commissioner’s office the budget also contains several direct investments in intellectual property, building on the national intellectual property strategy announced in the government’s 2018 fiscal plan. Ottawa is promising to establish ElevateIP, a program to help accelerators and incubators provide startups with access to expert intellectual property services, and allow companies to expense the cost of some investments in digital and IP assets.

These initiatives would be complemented by a strategic intellectual property program review, which would be a broad assessment of intellectual property provisions in Canada’s innovation and science programming, from basic research to near-commercial projects.

D’Agostino said the funding is welcome because the costs associated with many intellectual property matters, such as filing patents, are very high. And she noted a setting up a review “really speaks to the issues which we have seen in the IP system.”

“It is not useful to have siloed approach — we have a Patent Act, a Copyright Act and a Trademark Act that don’t speak to one another and at the same time develop polices in isolation,” she said. “We need to look at all of them and how they benefit innovation and science generally because they all work together, and ensuring there is no siloing and how the laws and the programs we have can really benefit research commercialization and ultimately innovation for Canada.”

More information on the federal budget can be found .

If you have any information, story ideas or news tips for please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

Ian Burns is a Digital Reporter for The Lawyer's Daily.

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