Learning about Canadian and U.S. copyright law from either side of the border can be difficult. How do the Canadian and U.S. copyright laws compare? Do you apply Canadian or U.S. copyright law when reproducing an article by a U.S. author in Canada? Or what if you are posting the article in a website from your office in Canada? My new book, Canadian Copyright Law, 4th edition, and its accompanying Canadian Copyright Law website can help you answer these questions. Chapter 15, An Overview of American Copyright Law, can be especially helpful.
I've also recently developed an eTutorial on U.S. Copyright Law for Canadians - the essentials Canadians need to know. There's so much confusion between the laws of the two countries. Does fair use only apply in U.S.? How does the Canadian fair dealing provision apply in both countries - or does it? Lots of interesting and confusing concepts and practical applications to learn.
I am no longer posting to this blog. All the content in this blog and much more is now at www.copyrightlaws.com. Specifically, visit the category: Canada - US Issues to view related content to this blog. Thank you for all your comments on this blog - and please visit us and post your comments at copyrightlaws.com.
Just read an interesting article stating that were U.S. copyright duration not extended an extra 20 years, many more works would now be in the public domain and orphan works legislation would be less important to those seeking use of still protected materials in the U.S.
In relation to Canada, with a duration of life + 50 and an unlocatable copyright owner provision -- does that mean Canada's copyright policy is good, or at least balanced policy? Of course, when Canadian works are used in the U.S., U.S. copyright law (life + 70 and no unlocatable copyright owner provision exists), the use of those works are subject to U.S. law (and of course vice versa.)
The Copyright & New Media Law Newsletter, volume 13 (2009) issue 1, is now available for free at http://copyrightlaws.com. This 13 year old quarterly print and electronic newsletter provides copyright information, news, analysis and practical advice, in plain English from a variety of contributors - from lawyers to academics to others working on copyright and licensing issues in their organizations.
T of C (Vol. 13, Issue 1) Editorial – lobbying for copyright reform Copyright Rules of the Road for Bloggers U.S. Copyright Legislation in 2009 Copyright Quiz 1.0 “Non-Commercial” and Other Definitions in Licenses Copyright Questions & Answers (a comprehensive list of these Qs & As is at www.copyrightanswers.blogspot.com)
The term orphan works is a common term in copyright parlance and it means works for which the copyright owner may not be located. It applies to all works from images to text and includes posters and photographs and letters. In the U.S., there have been several failed attempts to pass special legislation for the use of orphan works. Such legislation would allow those who undertake due diligence to find a copyright owner but are unsuccessful, to use that work in certain specified conditions. It is possible that legislation will be introduced again in the U.S. in the Fall of 2009.
Canada has had an orphan works provisions for many years now. It is called the Unlocatable Copyright Owner provision and is administered by the Copyright Board of Canada. If you cannot locate a copyright owner, and have exhausted your efforts, you may apply for a limited licence from the Board for your use. Further info is at http://www.cb-cda.gc.ca/unlocatable/index-e.html.
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 Web site, 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 (ie, 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 fair use allows for multiple classroom copying whereas the comparable fair dealing does not.
No 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 (164 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.
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.
Each country has a general duration of copyright protection. The Berne Convention (www.wipo.org) requires its 164 member countries to protect copyright works for a minimum of 50 years after the author's death. So member countries such as Canada has a duration of life plus 50. Other member countries such as European Union countries and the U.S. have extended their copyright protection to life plus 70. This helps protect creators and owners and may be a burden to researchers, archivists, educators and others who then need to clear copyright for an additional 20 years in those countries.
In practice, 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.
The book is equally for Canadian and US librarians (and publishers and others). Provisions that are more prominent in Canada than the US such as "moral rights" is discussed; global copyright issues are discussed throughout the book; and fair dealing in Canada and fair use in the U.S. are equally discussed.
A site devoted to the book is at www.licensingdigitalcontent.blogspot.com.
On March 26, 2009, I attended an ALAI Canada lunch meeting in Toronto on the topic, "The Politics of Fair Use "Common Sense" and the Digital Revolution" given by Toronto-based lawyer Richard Owens.
Richard began his talk stating that the US principle of fair use is a users right whereas fair dealing in Canada and in other Commonwealth countries has traditionally been a defense to an infringement action (though technically fair use is too), which began as a rule of equity, now formalized in the Canadian Copyright Act. Since the 2004 Supreme Court of Canada decision in CCH Publishers v. Law Society of Upper Canada, there has been an "Americanization" of fair dealing in Canada. Some even suggest that fair dealing is now broader than fair use. Yet, as Richard pointed out, there is no constitutional copyright provision in Canada as there is in the US.
There was much interesting discussion about where the SCC decision will take the direction of fair dealing in Canada and whether it is now the current broader use of fair dealing that applies in Canada, or whether the facts specific to the 2004 case keep the state of fair dealing as it was prior to the 2004 decision.
I see that Richard is a popular speaking on various IP issues and I urge you to attend one of his talks or seminars.
For more info about ALAI Canada, email firstname.lastname@example.org. ALAI is an international group of copyright creators (and not necessarily lawyers.)
Copyright 49 provides a discussion forum on the interplay, issues and relevancy of U.S. copyright to Canadians. With the two countries sharing a border, and sharing many elements of their cultural, content and information industries, it's important to understand how U.S. copyright events, proposed legislation, current law, and court cases affect these industries in Canada.
I am a Canadian copyright lawyer, author of the book, Canadian Copyright Law, 4th ed., and I currently live in the Washington DC area. I love being able to be current on Canadian, U.S. and global copyright issues. I attend various copyright events in DC, keep a pulse on U.S. legislation and court cases, and am on top of trends in the copyright industries in the U.S., Canada and around the world. If there's a copyright issue you need to specifically follow or want in-depth analysis of an issue on this blog, please contact me at: "lesley at copyrightlaws.com". -- Lesley