What Canadian Librarians Need to Know About Foreign Copyright

Navigating the Copyright Globe

In the pre-Internet days, global copyright management included photocopying an article in a Canadian office and mailing or faxing it to an office in London, England. With the Internet, enterprises are faced with a myriad of new copyright issues from posting an audio recording on its Website, to accessing from abroad a licensed database, to dealing with rights such as moral rights, which greatly vary from country-to-country.

Keeping up with technology is difficult enough, so where does a librarian begin grappling with global copyright issues? First, it is important to know as much as possible about Canadian copyright law. And definitely know the following rule of thumb: Your own country’s (i.e., Canada’s) copyright law will continue to govern the majority of your copyright use issues.

Second, you should be aware that copyright laws vary from country-to-country. Even a country as close as the U.S. has very different copyright laws than Canada. For example, the duration of copyright protection is 20 years longer in the U.S. than in Canada; moral rights protection is much stronger in Canada than in the U.S.; and the U.S. fair use doctrine does not exist in Canada (though Canada has fair dealing.)

International copyright law courseNo International Copyright Law

Third, you should understand that there is no such thing as international copyright law. There are copyright treaties (the leading one is the Berne Convention, www.wipo.org), however it is up to Berne member countries (169 at the current time), to amend their laws to meet the minimum standards required from member countries.

As an example of how Berne works, Berne provides a minimum protection of 50 years from the author’s death. So many countries (Canada included) protects copyright works for life of the author plus 50 years after his death. However, countries are free to protect for a longer period of time. The U.S. and European Union countries, amongst others, protect copyright works for the life of the author plus 70 years after his death. This means that if you use a copyright-protected work in the U.S., you will have to clear the copyright in the work if the author has been not been dead for 70 years. However, if you use the same work in Canada, you may freely use the work if the author has been dead for 50 years. However, if you are using that work on a Web site accessible around the world (and following the rule that you apply the law of the country where the work is being used), even if you are located in Canada, you would clear the rights for life-plus-70 to “cover yourself” for access from the U.S. and other countries with the longer duration of copyright protection.

License Agreements

In many circumstances, your license agreements for digital content (such as databases and periodicals) will govern terms and conditions for using such content. The Authorized Users clause may state that employees in your Canadian library or office may use the licensed content, or it may allow those same Canadian employees to access the content from outside of Canada. Also, Authorized Users may extend to content users in other countries. Check your existing licenses, and keep these issues in mind when negotiating future licenses.

Also important from a global perspective are the governing law and dispute resolution clauses in your licenses. These clauses set out what province and country laws will govern the interpretation of the contract (should that be necessary), where any agreed upon mediation/arbitration may take place, and in what jurisdiction any litigation would take place. Keep in mind that although litigation between content owners and libraries is rare, your licenses do and should address such a possibility. It is always best for the governing law, jurisdiction for any mediation/arbitration, and litigation, to take place in your jurisdiction, as your lawyers are likely more familiar with that law, and it would like be less expensive to resolve such disputes without paying for travel and taking the time to travel for that purpose.

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