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Canada not the US when it comes to copyright—or anything else. This should be a statement of the obvious, but in fact all too often Canadians get confused about how copyright (and other) laws work in this country because of the overwhelming influence of US entertainment and, to a lesser extent, US media content in Canada. For example, during the truckers convoy to Ottawa a couple of years ago, some of those arrested protested that they weren’t read their “Miranda rights”. (Right to remain silent, etc). They’d been watching too much US television. Miranda rights do not apply in Canada although Canada does have similar “Charter rights” that include the right to be informed of the alleged offence and the right to counsel. Likewise, in the area of copyright, Canadians will often refer to “fair use”, even though the US fair use doctrine does not apply in Canada. In particular, the application of a “transformation” test by US courts as one consideration in determining fair use has no applicability in Canadian law. Just as Canada has a similar but not identical concept to Miranda rights, it also has user exceptions to copyright through the fair dealing exceptions specified in the Copyright Act. However, while there are many similarities, fair dealing and fair use have some important differences, in Canada as elsewhere.
The Public Domain in Canada and the US: Not the Same
Yet one more important difference between Canada and the US is the date on which copyright protection expires, allowing various works to fall into the public domain. Although the term of copyright protection in Canada is now “life of the author plus 70 years”, the same as in the US since the extension of Canada’s term of protection at the end of 2022 as a result of commitments Canada made in the CUSMA/USMCA, there are still many works protected by copyright in the US that are in the public domain in Canada. This is primarily because of Canada’s shorter “life plus 50 year term” that was in force for many years until the recent change. The extension of copyright protection in Canada in 2022 does not apply retroactively to works already in the public domain. A few years ago I wrote a blog post about F. Scott Fitzgerald’s The Great Gatsby, recounting how it was in the public domain in Canada yet still under copyright protection in the US. As a result, Canadian publishers could freely reprint the work, and some did, like Broadview Press, but they could not legally sell it in the US.
The Historical Context
This harkens back to the bad old days in the 19th century when Canadian printers would frequently publish US works without obtaining rights from the author since at the time US registered works enjoyed copyright protection only within the United States, just as British or Canadian works were protected only in Britain and its possessions. Thus, reprinting US works in Canada without permission from the US rightsholder was legal. What was not legal was the smuggling of these Canadian-printed US works back into the US at cut-rate prices, a situation that led Mark Twain to lament his mistrust of “Canadian pirates”. (Just to be clear, I am not suggesting that modern Canadian publishers of US works that are in the public domain in Canada but not in the US are engaged in illicit supply of those books to US readers). At the time this Canadian “piracy” was going on, US printers were treating British works similarly, freely reprinting them for sale in the US without having obtained or needing to obtain the rights, as I discussed in this blog post. Because of its geographical position adjacent to the US yet still subject to certain imperial laws, Canada found itself caught in the crossfire of the Anglo-American copyright wars of the late 19th century. With the signing of the Berne Convention in 1886, and the passage of legislation in the US in 1891 that provided for reciprocal recognition of national copyrights under certain conditions, this problem was largely resolved.
Anne of Green Gables
While at the present time copyright protection in the US is generally longer than in Canada for the same works, at times Canadian copyrights have been longer than those in the US. This is particularly true of that quintessential early Canadian work, Anne of Green Gables. If you will allow me to go down the copyright nerd rabbit hole for a second, I will explain how this occurred.
Lucy Maude Montgomery’s work was published first in the United States in 1908. Like many Canadian writers at the time, she thought her chances of getting published south of the border were better than in Canada. Under then US law (the Copyright Act of 1909), the work was entitled to 28 years of protection from date of publication, subject to a further 28 years of protection if the rights-holder renewed the rights in the 28th year. The book’s publisher, L.C. Page & Co. of Boston, was assiduous in protecting its rights and ensured that the term of protection was extended, which provided protection until 1964. Although the work fell into the public domain in the US in that year, it was given another lease on its copyright life when the US Copyright Act of 1976 came into effect on January 1, 1978. That legislation converted the US term of protection for books from a set period after publication to the more widely accepted rule of author’s life plus a specified number of years, in this case fifty.
The Berne Convention countries had recommended “life plus 50” as the minimum standard of protection in 1908 and incorporated it as a requirement in 1948. The US now joined this consensus (although it did not join Berne at that time). The new US “life plus 50” rules applied to all works created after January 1, 1978, but what to do about earlier works? Pre-1978 works were subject only to a 56 year term of protection after publication, so Congress extended the period of supplementary protection under the old legislation (28 years) by an additional 19 years, making the full term for a registered older work 75 years (28 for the original term and 47 for the supplementary term) from the date of publication, reviving lapsed copyright in a number of cases where the copyright had expired relatively recently. This 19-year extension provided copyright protection to the 1908 Anne of Green Gables up to 1983 in the US. Meanwhile, Canada had been following the Berne “life plus 50” standard since the early 1920s. Thus, the copyright on Anne of Green Gables (or any of Montgomery’s other works) in Canada was protected until January 1, 1993, almost a decade longer than in the US, Montgomery having died in April 1942.
The lapse of copyright on Anne in both the US and Canada has not, however, stopped the Montgomery estate and the Government of Prince Edward Island, which has set up the Anne Authority, from vigorously pursuing legal action against any usurpers of the Anne trademarks that they have registered. A couple of years ago they threatened the US producers of an Anne spin off, a musical called Anne of Green Gables: A New Musical, with a lawsuit for trademark violation. The producers countersued, claiming that Anne was as much in the public domain as Shakespeare. In the end, both sides dropped their suits and the musical continued in production.
