Comparison of
Canadian and U.S. copyright statutes
"Moral rights" versus amoral rights, "fair dealing" versus "fair use":
A comparison of the copyright statutes of Canada and the United States
by Laura Hlavach
doctorale student
Indiana University's School of Journalism
421 Somerbe Place
Bloomington, IN 47403
home: (812) 339-4261
e-mail: [log in to unmask]
Submitted April 1, 1999
to the Research section of the Law Division,
AEJMC
Abstract
The Canadian "fair dealing" copyright provision is not as broad as the U.S.
"fair use" doctrine, but Canadian "moral rights" provisions are broader. Why do
these important distinctions exist? What is the potential impact on these
neighbors' shared intellectual property markets? This paper examines the
historical development of the U.S. and Canadian copyright acts and the cultural
bases for these differences. These distinctions subtly reflect an international
split on how copyrights should be conceived.
In the United States, a controversial "rap" musical group, 2 Live Crew, wrote
and performed a parody of Roy Orbison's 1964 rock hit, "Oh, Pretty Woman."
Clearly, the woman described by 2 Live Crew did not resemble the romantic female
image Orbison strove to create. Enough of 2 Live Crew's song, however,
sufficiently resembled Orbison's hit so that: 1. audience members clearly could
make the parody connection, and 2. the current owners of copyrights to Orbison's
song sued. Ultimately, the U.S. Supreme Court concluded that 2 Live Crew's use
of portions of Orbison's song was a "fair use" as outlined in section 107 of the
U.S. Copyright Act.[1] The Court reasoned, in part, that economic market value
of Orbison's song had not been harmed since the two versions of the song clearly
appealed to different consumers. If no economic damage had been done, what
complaint did the "Pretty Woman" owners really have? None, or at least none
recognized by the philosophy behind U.S. copyright law, which even today does
not include any "moral rights" except for visual artists.
In Canada, the copyright song is not played the same way. The Canadian "fair
dealing" provision[2] is not as broad as the United States' "fair use"
provision.[3] The Canadian provisions outlining "moral rights" and the "nature
of right of integrity"[4] apply to a broader range of works than the limited
U.S. "moral rights" provision protecting visual artists.[5] The outcome of the
Campbell case most likely would have been completely opposite if Canadian
courts would have had jurisdiction over the matter.
Why do such distinctions exist between the laws of two peoples who both started
as British subjects under British common law? What is the potential
communication impact considering the intellectual property markets shared across
the Canadian/U.S. border? What are the legal and cultural bases for the
differences between these two copyright approaches?
This paper will examine the historical development of the U.S. and Canadian
copyright acts and focus on the two major areas where the countries seem to
apply different policy goals: 1. moral rights and 2. the Canadian copyright
defense of "fair dealing" versus the U.S. defense of "fair use." To some extent,
the distinctions between Canada and the United States on these two issues subtly
reflect what some commentators perceive to be a two-way, international split on
how copyrights should be conceived. This paper will describe this international
split before its analysis of the U.S./ Canadian comparison.
The relation of copyright laws and national culture
All laws in some way reflect the values and culture of the society that
produced them. For this reason, comparison of an area of law from the
perspective of two countries is a useful way of examining the values and culture
of those two countries. This is particularly true in the area of copyrights, a
field of law integrally tied to culture. As U.S. legal scholar Paul Goldstein
writes, "Copyright touches directly on conflicting cultural, economic, and
political values - the desire for art and literature; a commitment to free
markets; traditions of free speech."[6]
On one hand, copyright law is the engine that helps drive development of
culture. Several Canadian legislators recognized that economically, copyright
law "helps reinforce and sustain those who develop and nurture the cultural
goods that the nation approves of and enjoys."[7] In a 1985 report, members of a
Canada House of Commons sub-committee called copyright a "tool of cultural
policy ... indispensable to any cultural policy that is based on diversity,
freedom of expression and the creation of works which express our culture."[8]
The range of cultural arenas copyright laws touch is vast, "as varied as the
tastes present in the communities making up the nation."[9] In both Canada and
the United States, copyright cases involve a vast array of cultural products,
from cartoons and cookbooks to college texts and computer programs.[10]
Copyright laws not only have an impact on the creators of culture, but on the
consumers and the economics of their transactions. As several Canadian
legislators noted, "Copyright affects everybody. It gives basic protection to
individual creators who work with their minds and their imaginations. ...
