Canadian Copyright in Contrast to American Copyright

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There are fundamental differences between copyright in Canada and in the United States that are so often compared to each other.[1] The United States (US) Government accuses Canada of being a haven for piracy[2] while Canadian consumers believe it is just right. All the while Canadian Copyright has been stuck in place for the better half of the last decade due to legislation being stalled.[3]

Primary Legal Similarities

Although there are not many similarities between Canadian and American (United States) copyright, the fundamental principles underlying the two are essentially the same. Copyright in both countries is immediately granted to the original owner of the work immediately upon creation of the work.[4] This protection is limited to the original works of the author and not to derivative works unless also created by the original author.[5] There is no registration required.[4] However, although there is no registration required, in both countries registering your copyright claim will assist in legal proceedings should the need arise. In both countries, civil and criminal court cases utilize registration as evidence of the ownership of the copyright.[5] This saves time in the court case as one no longer has to prove that they own the copyright or created the works. As well as not requiring registration, the registration of copyright in one country does not extend to the other.[5] Therefore, to have sufficient copyright protection one has to register the copyright in both countries.

Works that are allowed copyright are virtually indistinguishable between Canada and America. While in law they are stated differently, they amount to equivalent coverage. In Canada, copyright recognizes literary, musical, art and drama works. Since these terms in Canadian copyright are so loosely defined, they cover the same amount as the American copyright.[5] As well as allowing things to be copyrighted, the two countries also share similar laws in what they will not copyright. Ideas are not copyrightable although they may be patentable.[4] Titles, with few exceptions in Canada, are not copyrightable as well as any publication that involves pure data.[4]

Primary Legal Differences

The legal differences between Canada and American copyright law come almost exclusively in terms of education uses, fair use (or fair dealing), enforcement, as well as the ideas of safe harbor and digital rights management.

“Fair use” in the United States is more defined and broader than it is in Canada. Fair use in the States covers parodies, criticism, review, news reporting, research, private study, educational uses. Meanwhile, in Canada the uses are limited to research, private study, criticism, and news reporting.[5] As well, in Canada, it is required by law that “fair dealing” for the purpose of criticism, news reporting be cited.[5] [4] Critics of Canadian “fair dealing” laws have stated essentially that Canada does not have a valid fair dealing system which is unfairly tipped to the copyright owners.[6]

Enforcement of copyright also differs slightly by county. Canada has a limitation of the life of the author plus 50 years while the US has a limitation of life of the author plus 70 years.[5] The US also has its Digital Millennium Copyright Act (DMCA) which includes new copyright laws which Canada does not have. The first, and perhaps most terrifying, is the fact that it made breaking DRM (Digital rights management) illegal.[5] Canada currently does not have this provision and it is legal to make any copy of any work that you have bought. Even though the US has this law, it is unclear in how effective it has been in combating piracy.[3] In Canada, internet service providers (ISP’s) are not guaranteed by law that they are not liable for the uses of their clients, yet neither are they accountable.[5] In the States, ISP’s have safe harbour so long as they do not actively sanction or improve access to piracy.[4] Unlike the States, in which the FBI (Federal Bureau of Investigation) is involved in tracking down piracy, the RCMP (Royal Canadian Mounted Police) of Canada have declared that they have no intentions of going after individual file sharers. [7]

In the US, when under employment, anything at work that you create is typically owned by the employer.[5] This is called “work for hire.” However, in Canada, the authors keeps the copyright for themselves, regardless of whether they are under employment or contract.[5] This is a major factor in hiring in Canada since every employer needs to make sure that it has an agreement with the employee that the content they create will be licensed to the employer. The exception to this, in Canada, is government employees. Any work done by government employees or under government contract in Canada is copyrighted to the government under the Crown Copyright.[8] This differs from the US again since the US does not copyright State produced work.

In the educational world, the differences in laws have major ramifications for teachers. In the US, journal articles may be given to students in either a paper or an electronic version without extra charge or permission from the copyright owner; this assists in bringing tablets into education.[9] However in Canada, journals can only be given in a paper format or else the library itself has to pay an extra fee and receive permission from the publisher.[9] In the US, teachers can show any radio program, TV show, play a CD, or show any film in class without the permission or payment to the copyright owner.[9] Once again, in Canada teachers are forbidden to unless they have the permission (license) of the copyright owner.[9] Finally, in terms of photocopying, teachers in the US can photocopy anything they want for mass distribution in a classroom, whereas in Canada they have to provide payment to copyright owners through a collective.[9]

Bill C-11

The Canadian Government in recent years has been chided by the United States in their Special Report 101 as being a safe haven for piracy.[2] While Canada has dismissed these claims as not being credible in its analysis or its findings, it has nonetheless had a major impact on how we have made our new laws.[2] Some have found that this report is industry driven which, itself, has had a long time issue with Canadian copyright.[2] Over the past three years several iterations of copyright bills have been passed through the Canadian Government, yet Bill C-11 is the most likely to succeed due to the majority government in Canadian Parliament right now. There is an outcry against this bill on the consumer side accusing it of being like SOPA (Stop Online Piracy Act bill in the US).[10] This bill includes major changes to DRM, educational rights, expansion of fair dealing, format shifting.[10] In many ways, this bill would bring Canadian copyright in line with American copyright.