The US Extends its Term in 1998: Why?
While Anne’s copyright lapsed in Canada later than in the US, ever since the US extended its terms of copyright from “life plus 50” to “life plus 70” in 1998, the shoe is normally on the other foot. There are critics in the US that claim Congress passed the extension to satisfy the Walt Disney Company, given that some of Disney’s corporate copyrights were close to expiring, notably the copyright on Mickey Mouse. Steamboat Willie first appeared in 1928. As I wrote in a blog post a couple of years ago, (The Mickey Mouse Copyright Extension Myth: A Convenient “Straw Man” to Attack), that is hogwash. Of course, Disney was not opposed to extending the term of copyright protection, but whatever lobbying it did was not the primary reason for the US action. The main motivation was to bring US copyright into line with that of the EU. The EU had harmonized its copyright term (which varied widely between member states) to a common “life plus 70” standard in 1993. Since the extra 20 years were beyond the required Berne minimum, the EU was free to apply a reciprocity clause, which it did in order to encourage other countries to follow its example. It would extend the longer period of protection to non-EU authors only if EU authors received similar protection in the other country. This was a permitted derogation from the normal national treatment rule in Berne whereby any member state was required to accord a foreign copyright holder equivalent treatment to that provided to its own nationals.
The adding of an additional 20 years to US copyright protection had an additional wrinkle beyond going from “life plus 50” to “life plus 70” for post-1978 works. When the US changed its term to life of the author plus 50 years back in 1978 , recall that it instituted a provision for works protected under the old regime (where protection began from the date of publication) by rounding up the period of protection post-publication to 75 years. When it added 20 years to the “life plus” formula in 1998, Congress also added 20 years to the protection afforded works published pre-1978. Thus, these earlier works were now protected for 95 years from the date of publication.
Steamboat Willie
This leads us to Steamboat Willie and the frenzy that took place amongst public domain advocates when Willie entered the public domain on January 1 of this year. Almost every US broadcast and media outlet had a lead article on this “amazing development”, but Canadians were not spared. The CBC, Globe and Mail, Toronto Star, and others–even some Canadian law firms—breathlessly touted the entry of the mouse into the public domain, without bothering to even reference how Canadian copyright law applied. Some of them simply picked up a syndicated AP story, but none bothered to mention the salient but apparently unreportable fact that Willie was already in the public domain in Canada–and had been for two years! Apparently nobody noticed.
All the nonsense about works entering the US public domain on January 1 each year is designed to promote the narrative that these works have somehow been released from bondage, and that new explosions of creativity using the stories and characters are about to appear. Winnie the Pooh was the star of the show back in 2022, with the CBC grabbing the story, neglecting to mention that author A.A. Milne’s works had been in the public domain in Canada since 2007, (50 years after Milne’s passing). It’s total rubbish, with the new “creative works” emerging from this process leaving more than a little to be desired.
Why was Willie in the Public Domain in Canada but not the US?
This is yet another copyright rabbit hole to explore. Hang on. Willie entered the public domain in the US in 2024 because of the 95 year rule mentioned earlier. Pre-1978 published US works are subject to this rule (unless the copyright was not renewed in the 28th year). Thus, Steamboat Willie, having first appeared in 1928, entered the public domain in the US this January. But Canada does not apply this rule. Its term of protection is based on the life of the author or authors (in the case of joint authorship). In the case of Steamboat Willie, there were two co-authors who held the copyright, Walt Disney and Ub Iwerks.
In his blog post “Mickey Mouse and the public domain”, copyright officer at Simon Fraser University in Vancouver, Donald Taylor, takes us through the details. Disney and Iwerks were the creators of the character. Disney died in 1966, Iwerks (a noted animator who created many Disney characters), died in 1971. With joint authorship, the term is based on the lifespan of the last survivor. Thus, in Canada, under the “life plus 50” rule that prevailed until the end of 2022, Steamboat Willie went into the Canadian public domain on January 1, 2022. Had Iwerks not died until 1972, the extended term that became effective in Canada on December 30, 2022 would have protected Willie in Canada until 2042. I wonder what the Canadian media outlets who prattled on earlier this year about Willie’s public domain entry on January 1 would have had to say then?
Willie and the Rule of the Shorter Term in Europe
There is even one more wrinkle in this, as pointed out by Taylor. Some countries have been applying the “life plus 70” rule for many years. In Germany it has been in effect since 1971, therefore in theory Willie should be protected in Germany until 2042. However, under something called the “rule of the shorter term”, (which allows the EU to apply the “shorter term” i.e. “life plus 50” to countries that do not match the EU’s “life plus 70” term), there is a provision that if a work enters the public domain in the country of its origin, then it will also be in the public domain of a country implementing the “rule of the shorter term.” Brazil does not apply this rule, so Willie is protected there until 2042, but he is now in the public domain in Germany. Incidentally, the EU’s application of the shorter term rule (the US does not apply it) provided additional benefits for Canadian authors when Canada extended its term in 2022, since Canadian works in the EU now get full national treatment, i.e. equal treatment with EU authors of “life plus 70”. What a rabbit hole!
When it comes to copyright, there is always something new to explore, a new wrinkle, a rabbit hole if you will. If there is one lesson that we can draw from all this, it’s don’t assume that what applies in the US when it comes to copyright (or any other law, for that matter) has any direct bearing on the situation in Canada, no matter what you see on TV, read in the Canadian press or hear on the CBC.
© Hugh Stephens 2024. All Rights Reserved.
