"what matters most is how well you walk through the fire"
- Charles Bukowski (1920-1994)

In 2020, the focus is on alternative modes of educational delivery in the summer and fall terms. One (of the seemingly countless) implications is the simple fact that most students will not be on campus, and therefore away from libraries and campus bookstores. That means, course content will need to be made available through alternative methods too.

In this context, ensuring copyright compliance is no less important than it was pre-COVID, there will just be new situations to address and solutions to find.

In this series of articles, we will be shining a light on copyright law matters to assist faculty members, the copyright professionals within institutions, and students understand their rights as authors and as users.

First up, section 14 of the Copyright Act-the little known 25 year reversion rule.

Complying with copyright law in the absence of (and sometimes even with) a collective license can lead down many fascinating rabbit-holes. Chief amongst them is the pursuit of what some call a "transactional clearance", which is another way of describing a license or permission from the copyright owner or exclusive licensee.

Let's say that a faculty member wishes to distribute several full poems written by Charles Bukowski from one of his published collections. Let's also say the proposed use falls outside of the applicable user rights and that no e-books or digital licensed materials already purchased by the institution are available. The next step is usually to attempt to obtain permission from the copyright owner or the exclusive licensee.

That would normally lead one to research the publisher(s) of the work in Canada. That itself may lead down rabbit-holes if the original publisher is defunct, but it may ultimately lead to an operating publishing house.

The publishing house may be willing to discuss a license, or it may be that they granted administration rights for such requests in Canada to an entity such as the Copyright Clearance Centre or Access Copyright, in which case the quest continues.

But here's the rub - Charles Bukowski passed away in 1994. That's more than 25 years ago.

Why does that matter? His works are still well within copyright in Canada. Yes, but thanks to Section 14 of the Copyright Act, the Canadian rights granted by Charles to his publisher have likely* automatically expired, and the reversionary interest in his works have devolved to his legal representatives as part of his estate.

*okay, we're lawyers and there are important qualifications, such as that the reversion does not generally apply to "collective works", so it may not apply to poems published in an anthology of poems written by different poets. The reversionary interest also only applies where an author is the first owner of copyright (i.e. not for something written in an employment or other situation where someone else owns the copyright to start) and it does not apply to any grants of rights given by the will of the author.

And to be clear, the reversionary interest could also apply in cases of collective and digital licenses, and should be kept in mind.

Does that mean the quest continues to Mr. Bukowski's legal representatives? Possibly, but a question to be asked to the publisher, collective or digital licensor now is whether they have perhaps re-secured their rights from the author's legal representatives. Maybe they have... and if they don't know what you're talking about, the journey probably continues.

Two additional notes about the international scene, and about possible changes in Canada:

  • The reversion of copyright to the author's estate is not a concept known in Europe. Copyright law in the United States does have a similar concept, though the timelines are different and the law requires a notice for the right to be invoked (something that has been suggested for Canada - see below)-as such, this automatic reversion may not be well-known or understood by publishers in the U.S. or Europe.
  • The report on the Statutory Review of the Copyright Act completed in 2019 contained two recommendations that are directly relevant to this reversionary right. These, if enacted, would bring reversion closer to U.S. law by requiring a notice. You can read more about that Statutory Review here and, for easy reference the complete list of recommendations can be found here. The two relevant recommendations are:
    Recommendation 7
    That the Government of Canada introduce legislation amending the Copyright Act to provide that a reversion of copyright under section 14(1) of the Act cannot take effect earlier than 10 years following the registration of a notification to exercise the reversion.
    Recommendation 8
    That the Government of Canada introduce legislation amending the Copyright Act to provide creators a non-assignable right to terminate any transfer of an exclusive right no earlier than 25 years after the execution of the transfer, and that this termination right extinguish itself five years after it becomes available, take effect only five years after the creator notifies their intent to exercise the right, and that the notice be subject to registration.
    No word yet on whether these, or any other recommendations from the Statutory Review, are likely to be advanced and if so, what form they'll take.

If you have questions or would like to discuss the operation of Section 14 of the Canadian Copyright Act, or Canadian copyright law generally, please contact the authors.

Article originally published on 21 May 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.