Sharing a border, the 49th parallel, you may think that the copyright laws in Canada and the U.S. are pretty much the same. Think again. The copyright laws are quite different and the application of the laws on each side of the border can result in very different results when using, reproducing and sharing copyright-protected content.
How Copyright Works in Canada and the U.S.
Let’s start with an example. You are based in Canada and reproducing an article written by a U.S. author and published by a U.S. publication. Do you need permission? Under which law do you determine if permission is necessary?
Global copyright law principles guide us to the principle of national treatment – you apply the law where the work is being used.
So back to our example, we apply Canadian copyright law. We look at the Canadian Copyright Act to determine if permission is needed. One of the first questions we address is whether the work is protected by copyright. We apply the copyright duration of life-plus-fifty (or fifty years after the death of the author) under Canadian copyright law rather than the longer duration of life-plus-seventy that exists under the U.S. Copyright Act.
So if the author of the article has been dead for sixty years, the work is in the public domain and you do not have to obtain permission to use the work.
Learn more about U.S. Copyright Law
To continue with this example, the exact same article is being copied in the U.S. We then apply U.S. copyright law and determine that the work is protected by copyright for another ten years. So unless an exception or fair use applies to the situation, then you must obtain copyright permission when using the exact same content in the U.S..
Duration of copyright is only one of the many differences between Canadian and U.S. copyright law.
Learn more about Canadian Copyright Law
Another difference between U.S. and Canadian copyright law relates to the protection of government works. In Canada, federal government works are protected by copyright however U.S. government works do not have copyright protection.
U.S. government works are in the public domain and may be freely used without permission. This applies to any work prepared by an employee of the United States or federal government, created as part of that person’s official duties.
So what happens when U.S. government work is reproduced outside the U.S., is it freely available? The answer would depend on where the work is being reproduced. If a U.S. government document is being photocopied in Canada, you apply the copyright laws of Canada.
This means that in some situations, an unprotected work in the U.S. will be protected in Canada. It also means that you may be in the odd situation of seeking permission to use a U.S. government work in Canada although that work is available for free in the U.S.
To complicate matters, not all U.S. government works are freely available for use by the public.
In some situations, the U.S. government does own copyright in works. The U.S. government may be a copyright owner and may obtain copyrights through an assignment, bequest or other transfer. For example, a work created by an independent contractor such as a consultant, freelance writer or artist, may be assigned to the U.S. government. When a copyright is transferred or assigned to the U.S. government, the government then is a copyright owner.
In addition, the U.S. government may have a license to include copyright-protected material in a work created by or for the government.
In this situation, the copyright owner continues to own the copyright in its material, regardless of the fact that the material is being included in a government work which, as a whole, is not protected by copyright. To reproduce that government work incorporating third party licensed content, you will need permission from that third party copyright owner. Third party content is content owned by someone other than the government.
The explicit moral rights protection that exists in the American Copyright Act (through an amendment made to it by the Visual Artists Rights Act of 1990 (VARA)) applies to only one group of creators – visual artists, or more accurately, those who create “works of visual art.”
The moral rights provision provides the author of a work of visual art the right to claim authorship of that work (i.e., have their name on the work), and to prevent the use of their name as the author of any visual art work which they did not create.
In addition, the author of a work of visual art has the right to prevent the use of their name where the work is distorted, mutilated or otherwise modified in a manner which would be prejudicial to their honor or reputation, and to prevent any destruction of a work of “recognized stature” and any intentional or grossly negligent destruction of that work.
The author has the above rights, may not transfer such rights, and maintains these rights even if he or she is no longer the copyright owner of the work. The author may waive these moral rights by signing a written document to that effect. These moral rights last until December 31st of the year in which the author dies.
In Canada, all authors of all works have moral rights. This means a painting, computer software or even a corporate memorandum. When reproducing or publicly performing any work in Canada – even U.S. works – you need to respect the moral rights of an author.
In Canada, you need to include the author’s name on the work, and not make any changes that may be prejudicial to the honor or reputation of the author, or use that work in association with a product, service, cause or institution in a manner that may harm the reputation of the creator.
These rights may be waived but they cannot be assigned or transferred to another person except upon death of the author. These moral rights last 50 years after the author’s death.
So once again note that works being used in Canada may be entitled to moral rights even if those same works do not have moral rights in the U.S. or even if the moral rights in the U.S. have expired when the author died. Conversely, Canadian authors do not enjoy the same broad moral rights in the U.S. as they do when their works are reproduced in Canada.
Both Canada and the U.S. have exceptions or special provisions for libraries and archives for preservation, interlibrary loan and other specific purposes. The U.S. has the defence of fair use and Canada has fair dealing – both defences that require judgement calls based on the specific circumstances of their situation to determine when they apply.
Registration of a work is not necessary in either country in order to obtain copyright protection though is helpful prior to commencing any court action to enforce one’s rights.
International Copyright Obligations
Both Canada and the U.S. are members of the leading international copyright treaty, the Berne Convention. This means that the two countries are obligated to provide similar copyright protection in their own country. However, as you can see from the above examples, each country has interpreted the Berne Convention in its own manner and has a unique piece of copyright legislation.