Canadian vs. US Copyright protection
Disclaimer: The information provided in this factsheet is meant as an educational resource only and should not be construed as legal advice.
- Registering your Copyright:
- To register your copyright with the US Copyright Office you need to fill in an application form, pay a filing fee, and send a copy of the work that is to be registered.
- To register your copyright with the Canadian Intellectual Property Office, you need to create a “My Canada Business Account” to access an online e-filing application, fill out the application and pay a filing fee. The Canadian Copyright Office does not review or assess a copy of your work.
- In the US there is copyright infringement if a third party uses (i.e. reproduces, distributes, copies, publicly displays, etc.) all or a substantial part of the content protected by copyright in a way that violates rights granted in the Copyright Act.
- The determination of whether a “substantial part” of the content is infringed on is generally interpreted in a flexible way depending on the circumstance.
- In Canada, you can sue a third party who infringes your copyright and claim statutory damages even if the copyright is not registered.
- Registration is still recommended in Canada, since it creates a public record and gives a presumption of ownership.
- According to the Canadian Copyright Act, you are infringing copyright if you are reproducing the work of the copyright owner in its entirety or a “substantial part” thereof.
- The Canadian Supreme Court noted in the case Cinar Corporation v. Robinson that “substantial” is a “flexible notion”, which is “a matter of fact and degree”.
- A qualitative and holistic approach must be adopted to assess this (i.e. all the copied features must be considered cumulatively), and a piecemeal approach should be avoided. However, if the differences are so great that the work viewed as a whole is not an imitation but rather a new and original work, then there is no infringement.
Example 2: In 2015 Jacobus Rentmeester filed a lawsuit against Nike for copyright infringement. Rentmeester argued that Nike infringed his copyright in this photograph of Michael Jordan when it commissioned its own photograph of Jordan and then used that photo to create its “Jumpman” logo. According to Rentmeester the distinctions between his and Nike’s images were minor, and all the original elements were copied by Nike. Nike argued that Rentmeester “cannot claim copyright over the “idea” of Michael Jordan dunking a basketball.” The Appeals court ruled that there is no copyright infringement by Nike – the two photographs are not “substantially similar” since there were objective differences in selection and arrangement of elements between the two photos. Specifically, the court held that the pose itself was not eligible for copyright protection and that protection could only be obtained for the way the pose was expressed, including the camera angle, timing, and shutter speed chosen.
This assessment of “substantial part” in the framework of copyright infringement in Canada seems to be quite different from the one made in the US judgement in the case Nike-Rentmeester. According to this last case you now apparently need to only change a few aspects of a photo to be legally protected as far as copyright goes, while according to Canadian standards a holistic approach is applied to determine whether there is copyright infringement. The chances are therefore rather low that a Canadian court would refrain from applying copyright protection to the “jumpman” pose on the photograph- especially given that the original photographer told Michael Jordan which pose to take.
- Displaying your copyright ownership:
- We recommend displaying copyright notice when sharing a creative original work with the public. This notifies third parties of your copyright.
- The copyright notice generally consists of three elements: An indication of copyright (this can be the symbol ©, the word "Copyright", or the abbreviation "Copr.”), the year of first publication of the work, and the name of the owner of the copyright.
Key considerations for Canadian companies:
- Consider obtaining a copyright registration in the US ideally at the same time as you intend to make your work public. This provides you with a public record of ownership and will allow you to sue and obtain statutory damages in case of copyright infringement.
- According to Kim Capiau, Registered Trademark Agent and IP Analytics expert at Stratford Intellectual Property, “A timely copyright registration before use is a prerequisite for effectively enforcing your copyright in the US.”
- Use a proper copyright notice when sharing your work.
- Keep in mind that it is always a good idea to seek legal advice before deciding how to deal with your Intellectual Property (IP). This will help you make an informed decision and know what to expect.
Additional information:
- For information about IP protection in the US, please see the Canadian Intellectual Property Office’s publication on Doing business abroad: Protecting your IP in the United States
- For material relating to the export of goods to the US, please see the Doing Business in the United States webpage
- For more information on going global with your IP, visit ca/export-ip
