What happens to the copyright of your works when you die? After a lifetime of creative output, artists, authors, musicians and other creators alike may wish to think about the legacy they are leaving behind.
In British Columbia, the Wills, Estates and Succession Act (“WESA”) governs how wills are made and how estates are administered. However, for creatives, it is not enough to consider only WESA when making a will. It is also important to consider how legislation such as the federal Copyright Act affects the ownership of your life’s work.
Copyright Basics
Under Canadian law, copyright protects original literary, dramatic, musical, and artistic works that are in a fixed material form – such as written or recorded content. The copyright owner has the sole right to reproduce, perform, and publish the work.
As of December 30, 2022, copyright in Canada lasts for the author’s lifetime plus 70 years. After that, the work enters the public domain.
The Hidden Twist: Reversionary Interest
What many creators don’t realize is that 25 years after the author’s death, the copyright automatically reverts to the author’s estate, thereby nullifying any assignments and grants made during the author’s life (except those made by will).
This reversion of copyright is automatic, cannot be waived or reassigned during life, and may significantly affect posthumous royalties and licensing arrangements.
The reversionary rule does not apply if:
- the author was not the first copyright owner (e.g., employee-created works);
- the work is part of a collective work (a compilation of multiple authors); or
- the license to publish is related to a collective work.
Planning for the Reversion of Copyright
A valid will represents the only opportunity for an author to have complete control over what happens to their copyright. If an author wishes for a specific assignment or grant of their copyright after their death, it is important to provide for such a transfer of copyright in their will.
Authors may also consider appointing a separate “copyright executor” who is familiar with the author’s industry, as the reversionary interest gives the author’s estate the opportunity to renegotiate the terms of any agreements surrounding their copyrighted work.
Administering Estates with Reversionary Interests
When administering estates that will receive a reversion of copyright, an executor may enter into agreements to transfer the reversionary interest anytime after the author’s death. This means that rather than waiting for 25 years after the author’s death, an executor may choose to deal with the reversionary interest sooner, while the rest of the estate is being administered.
Any subsequent deal the estate enters into regarding the reverted copyright is nonetheless subject to the statutory term of copyright protection. The work will enjoy copyright protection for another 45 years, totaling 70 years from the author’s death, before it enters the public domain.
If you have any questions about copyrighted work in the context of estate planning or estate administration, please contact the authors or a member of our Wills, Estates + Trusts Group.
Subscribe to RSS Feed