Know Thy Neighbor, Eh! – Key Differences Between U.S. and Canadian Copyright Laws
Retailers are continuously moving beyond U.S. borders in order to achieve brand recognition and success. With that, it is essential that companies be aware of the differences that exist to protect their intellectual property. Given the extent of the relationships between Canada and the U.S., especially in the fashion industry, it is valuable to understand the difference between copyright law in both jurisdictions.
Both Canada and the U.S. recognize that protection extends to original works of authorship. Canada outlines more specifically what those works are, but they have been given a broad interpretation.1 Registration is also not required in Canada or the U.S. However, it is important to note the benefits of registration in Canada and the disadvantages of not being registered in the U.S. In Canada, registration can be used as evidence in civil and criminal proceedings, and a lack of registration in the U.S. precludes a claim for statutory damages. It is especially important to note that registration in one country does not extend to the other. Both countries are parties to the Berne Convention for the Protection of LIterary and Artistic Works, an international agreement governing copyright.
It is essential to be aware of the difference in order to understand the availability of protection when working in both jurisdictions. Here are some key differences:
- Moral Rights – The right to be associated with their work and the author’s right to the integrity of that work. In the U.S., moral rights are only recognized when dealing with visual arts. Canada, however, applies moral rights to all types of protected works.
- Work for Hire – In the U.S., an employer is automatically deemed the author and owner of copyrightable work created by an employee in the course of their duties as an employee. Canadians are unfamiliar with this concept because work for hire does not exist in Canada. There, authorship remains with the employee.
- Term Length – In the U.S., copyright extends for the life of the author plus 70 years. In Canada, the copyright extends for the life of the author plus 50 years.
- Fair Use/Fair Dealing – The U.S. has a more open-ended approach to “fair use”. By contrast, Canadian “fair dealing” is limited to the sole purposes of research, private study, criticism, new reporting, education, parody, and satire.
- Governmental Works – in the U.S. government works are automatically part of the public domain and cannot be copyrighted. In Canada, works produced by the government are subject to Crown Copyright.2
http://www.jdsupra.com/legalnews/copyright-protection-differences-97281/ [https://perma.cc/N59K-PW3K]; https://gowlingwlg.com/en/canada/insights-resources/canada-and-the-united-states–differences-in-copyright-law [https://perma.cc/U4DW-79ST].↩