Canadian Copyright in Contrast to American Copyright

Copyright in Canada has been a hard-fought issue from many sides. The United States Government accuses Canada of being a haven for piracy 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. This article deals with Canadian Copyright as compared to the United States and examines the fundamental differences between them since they are so often compared to each other. 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 into line with American copyright law.

Primary Legal Similarities Between Canadian Copyright and American Copyright

Although there are not many similarities between Canadian and American (United States) copyright, the fundamental principles underlying the two are fundamentally the same. Copyright in both countries is immediately granted to the original owner of the work immediately upon creation of the work. This protection is limited to the original works of the author and not to derivative works unless also created by the original author. There is no registration required. 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. 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. 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. 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. Titles, with few exceptions in Canada, are not copyrightable as well as any publication that involves pure data.

Primary Legal Differences Between Canadian Copyright and American Copyright Law

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. As well, in Canada, it is required by law that “fair dealing” for the purpose of criticism, news reporting be cited. 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.

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. 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 illegal. 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 states has this law, it is unclear in how effective it has been in combatting piracy. 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. In the States ISP’s have safe harbour so long as they do not actively sanction or improve access to piracy. Unlike the States, in which the FBI is involved in tracking down piracy, the RCMP of Canada have declared that they have no intentions of going after individual file sharers.

In the States, when under employment, anything work that you create is typically owned by the employer. This is called “work for hire.” However, in Canada, the author, regardless of whether under employment or contract keeps the copyright for themselves. This is a major factor in hiring in Canada since every employer needs to make sure that they have 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. This differs from the States again since the States does not copyright State produced work.

In the educational world, the differences of laws have major ramifications for teachers. In the States journal articles may be given to students in either a paper or an electronic version for no extra charge or permission from the copyright owner, this assists in bringing tablets into education. Whereas 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. In the States 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. Once again, in Canada teachers are forbidden to unless they have the permission (license) of the copyright owner. Finally, in terms of photocopying, teachers in the State can photocopy anything they want for mass distribution in a classroom whereas in Canada they have to pay payment to copyright owners through a collective.

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. 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. Some have found that this report is industry driven which, itself, has had a long time issue with Canadian copyright. Over the past three years several iterations of copyright bills have been passed through the Canadian Government, yet this 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. This bill includes major changes to DRM, educational rights, expansion of fair dealing, format shifting. 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. 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. 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.

Fair dealing would also be expanded in Bill-C11 to be more encompassing. This would mean that uses under parody, satire, and educational uses would be expanded to be allowed; as well as backup copies would officially be legal to keep. 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. 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.

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. ISP’s are also now required to inform their consumers of a copyright owners desire to protect their content when the copyright owner contacts the ISP with copyright infringement. The ISP in turn forwards this information to the consumer and store the consumer IP information for a period of 6 months; this is extended to 12 months if court action appears.

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