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Impact of the “New NAFTA” on the duration of your Performer’s Copyright

After several years of negotiation, the Canada-United States-Mexico Agreement (CUSMA), which replaces the North American Free Trade Agreement (better known as NAFTA), came into effect on July 1, 2020.

Some of the changes that have been made to NAFTA have a direct positive impact on your copyright as a performing artist and more specifically on the length of copyright protection that applies to your performances:

  • the term of your copyright protection on your fixed and published performances will increase from 70 to 75 years
  • the term of your copyright protection on your fixed but unpublished performances will increase from 50 to 70 years.

The maximum term of protection of 100 years from the date on which your performer’s performance is fixed will continue to apply if it is published only years later (see example 4 below and its illustration).

However, this will not ensure that any copyright on your performances that were already extinguished under previous versions of the Copyright Act will be revived. If your performance was already in the public domain (which is the case for all performances prior to 1965), they will remain so despite the new terms.

Here are some examples of the practical applications of the changes that will be made to the Copyright Act.

  • Example # 1: a performance fixed and published in 1963

This performance is no longer protected and is now in the public domain. Indeed, even though it was fixed and published only 57 years ago, it had already entered the public domain in 2013 under older versions of the Copyright Act. The extinguished copyright will not be revived.

  • Example # 2: a performance fixed in 1963 and published only in 2021

Once again, this performance cannot benefit from the new term of copyright protection because the copyright on the fixed performance was already extinguished at the time of publication under the old version of the Copyright Act. The fact that it was published years later does not affect the original copyright on the performance.

  • Example # 3: a performance fixed and published in 1967

Before the changes were made by CUSMA, this performance would have been protected until 2037 (70 years). Given the CUSMA, this performance is now protected until 2042 (75 years).

  • Example #4: a performance fixed in 1973 and published only in 2025

This performance will benefit from the protection of 70 years from the fixation date until the date of publication and would then benefit from the term of protection of 75 years from the date of publication if it were not for the maximum ceiling of 100 years which is imposed from the fixation date. This performance will therefore be protected only until 2073.

  • Illustration of example 4

While several performers will not be able to benefit from the extended term of copyright protection on their performances, this new measure will nevertheless benefit their heirs and entitle them to collect the royalties linked to the performances for a longer period of time.