Canadian and U.S. copyright law share some commonalities but also have many differences. One shared trait is that both countries belong to the leading international copyright treaty, the Berne Copyright Convention.
Under the Berne Copyright Treaty, Canada and the U.S. are obligated to include certain provisions in their respective copyright statutes relating to such issues as duration of copyright, economic rights and moral rights of an author of a copyright-protected work.
When using, reproducing and sharing copyright-protected content in Canada or the U.S., you must apply the copyright laws of that country. Below we highlight some provisions in the Canadian and U.S. copyright acts.
Copyright Duration in Canadian and U.S. Copyright law
Let’s start with an example. You’re 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 country’s laws do you determine if permission is necessary?
International copyright law principles guide us to the principle of national treatment — you apply the law of the country where the work is being used.
So back to our example, you apply Canadian copyright law, examining the Canadian Copyright Act to determine if permission is needed. One of the first questions to address is whether the work is protected by copyright. You apply the copyright duration of life-plus-fifty (or 50 years after the death of the author) under Canadian copyright law. You do not apply the longer duration of life-plus-seventy that exists under the U.S. Copyright Act. The U.S. duration of life-plus-seventy only applies in the U.S., that is, if you are using copyright works in the U.S..
If the author of the article has been dead for 60 years, the work is in the public domain in Canada. Once a work is in the public domain, you do not have to obtain permission to use it.
To continue with this example, suppose you were copying the exact same article in the U.S.. You would apply U.S. copyright law and determine that the work is protected by copyright for another 10 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.
Copyright Protection of Government Works
In Canada, federal government works are protected by copyright; however, U.S. government works don’t have copyright protection in the U.S..
Under American copyright law, U.S. government works are in the public domain and may be freely used without permission. This applies to any work created by an employee of the U.S. federal government as part of that person’s official duties.
So what happens when U.S. government works are reproduced outside the U.S. — are they freely available? The answer would depend on where the work is being reproduced. If you are photocopying a U.S. government document in Canada, you apply the copyright laws of Canada.
This means that in some situations an unprotected work (that is, a work in the public domain) 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..
Where the U.S. Government Does Own Copyright
In some situations, the U.S. government does own copyright. The U.S. government may be a copyright owner if it obtained copyrights through an assignment, bequest or other transfer. For example, a consultant, freelance writer or artist may assign a work they created 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 that, as a whole, isn’t protected by copyright. The material in question in this situation is called third-party content. To reproduce that government work incorporating third-party licensed content, you need permission from that third-party copyright owner.
Moral Rights in the U.S. Copyright Act
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 U.S. moral rights provision provides the following:
- The author of a work of visual art has the right to claim authorship of that work (i.e., have their name on the work).
- Prevention of the use of the author’s name on any work of visual art they did not create.
- 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 that would be prejudicial to their honor or reputation.
- The author has the right to prevent any intentional or grossly negligent destruction of a work of “recognized stature.”
The author of a work of visual art may not transfer their moral rights. They maintain their moral rights even if they are no longer the copyright owner of the work. However, the author may waive these moral rights by signing a written document to that effect. These moral rights last until 31 December of the year in which the author dies.
Moral Rights in the Canadian Copyright Act
In Canada, authors of all works have moral rights. This means a painting, computer software or even a corporate memorandum are subject to moral rights. When reproducing or publicly performing any work in Canada — even U.S. works — you need to respect the moral rights of the author.
In Canada, you need to include the author’s name on the work, and can’t make any changes that may be prejudicial to the honor or reputation of the author. You’re also precluded from using that work in association with a product, service, cause or institution in a manner that may harm the reputation of the creator.
Under Canadian law, moral rights may be waived but they can’t be assigned or transferred to another person except upon death of the author. Moral rights last 50 years after the author’s death.
Moral Rights in Canadian and U.S. Copyright law
So note that authors of works being used in Canada may be entitled to moral rights even if those same authors don’t have moral rights in the U.S., or if the moral rights in the U.S. 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.
Copyright Exceptions in Canadian and U.S. Copyright Law
Both Canada and the U.S. have exceptions or special provisions for libraries and archives for preservation, interlibrary loan and other specific purposes. Both countries have exceptions for educational institutions and other interest groups and for certain specific uses. These provisions and exceptions only apply when you are using a work in that country.
In addition, the U.S. has the fair use principle and Canada has fair dealing. Both provisions require judgment calls based on the specific circumstances of the situation to determine when they apply. Unlike specific exceptions for specific user groups, fair use and fair dealing potentially apply to all users of content, provided the use meets the criteria of each principle in that particular circumstance.
Orphan works under Canadian and U.S. Copyright Law
Orphan works are works whose owners cannot be identified or located. For example, historical letters or old photographs are often orphan works. Canada has a provision to obtain a license for the use of orphan works, but the U.S. has no similar provision.
Copyright protection is automatic in the U.S. and Canada and in all Berne Copyright Convention countries once a work is in some fixed form. Although registration of a work is not necessary in either country in order to obtain copyright protection, it’s helpful prior to commencing any court action to enforce one’s rights.
Many copyright owners who commercially exploit their works register their works with their country’s copyright registration system. In fact, many Canadians also register their works with the U.S. Copyright Office because they can submit a copy of the work which can act as evidence in a copyright infringement suit. In Canada, the registration system consists of an application only and submission or deposit of the copyright work is not part of the application nor accepted by the Canadian Copyright Office.
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 within their own countries. However, as you can see from the above examples, each country has interpreted the Berne Convention in its own manner and each has unique copyright legislation.