Copyright is also big business."[11] Just after World War II, "intellectual
property" (including patents, trademarks and copyrights) made up less than 10
percent of all U.S. exports. In 1994, some experts estimated that it made up
more than 50 percent of all U.S. exports.[12] As of 1985, almost 500,000
Canadians were directly employed in broadcasting, book publishing, journalism,
film and television production, music publishing, sound recording, and
advertising. Canadian legislators recognized that "[a]ll these industries depend
on the law of copyright to protect the works that are the basis of their
commercial existence."[13] Goldstein called U.S. copyright unique in how it
supplies the framework between producers and consumers, thereby connecting
supply with demand.[14]
For almost three centuries, copyright laws throughout the world have helped
order markets for information and entertainment. According to Goldstein, no
other body of law "occupies this special place in ordering a nation's culture,
high and low, and in helping to preserve authorial autonomy."[15] This special
role for copyright law is increasingly important as technology quickly alters
and expands the means and reach of communication.[16] Copyright law, primarily,
will determine who pays for the bright new cultural world. Legislators trying to
draft an effective domestic copyright law in both the United States and in
Canada face additional challenges raised by a complicated "patchwork quilt" of
international copyright law and the increase of international trade in cultural
products.[17]
The ease with which communication and cultural products cross international
borders is part of what makes a comparison of the copyright laws of Canada[18]
and the United States[19] fruitful. The importance of trade between two nations
with such a lengthy border also raises the stakes on copyright issues. Further,
because the legal systems of the two countries share the same British common law
heritage, their copyright laws could be quite similar. However, important
distinctions between the two laws exist, particularly in some key areas of
policy and copyright theory.
Internationally, two copyright "cultures"
What should copyright law protect? Who should it protect? As Goldstein asks:
"Is copyright an author's right, giving the originator a claim on every market
in which consumers will pay for copies? Or is it a user's right, entitling the
user to enjoy a copy free unless the author and his publisher can show that, if
they are not paid, they will have no incentive to create and publish new
works?"[20] These largely unresolved questions trigger debate reflecting
different cultural perspectives. Goldstein described an insightful exchange that
typifies the international split of opinion. African scholars were arguing that
copyright should protect indigenous folklore, often hundreds of years old,
against appropriation by publishers in industrialized countries. "When an
American copyright expert challenged an Egyptian folklore advocate - 'Surely,
folklore is in the public domain' - the Egyptian replied icily, 'Public domain
is a very Western concept.'"[21] Which concept of copyright prevails depends on
many factors, especially a nation's cultural attitudes.[22]
Several legal scholars divide the world into two camps based on different
copyright philosophies. One camp is generally represented by France (and other
countries following the European continental civil law tradition) and the other
camp by the British-heritage common law nations, particularly the United States.
