An Excerpt from Canadian Copyright Law, third edition - comparison of Canadian and American copyright law

Information Outlook, Feb, 2001 by Lestey Ellen Harris

Chapter 15: Canadian and American Copyright Laws: A Comparison

THE CONGRESS SHALL HAVE POWER . . . TO PROMOTE THE PROGRESS of Science and useful arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

-United States Constitution, Article I, Section 8

The Relevancy of American Copyright Law to Canadians

The underlying principles of the Canadian and American copyright laws, and perhaps copyright laws around the world, are basically the same; that is, to provide creators with adequate protection in their creations and provide users with reasonable access to these creations. Notwithstanding this fact, there remain many differences in the philosophies behind, and practical effects of, the Canadian and American copyright laws.

If your work is being used in the United States, this chapter is pertinent since you are protected in the United States under the American copyright law. Even where your work is not being used in the United States, the American Copyright Office may be of some assistance with respect to registering and depositing your works and searching for owners of copyright materials.

Works Protected in the United States

Canada and the United States generally protect the same types of works and grant similar rights to creators, though the terminology used in the respective legislations may differ. For example, works explicitly protected under the American copyright legislation include the following:

* literary works

* musical works (including any accompanying words)

* dramatic works (including any accompanying music)

* pantomimes and choreographic works

* pictorial, graphic and sculptural works

* motion pictures and other audio-visual works

* sound recordings

Rights Granted in the United States

Exclusive rights granted to copyright holders under the American Copyright Act include the following:

* to reproduce a copyright work in copies or phonorecords

* to prepare derivative works based upon the copyright work

* to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease or lending

* to publicly perform literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works

* to publicly display literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio-visual work

* to perform a sound recording by digital audio transmission

In addition, copyright holders may authorize others to use any of the rights listed above.

Fair Use and Exceptions

There are wider allowances for the free use of copyright materials under the American law than under Canadian law. This is true for uses subject to fair use, as well as for the provisions specifically for user groups like teachers, librarians and archivists. For example, fair use in the United States, unlike the fair dealing provision in Canada, allows for the making of multiple copies for classroom use under certain limited circumstances.

You should not assume that an act constituting a copyright violation under Canadian law is a violation in the United States. Always keep in mind that when a work is being used in the United States, it is subject to the fair use provision and the exceptions set out in the American Copyright Act. Likewise, when American material is used in Canada, it is subject to the fair dealing provision and the exceptions set out in the Canadian Copyright Act.

Length of Protection

Until October, 1998, the general duration of copyright protection in the United States was life-plus-fifty. On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act, which immediately extended the term of copyright an additional twenty years, making the term for most works the life of the author plus 70 years. Therefore, under current American copyright law, works created on or after January 1, 1978, enjoy the general term of copyright protection of life-plus-seventy. Copyright expires at the end of the calendar on the seventieth year, i.e., December 31 of that year. As such, Canadian works are protected in the United States for life-plus-seventy years whereas American works are protected in Canada for life-plus-fifty (since you apply the copyright law where the work is being used).

The duration of protection for works created, but not published or registered, before January 1, 1978 is life-plus-seventy, but the duration never expires before December 31, 2002. If the work is published before December 31, 2002, the duration will not expire before December 31, 2047.

The duration for pre-1978 works that are in their original or renewal term of copyright is ninety-five years from the date the copyright was originally secured.

Like the Canadian law, there are specific provisions in the American law for the duration of copyright in specific circumstances. For example, where there is a "work made for hire", that is, a work was prepared by an employee within the scope of his or her employment, or where a certain work is specially ordered or commissioned for use in particular works (for example, a contribution to a motion picture or other audio-visual work), the term of copyright protection is ninety-five years from the date of publication or one hundred and twenty years from the date of creation of the work, or whichever expires first. Further, where there is an anonymous or pseudonymous work, the duration of copyright is ninety-five years from first publication or one hundred and twenty years from creation, whichever is shorter. This is provided the author's identity is not revealed in the American Copyright Office records.