Leaving Neverland and finding the public domain: What happens when copyright expires?

6 minute read
09 January 2024

January 1 is a day that most people associate with resolutions, gym membership renewals and taking down holiday decorations. But for those of us who work in the arts and entertainment space, we know January 1 is "public domain day" – the day of the year when some previously copyrighted works become free to use without permission. 

So, in honour of public domain day, we take this opportunity to examine what happens when copyright expires and why Mickey Mouse and Peter Pan may start to look a little different these days.

Copyright protection

Generally speaking, copyright protection is automatically afforded to an original work the moment it is created. Copyright protects original expressions rather than ideas. When a work is protected by copyright, it cannot (subject to certain "fair use" exceptions) be altered or exploited without the owner's authorization. This is why, until last year, Winnie the Pooh was only depicted as the happy-go-lucky, pant-less friend of Christopher Robin, i.e. the way the owner of the Pooh copyright wanted it. 

As with most intellectual property rights, the intention behind copyright laws is to balance competing interests: on the one hand, giving copyright creators a legal stake in their creations, and, on the other hand, permitting the public to build off of existing works.   

As a result of commitments made under the United States-Mexico-Canada Agreement (the USMCA), Canada recently implemented amendments to the Copyright Act to extend the term of copyright protection for literary, dramatic, musical, and artistic works. These amendments came into force on Dec. 30, 2022, and as a result, in Canada, the term of copyright protection for most works has been increased from 50 years to 70 years plus the life of the creator. This is also the case in the United States, European Union countries and in many others, subject to slight variations.  

The general rule is that the seventy-year period begins on January 1 following the death of the creator; however, there are exceptions. For example, for a work made for hire that is created for a company in the United States will receive copyright protection for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

This concept does not exist in Canada. Instead, the duration of the copyright in Canada remains based on the author's life plus 70 years, regardless of whether the work was created in the context of employment or a contract for service.  

Into the public domain  

Once the term of copyright protection expires, the work will enter into the public domain. In Canada, the United States, and many other countries, works only enter into the public domain on January 1 each year.

Last year, A.A. Milne's classic short-story collection, Winnie-the-Pooh, entered the public domain in the United States, which opened the door to anyone reprinting the original without seeking permission. This free-for-all is not limited to reproduction of works in the public domain. Subject to the limitations noted below, works whose copyright terms have expired can be adapted, altered and remixed. This explains – to the extent it could ever possibly be explained – why a blood-thirsty Winnie the Pooh was seen on the big screen last year hunting down Christopher Robin. 

On January 1 of this year, Steamboat Willie, the cartoon short film which contained the first portrayal of Mickey Mouse, also entered into the public domain in the United States, along with J.M. Barrie's stage play Peter Pan, or The Boy Who Wouldn't Grow Up and the novel All Quiet on the Western Front. The release of the original Mickey Mouse into the public domain has already led to the creation of movie trailers depicting a very scary killer Mickey Mouse (evidently, the public domain can be a very scary place!).   

Proceed with caution; you may not be out of the Hundred Acre Wood just yet 

As copyright laws vary between different countries, the same work may be treated differently in different jurisdictions. Typically, the copyright law of the country you are in applies to uses of a work within that country, even if that work was created in a different country or by a national of a different country.

For example, in Canada, A.A. Milne's Winnie-the-Pooh entered the public domain in 2007, followed by The House at Pooh Corner in 2008. This is because the term of copyright protection in Canada was still 50 years plus the life of the author at the time that the copyright protection expired. As a result, these two A.A. Milne books entered the public domain in Canada 16 years earlier than they did in the United States, where their copyright protection expired in 2023 and 2024, respectively.   

A derivative work, which is a work based on or derived from one or more already existing works, is entitled to separate copyright protection. This means that while copyright in the original version may have expired, other derivative versions of the work may still be entitled to copyright protection. For example, Mickey Mouse as originally portrayed in Steamboat Willie has entered into the public domain in the United States, but later versions of Mickey Mouse are still protected by copyright.  

Translations are also a common example of derivative works. Although A.A. Milne's The House at the Pooh Corner entered into the public domain in the United States this year, many translated versions that were published later on remain protected by copyright in the United States.  

Users looking to rely on works in the public domain should be careful because the determination of whether a work is subject to copyright protection can be complex. Furthermore, copyright is but one type of protection; trademark registrations and other intellectual property rights may also limit how a work can be used.  It would be prudent to seek legal advice prior to using copyrighted works, including those which may seem to have already entered into the public domain. 

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