Each camp seems to justify its copyright laws using a different theoretical
notion of what "right" should be protected. These theoretical differences are
often reflected in the way each camp accepts or rejects the French notion of
"moral rights" or the U.S. doctrine of "fair use."[23] According to Goldstein,
the European justification for copyright law focuses on an author's perceived
"natural right" to control use of his or her work. He notes that in many
European nations, the name of statutes protecting literary and artistic works
translates to "author's rights," not "copyright" - droit d'auteur in France,
Urheberrecht in Germany, diritto d'autore in Italy, derecho de autor in
Spain.[24] These terminology distinctions are more than word play, according to
U.S. legal scholar Marshall A. Leaffer. These distinctions reveal "a fundamental
difference in attitude."[25] The European civil law tradition ties "author's
rights" to the author's persona. Under this tradition, Leaffer explains, an
author's work is "an extension of his or her personality which springs into
existence by a personal act of creation. ... [A]n author is deemed to have a
moral entitlement to control and exploit the product of his or her
intellect."[26]
While the civil law tradition views "author's rights" as tied to the author's
persona, the common law "copyright" approach is inherently impersonal and
removed from the author. According to Leaffer, U.S. copyright law "connotes a
negative right, the right of the owner to prevent copying of this work."[27]
This copyright approach provides financial rewards to someone producing the work
and its ultimate goal is to encourage production and thereby enhance public
welfare. Leaffer sees this goal as essentially economic[28] as does Goldstein:
"[T]he American culture of copyright centers on a hard, utilitarian calculus
that balances the needs of copyright producers against the needs of copyright
consumers, a calculus that appears to leave authors at the margins of the
equation."[29]
This two-camp view of copyright is somewhat simplistic. It ignores the
similarities between various copyright acts. It ignores divisions of legal
theoretical thought within nations.[30] It ignores decisions made by lawmakers
not out of policy concerns but out of economic concerns about trade issues. It
assumes that the framers of the first British copyright law had a theoretical
justification in mind when they created the Statute of Anne in 1731, an
assumption challenged by at least one legal scholar, Richard Wincor. "Early
copyright was engendered by technology, an unenlightened reflex to the invention
of printing. Nobody sat around puffing on pipes and raising the great question
why products of the mind ought to attract lesser protection than things
corporeal. ... [B]ooks in print opened or betrayed a legal void which had to be
filled."[31]
However, the two-camp view does seem to adequately describe some aspects of
international copyright positions. While European, Asian, and Latin American
nations have copyright laws that in many ways seem similar to U.S. law, their
copyright laws are founded on the natural rights philosophy.[32]
Some aspects of the French copyright philosophy will be echoed in Canadian
legislative history, discussed below, including the French doctrine of moral
right - droit moral - which gives authors control over what they create by
allowing them to prohibit anyone, even their own publishers, from changing their
works in any way that might affect their artistic reputation. This French
concept of moral rights is intended to protect the "intimate bond" between an
author's work and his or her personality.[33]
For the most part, the United States historically has not followed the French
lead, especially in regards to the scope of protection given moral rights, as
will be discussed in further detail below. Instead, the U.S. position on moral
rights seems to reflect its own national cultural perspective and the economic
focus of its copyright laws. As Goldstein noted: "When Congressman Richard
Gephardt introduced a bill in 1987 to prohibit the unauthorized alteration of
motion pictures, including their colorization, most observers correctly
predicted that the bill would not pass. In 1989, in the United States at least,
Ted Turner could say, 'I think the movies look better in color, pal, and they're
my movies.'"[34]
Historical background of U.S. and Canadian copyright laws
Some of the early influences on U.S. and Canadian copyright laws in part
reflect the international two-camp approach described above. However, even this
international dual-nature took some years to develop. At first, copyright laws
in both France and England came as responses to government licensing, royal
monopolies and state literary censorship.[35] In 1476, William Caxton introduced
the printing press into England. In 1534, a royal decree prohibited any
publishing without a license and approval from official censors. The Crown gave
a London guild of printers and booksellers, called the Stationer's Company, a
publishing monopoly. In 1695, official licensing to publish expired. Fearing new
competition, the Stationer's Company persuaded Parliament to pass its first
copyright act, called the Statute of Anne, in 1710. This statute gave the
stationers rights in work already printed; rights in new works, however, were
granted to the authors.[36]
In the beginning of copyright, as now, technological advances such as the
printing press helped create the need for copyright laws. The development of a
mass reading audience, Goldstein explained, created the need for a copyright
mechanism. "[A]s movable type brought literature within the reach of everyone,
and as the preferences of a few royal, aristocratic, or simply wealthy patrons
were supplanted by the accumulated demands of mass consumers, a legal mechanism
was needed to connect consumers to authors and publishers commercially."[37]
At first, copyrights addressed only the ability to copy written works and aimed
only at stopping unauthorized exact replications. Starting in the mid-nineteenth
century, protection was expanded. Copyright owners could stop publication not
only of verbatim copies but also of imitations, adaptations and
translations.[38] The French focus on author-centered moral rights arrived
later, developing gradually over the course of the nineteenth century.[39]
When the United States first began drafting its copyright law, it looked to the
British Statute of Anne. Establishment of copyright law came quickly to the new
republic. By 1786, all 13 states except Delaware had their own copyright laws.
