Information Outlook, Vol. 5, no. 2, February 2001
An Excerpt from Canadian Copyright Law, third edition
by Lesley Ellen Harris
Excerpted with permission of McGraw-Hill Ryerson, from Canadian Copyright Law, 3rd edition, ©2001 Lesley-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.
Registration, and Copyright Notice Requirements
Similar to Canadian law, copyright protection is automatic in the United States when the work is created and in some fixed form. At one time, such things as publication, registration and using proper copyright notices were necessary for protection in the United States. For works first published on or after March 1, 1989, registration or inclusion of any form of copyright notice is not required to preserve the life-plus-seventy protection. Before March
1, 1989, the use of the copyright notice was necessary on all published works and omitting it could result in loss of copyright protection. However, there are corrective steps that may be followed to ensure that copyright was not lost for this reason.
Despite the absence of formal requirements in the current law for registering certain works, the law provides many incentives for doing so, even for non-American originated creations. For instance, registering before or within five years of first publication provides prima facie evidence of copyright validity and of the truth of the statements contained in the registration certificate. Also, registering published works before or within three months of publication, or before infringement, permits successful plaintiffs in infringement suits to seek special statutory damages and lawyers' fees in virtually all cases (otherwise, only an order of actual damages and profits is available to the copyright owner of a published work). Furthermore, registration establishes a public record of the copyright claim. Thus, an infringer cannot claim that he or she had no way of knowing a copyright existed and therefore cannot claim to be an innocent infringer to seek a reduction in damages payable to the copyright owner. Registration may be made at any time. Both published and unpublished works may be registered.
For copyright owners of works of American origin, registering a work may be necessary in order to file an infringement suit in an American court. As a general rule, under American law, the prelitigation registration does not apply to foreign (i.e., non-American) authors including persons or companies who initially acquired copyright protection under the Canadian Copyright Act, and by virtue of the international copyright conventions, acquired copyright protection in the United States (unless publication occurred simultaneously in the Canada and the United States). You should check into the details of this if you think your work may be of American origin. If you do register in the United States, you might want to take advantage of other American Copyright Office benefits, for instance, voluntary recording of transfers of copyright ownership.
Employment Situations
and Assignments of Copyright
If you are working in the United States or for an American individual or company, be aware that the United States has different laws and industry standards than Canada for works created in the course of employment as well as for commissioned works. Also, in certain industries in the United States, you may automatically be asked to assign, as oppose to license, your copyrights as a precondition of employment. For instance, American movie and television producers may require an assignment of the publishing rights to a musical score. Similarly, if you write a spec script for a film, you will initially own the copyright in the script, however, if you sell the script to an American production company or studio, they will require an assignment of the copyright. Even if the assignment of rights is not obvious, be on guard for American contracts that automatically vest copyright ownership in the party specially ordering or commissioning certain types of works, such as collections and audio-visual works, including motion pictures and certain computer software. Also, keep in mind that contractual arrangements can override the statutory law and you may be able to negotiate better terms in a contract than those initially offered to you.
In the United States, copyright generally belongs to the author. However, in employment or what is referred to as "work made for hire" situations, the employer or other person for whom the work was prepared is considered the author and owner of the copyright. This is true unless the parties have expressly agreed otherwise in writing. Recall that in Canada, even in employment situations, the original creator of the work remains the author of the work for copyright purposes notwithstanding the fact that the employer is the owner of the copyright. This has important consequences for such things as moral rights protection.
Examples of works made for hire include a video game created by a staff game creator for Video Game Corporation, a newspaper article written by a staff journalist for publication in The L.A. Times, and a musical arrangement written for ZZZ Music Company by a salaried staff arranger. It also includes a script commissioned for a film or CD-ROM even where no salaried employment relationship exists, if the scriptwriter and film/CD-ROM producer sign an agreement to the effect that it is a work made for hire.
Moral Rights
Moral rights protection under American federal and state laws is not the same as moral rights protection under the Canadian 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) is for one group of creators visual artists, or more accurately, those who create "works of visual art." The law gives certain visual artists the right to claim authorship in their work, and to prevent the use of their name in association with a work. In addition, the law grants artists the right to prevent the intentional distortion, mutilation or other objectionable modification of certain works of "recognized stature." Artists who qualify for federal moral rights protection can also prevent any destruction of certain works. Some states such as New York and California also have moral rights protection for visual artists.
New American Digital Legislation
On October 28, 1998, President Clinton signed into law the Digital Millennium Copyright Act of 1998 (DMCA) to update the American Copyright Act. Among other things, the DMCA helps copyright owners protect their digital content through its anticircumvention and copyright management information provisions. At the current time, there are no similar provisions in the Canadian Copyright Act, however this new American legislation may serve as an example in Canada and around the world as we begin to determine how copyright law applies in the digital world.
Regarding anticircumvention, the DMCA protects against the tampering of copyright protection technologies and rights management systems. The DMCA prohibits unauthorized circumvention of technological measures controlling access to or restricting use of a copyright protected work, as well as certain devices and services used for such unauthorized circumvention. The types of technological measures protected include passwords, serial numbers and encryption that copyright owners use to control or restrict access to their works. For example, the law might be infringed by using a bootleg password to gain unauthorized access to a sound recording or video clip.
In addition, the DMCA prohibits deliberate tampering with copyright management information, including knowingly providing false copyright management information, or distributing false copyright management information, "with the intent to induce, enable, facilitate or conceal infringement." Copyright management information includes the title of a work, the name of its author and the copyright owner, other identifying information, and terms and conditions for use of the work, provided they are "conveyed in connection with" copies, phonorecords,
performances or displays of the work. It also prohibits intentionally removing or altering copyright management information, or knowingly distributing or publicly performing works from which the copyright management information has been removed or altered.
Further, the DMCA provides a limitation on the potential liability of Internet service providers (ISPs) for certain copyright infringements by their customers and others (e.g., employees and agents). Under specified circumstances, ISPs with infringing copyright materials on their systems will not be liable for monetary relief such as "damages, costs, attorneys' fees, and any other form of monetary payment," or for certain injunctions or other equitable relief for infringement of copyright.
How to Obtain Further Information on American Copyright Law
The American Copyright Office has extensive information on many aspects of its law. The best place to begin your search would be in the office's web site. Contact information is:
Copyright Office
Publications Section, LM-455
Library of Congress
Washington, D.C. 20559-6000 U.S.A.
T: 1-202-707-3000 (information specialists are on duty 8:30 a.m. to 5:00 p.m., Eastern Time, Monday - Friday)
Forms hotline (24 hours) T: 1-202-707-9100
F. 1-202-707-6859 (indicate person or section)
Fax-on-demand: 1-202-707-3000
Summary
Copyright holders who are protected under the Canadian Copyright Act are protected when their creations are used in the United States and such protection is governed by the rights and remedies set out in the American Copyright Act. Although there are many similarities with respect to the copyright laws in the two countries, there are differences with respect to the registration system, maintaining and enforcing copyright protection and exceptions from the law, all of which should be taken into account when exploiting copyright works in the United States. 
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