Kara Sears
The copyright laws of different countries differ, and the relevant copyright law for activities that take place in Canada is Canadian copyright law. In general, copyright laws in the U.S. and Canada are different, and while the U.S. has a provision known as 'fair use', Canada has its own equivalent, 'fair dealing'. However, both countries are parties to international copyright treaties, meaning that works created in one country will be protected in the other under that country's respective copyright laws.
| Characteristics | Values |
|---|---|
| Are American and Canadian copyright laws the same? | No, they are different. |
| Do works created in the U.S. receive protection in Canada? | Yes, under the international copyright treaties both countries are a part of. |
| Do works created in Canada receive protection in the U.S.? | Yes, under the international copyright treaties both countries are a part of. |
| What is the term of copyright protection in Canada? | 50 years after the creator's death. |
| What is the term of copyright protection in the U.S.? | Not clear, but the U.S. has a 'fair use' provision. |
| What is the new term of copyright protection in Canada as per the USMCA? | Life + 70 years, with performances and sound recordings protected for 75 years. |
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What You'll Learn
International copyright treaties
Two of the most significant international copyright treaties are the Berne Convention and the Universal Copyright Convention (UCC). The Berne Convention for the Protection of Literary and Artistic Works requires that protection for all creative works in a fixed medium be automatic and last for at least 50 years after the author's death, except for photographic and cinematographic works. Photographic works are protected for a minimum of 25 years, while cinematographic works are protected for 50 years after their first showing or 50 years after creation if they have not been shown. The Berne Convention also includes the rule of the shorter term, which states that the length of the copyright term for a work in a country is whichever is shorter: the length of the term in the source country or the country protecting the work.
The Buenos Aires Convention (Third Pan-American Convention) is another treaty signed by most North and South American countries, which provides for the protection of all creative works as long as they contain a notice claiming copyright. The WIPO Copyright Treaty (WCT) is another example, which, in addition to the rights recognized by the Berne Convention, grants certain economic rights and protects computer programs and compilations of data or "databases".
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Differences between US and Canadian copyright laws
The United States and Canada are both parties to the Berne Convention, an international agreement governing copyright law. According to this convention, all member countries must respect the copyright of photos equally. While both countries grant protection to original works in comparable categories, there are some differences in their respective copyright laws.
One key difference lies in the registration of copyrights. In neither country is registration of copyrights obligatory. However, if one wishes to pursue legal action for image theft in the United States, prior registration of the images in question is required. In Canada, there is no such requirement, and image theft can be pursued without prior registration.
Another difference lies in the concept of "fair use" in the United States and "fair dealing" in Canada. "Fair use" in the United States permits the use of copyrighted materials without the author's consent, although the concept is rather complex and prone to abuse, often leading to image theft. In Canada, "fair dealing" allows for the use of copyrighted material but only in certain specific categories, including education, research, news reporting, private study, parody, and satire.
While there are some similarities between US and Canadian copyright laws, there are also important differences that creators and copyright holders need to be aware of, especially when dealing with cross-border intellectual property issues. These differences can impact the protection and enforcement of copyrights in each country.
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Canadian copyright law history
While it is unclear to what extent British copyright law applied to its colonies, including Canada, the House of Lords ruled in 1774 that copyright was a creation of statute and could be limited in its duration. The first Canadian colonial copyright statute was the Copyright Act of 1832, passed by the Parliament of the Province of Lower Canada, which granted copyright to residents of the province. The Act was designed to encourage the emergence of a literary and artistic nation and to promote literature, bookshops, and the local press.
After the Provinces of Upper and Lower Canada (now Ontario and Quebec) were reunified to form the Province of Canada, the 1832 Act was repealed and replaced with the Copyright Act of 1841, which only granted copyright in books, maps, charts, musical compositions, prints, cuts, and engravings. This Act had a significant impact on Canada, as it prohibited the importation and sale of reprints of any book under British copyright printed in other countries. Canada, which had previously imported most of its books from the United States, now had to import books under British copyright from printers in Britain, which were often unaffordable for Canadian residents.