The U.S. Constitution of 1787 set out Congressional jurisdiction: "To promote
the progress of science and useful arts, by securing for limited times, to
authors and inventors, the exclusive right to their respective writings and
discoveries."[40] When Congress in 1790 passed the first U.S. copyright law, it
rejected the French approach of granting copyright protection without regard to
any formality. Congress instead modeled its 1790 Act on the British Statute of
Anne, lifting almost verbatim the British registration, duration term, and
notice requirements.[41] Some revisions to the U.S. act were made in 1831 and
1870, but the first comprehensive codification of U.S. copyright law was the
1909 act, which still included registration and notice formalities.[42]
In drafting its early copyright law, Canada borrowed from the United Kingdom
and the United States, but with one "provincial" eye on France. In 1814, the
U.K.'s Statute of Anne was extended to the British dominions, but it required
first publication and registration in the United Kingdom. In 1832, the Lower
Canada province (despite its heritage of French civil law) adopted a copyright
law modeled on the U.S. 1831 copyright revision. In 1867, the British North
America Act gave the federal Canadian Parliament power to pass copyright
legislation, which it did in 1868, following the Canadian provincial language.
In 1887, the United Kingdom became one of the first members of the
(international) Berne Copyright Convention, bringing Canada and other U.K.
dominions into Berne. There have been several major revisions to the Berne
Convention (at Berlin in 1908, Rome in 1928, Paris in 1971). Sometimes Canada
has adjusted its law to adhere to the new Berne provisions, other times not
immediately. Canada adopted a new copyright statute in 1921, which largely
copied the U.K. Act of 1911, ended Canadian reliance on U.S. statutory
precedent, and allowed Canada to adhere to the 1908 revision to Berne. Through
1931 amendments, Canada adhered to the 1928 Rome revision of Berne.[43]
Part of Canada's willingness to follow a more French path with its copyright
law has come from pressure and encouragement from Quebec. Also, Quebec's civil
code (influenced by Quebec's French heritage) discusses protection of privacy
interests akin to the "appropriation" tort in the United States. This has led
some scholars to speculate that the Quebec civil code could be used to protect
some quasi-copyright interests. The language of the code demonstrates some
sympathy toward the French attitudes about copyrights generally.[44]
Reform in Canada in late 1980s and early 1990s, and moral rights
Recently, Canadian copyright has required some changes to satisfy concerns
expressed during recent trade negotiations, including NAFTA, and to keep up with
changing technology. "Canada's [1921] Copyright Act has existed for more than
60 years. It is imperative that we revise this antiquated copyright law. ...
When the Act was drafted, computers, photocopiers, satellites, cable television
and video cassette recorders were unknown."[45] In the discussion of these
reforms, Canadian legislators expressed goals echoing the French emphasis on the
rights of the author. "[T]he revision process must not only cope with the
problems caused by developments since 1924; a new law must also keep an eye to
the quickening pace of the use and exploitation of intellectual property ... .
