Reversionary Copyright

The long arm of the dead

Reversionary Copyright

That massive estate file occupying volumes of space in your office has finally come to an end. The quirky legacies have been interpreted and fulfilled, the assets liquidated or distributed and the taxes paid. The accounts have balanced to the penny and been passed, the final bill has been rendered and it is now time to close the file for storage.

Not so fast. Have all of the assets been dealt with? With the explosion of blogs, selfies, and print on demand and vanity publishing services in the digital era, there has been a proliferation of photos, books, articles and other communications being generated and propelled with the use of the Internet. All of these may be considered “works” under the Copyright Act if they meet a minimal threshold of originality. If these works are subject to copyright protection and the rights granted by this Act, they constitute an asset, even if of questionable value. Have these assets been addressed in the estate administration?

More problematic is Section 14(1) of the Copyright Act, a legal boomerang. It provides that an author of a work that is subject to copyright, if the first owner, cannot give or assign such rights away in full during her or his lifetime. The last 25 years of the copyright term of each work, which in Canada presently runs for the life of the author plus 50 years, “devolves on” the author’s legal representative and reverts to and becomes the property of her or his estate. Even if the author and owner of a work has transferred, assigned or licensed a work during his lifetime, he or she only has the power and right by reason of Section 14(1) of the Act to give away such rights for the period of his or her lifetime plus 25 years. For the final 25 years of the term, such rights kick back to the creator’s estate and heirs.

Does this reversionary provision apply to all works subject to copyright? Section 14(1) only applies to those works which are not part of a collective enterprise or where, under the provisions of the Copyright Act, the author is also the first owner of the work. If the work was created within the scope of a formal employment relationship, the employer will be the first owner (Section 13[3]). However, the reversionary provision will apply to any work created by an author independently or for a third party under a contract for services or within a formal employment relationship where copyright has been reserved to the employee. As more conventional businesses shed employees and go to temporary workforces, outsourcing and independent suppliers, more works may become subject to this reversionary right.

Can an author contract out of Section 14(1) and transfer such reversionary rights? No – the Act expressly provides that “no assignment… or grant of any interest... is operative... to vest rights” beyond the initial post-mortem 25-year period and any agreement purporting to transfer such rights is “void.” The statute overrides any written agreement or license to the contrary with one exception. An author may devise such rights by will and transfer them to a specific beneficiary.

While many “works” to which this submarine proviso apply will have no value or significance, there are many professionals to whom it will be relevant, including architects, engineers, musicians, academics, amateur historians or photographers and it may be another item to add to your wills or estates checklist of matters to address.