In response to the 1841 Act, the UK Parliament passed the Copyright Act of 1842, which granted protection to any person resident in Canada or any British subject resident in Great Britain or Ireland. This re-established the publication requirements of the 1847 statute and prompted the British government to demand that Canada revise its laws to respect imperial copyright law. Under Imperial copyright, London printers had a monopoly, attracting most authors from the colonies to publish with them first.
Upon Confederation, the British North America Act of 1867 granted the federal government power over matters such as copyright and patents. The following year, the Parliament of Canada passed the Copyright Act of 1868, which re-established the publication requirements of the 1847 statute and prompted further demands from Britain to respect imperial copyright law. Canada remained subject to imperial copyright law established by Britain until 1921, when the current copyright law was established by the Copyright Act of Canada. This Act has since been substantially amended in 1988, 1997, and 2012, with all powers to legislate copyright law falling under the jurisdiction of the Parliament of Canada.
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Copyright protection in Canada
The general term of copyright protection in Canada has recently changed. Effective December 30, 2022, the term has been extended from the life of the creator plus 50 years to the life of the creator plus 70 years. This change was agreed upon in the Canada-United States-Mexico Agreement trade treaty, aligning Canada's copyright term with that of the United States and several other countries.
It's important to note that copyright protection in Canada doesn't last indefinitely. When the term expires, the work enters the public domain, becoming available for anyone to use and copy without requiring permission or payment. The date of entry into the public domain is determined by the copyright laws of the country in question. In Canada, if the creator died in 1971 or earlier, their copyright has expired, and their work is now in the public domain. For creators who died in 1972 or later, their works are protected for their lifetime plus 70 years.
Additionally, specific types of works have varying terms of copyright protection in Canada. For instance, anonymous or pseudonymous works and government works protected by Crown copyright may have different terms. These specifics are outlined in Sections 6 through 12 of the Copyright Act.
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US-Mexico-Canada Agreement
The United States–Mexico–Canada Agreement (USMCA) is an update to the 25-year-old NAFTA agreement, designed to support mutually beneficial trade, fairer trade deals, and robust economic growth in North America. The agreement contains a comprehensive chapter on the environment, with enforceable environmental obligations, including commitments to combat trafficking in wildlife, timber, and fish, improve air quality and tackle marine litter.
The agreement also includes provisions to protect intellectual property rights, including copyright, and to establish safe harbours for IP protection, consistent with United States law. The USMCA builds on existing international IP agreements, such as the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and certain treaties administered by the World Intellectual Property Organization (WIPO).
Under the USMCA, Canada has a 2.5-year transition period to implement an obligation to provide a term of copyright protection for works, of the life of the author plus 70 years. This includes a full national treatment obligation regarding the protection of IP rights, including copyrighted works, performances, and sound recordings. Canada has also preserved important flexibilities in copyright and related rights, particularly regarding technological protection measures (TPMs) and rights management information (RMI).
The agreement also includes provisions to limit the civil liability of internet platforms for third-party content, outside of intellectual property enforcement, to enhance the economic viability of these platforms.
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Frequently asked questions
No. The relevant copyright law for activities that take place in Canada is the copyright law of Canada, regardless of where the copyright owner is from or lives.
The Copyright Act, 1921, which came into force in 1924. This law was modelled on the UK Copyright Act 1911.
One example is that the U.S. has a provision known as 'fair use', which differs from the Canadian equivalent, 'fair dealing'.
Yes. Both the U.S. and Canada are parties to international copyright treaties, meaning that works created in one country will be protected in the other country under that country's copyright laws.
The duration of copyright in Canada was extended to life plus 70 years, as per the United States–Mexico–Canada Agreement. This agreement was ratified and came into force on 30 December 2022.