The primary industry-wanted change to the Canadian copyright would come in the formation of digital rights management. Bill C-11 would effectively make it illegal for any consumer to copy media that they have bought so long as they have to bypass a digital lock.[11] What most people do not know is that when they burn a DVD to their computer or copy a CD often they are bypassing DRM. This would make an already heavily practiced act illegal. While the bill supports format shifting, as in you can take a song from a CD to an MP3, it does not cover it if one has to circumvent DRM to do so.[12] This means that the industry has absolute say about when and where you can copy something. There is currently a call by the opposition to amend this section so that DRM is only illegal for infringing purposes.[10]

Fair dealing would also be expanded in Bill-C11 to be more encompassing. This would mean that uses under parody, satire, and education would be expanded to be allowed; backup copies would officially be legal to keep as well.[11] [13] However, this again is limited to DRM and not circumventing it. The restrictions on teachers are huge, who must delete their copied content within a few months after the class is finished.[13] Although it is great that teachers will not have to pay to use news articles, it actually restricts what teachers may and may not do even further. [13]

Finally, perhaps the most important part of the legislation is the limitation of liability to ISP’s. ISP’s are not held responsible so long as they do not advertise their services for illegal activity and they act when they are aware of copyrighted material on their services when indicated by a court decision. [13] ISP’s are also now required to inform their consumers of a copyright owner's desire to protect their content when the copyright owner contacts the ISP with copyright infringement.[13] The ISP in turn forwards this information to the consumer and stores the consumer IP (Internet Protocol) information for a period of 6 months; this is extended to 12 months if court action appears.[13]

Overall, Bill C-11 would bring Canadian copyright further than American copyright in its enforcement of copyright infringement.

References

  1. Note: Laws are examined as they were on December 31st, 2011, although Bill C-11, the current bill to reform Canadian copyright, will be examined at the end of this article to show what changes may occur to Canadian copyright law that would bring it in line with American copyright law.
  2. 2.0 2.1 2.2 2.3 Geist M. (2009) "U.S. Targets Canada Over Copyright in Special 301 Report". Michael Geist (blog), April 30, 2009. (accessed March 4, 2012).
  3. 3.0 3.1 Ibbitson, John. "It's Canada's copyright Kyoto." The Globe and Mail, section A.4, March 07, 2007. (accessed March 1, 2012).
  4. 4.0 4.1 4.2 4.3 4.4 4.5 Sotiriadis, Bob. "A Summary of Some Distinctions Between Canadian and American Copyright Law and Practice." (accessed March 1, 2012).
  5. 5.00 5.01 5.02 5.03 5.04 5.05 5.06 5.07 5.08 5.09 5.10 Susan Abramovitch, Stephane Caron, Gilles Daigle, and Kevin Sartorio. "Canada and the United States: Differences in Copyright Law." Last modified May 2011. (accessed March 1, 2012).
  6. Sookman, Barry. "Does Canada already have fair use?", Barry Sookman (blog), March 22, 2010. (accessed March 1, 2012).
  7. "RCMP do not consider File-Sharing a Priority." Digital Copyright Canada (blog), November 12, 2001. (accessed March 1, 2012).
  8. Harris, Lesley. Canadian Copyright Law. Washington Special Collections, 2001. (accessed March 1, 2012).
  9. 9.0 9.1 9.2 9.3 9.4 . Association of Universities and Colleges of Canada, "Canada - U.S. Copyright Comparison." Last modified April 15, 2005. (accessed March 1, 2012).
  10. 10.0 10.1 10.2 Kell, Chase. "Bill C-11 has disgruntled Canadians taking action." Yahoo News, February 09, 2012. (accessed March 1, 2012).
  11. 11.0 11.1 Geist, Michael. "Liberals Launch Bill C-11 Petition Calling for Balanced Digital Lock Rules." Michael Geist(blog), March 10, 2012. (accessed March 10, 2012).
  12. "Speak Out on Copyright." Last modified February 1, 2012. (accessed March 1, 2012).
  13. 13.0 13.1 13.2 13.3 13.4 13.5 The University of British Columbia, "Bill C-11: The Copyright Modernization Act." (accessed March 1, 2012).