The constantly changing technology has drastically altered the relationship
between creators and the users of their works in today's society."[46]
Formal discussions in Canada about the need to revise the copyright act began
in the 1950s. A Canadian commission report in 1957 was heavily influenced by the
United Kingdom's 1956 revisions to its own copyright act; France also revised
its copyright act, in 1957. However, the Canadian Parliament took no action on
this 1957 report. Nor did it directly act on a 1971 report by the Economic
Council of Canada, which focused on consumers' interests and was criticized by
two members for not being more pro-creator. After this 1971 report, the Minister
of Consumer and Corporate Affairs formed a study group, which issued a 1977
report that was "unabashedly pro-creator." [47] Between 1980 and 1983, the
Department of Consumer and Corporate Affairs published 14 studies on selected
copyright issues.[48] Building on the three decades of research, the Department
of Consumer and Corporate Affairs and the Department of Communications in 1984
issued a "white paper" on proposed copyright revisions.[49] However, following a
change in government, the 1984 Canadian White Paper "was referred to as a
document which did not necessarily embody government policy."[50]
In its 1985 report, the Sub-Committee on the Revision of Copyright,[51] noted
that it "found favour" with the "general thrust" of the 1984 White Paper.[52]
However, clearly on some issues (such as "fair use"/ "fair dealing," which will
be discussed below) the 1985 sub-committee report was far more "pro-creator"
than the 1984 White Paper. The 1985 sub-committee report outlined its six
overriding objectives:
1. Give more emphasis and reward to creative activity;
2. Clarify and extend moral rights;
3. Make the application of copyright principles as general as possible;
4. Avoid improper extensions of copyright protection;
5. Recognize the major importance of cultural enterprises.[53]
"[W]hat Canada does in the revision of copyright will show how much value it
attaches to the contribution of creators to the national life."[54]
The 1985 sub-committee saw revision of the Copyright Act as "an occasion to
make a statement of our pride in the achievement of Canadian authors and
performers and in the coming of age of this country as a place where cultural
pursuits and creative activity are fully recognized." [55] The sub-committee
recommended more than a symbolic statement; "such symbols have meaning only if
they are reflected in the income-earning potential of individual authors,
composers, performers, and the many other creative individuals working in
Canada."[56] "Creation is not, generally speaking, sufficiently economically
rewarding .... Given the large number of individuals who are actively involved
in creative activity, there will be few who can make a living out of it and
fewer still who can derive a large income. Copyright cannot remedy this
situation but it can help."[57] "[B]ecause of the special contributions creators
make to Canadian society, they must be fairly rewarded for the constantly
increasing number and variety of uses of their work."[58]
The subcommittee report quoted a Nov. 8, 1984 statement issued by Minister of
Finance Michael H. Wilson, who noted that Canada's Copyright Act "has been
overtaken by new technologies. This has created ambiguities and uncertainties
and has, in some cases, left Canadian copyright owners with less protection or
compensation than would be available to them in other countries which have more
modern copyright laws."[59] Wilson called this "a real obstacle to economic
growth, particularly in an economy which is increasingly service-oriented, with
a growing role for the creation, transmission and processing of information, and
in which automation may be a powerful source of productivity gains."[60]
When the act was significantly modified in 1988, the extent of Canadian moral
rights was clarified.[61] Canada also passed copyright amendments in 1993,
largely provisions needed by Canada to meet the terms of NAFTA.[62]
The moral rights available under Canadian law today are far more favorable to
creators than the limited moral rights under U.S. law. (The text of Canadian
moral rights provisions are excerpted in Appendix A.) Canadian law protects the
moral rights of any type of creator. The "right of integrity" protects the honor
or reputation of the author when his work has been distorted, mutilated or
modified or when the work has been used in association with a product, service,
cause or institution. Canadian creators also have the right to have their names
associated with their work or to remain anonymous, if desired. In Canada, the
duration period for moral rights is identical with the duration period for the
creator's other, economic rights in the work. Unlike economic rights, Canadian
authors cannot assign their moral right to someone else.[63]
Reform in the United States - the 1976 act, the Berne Convention Implementation
Act of 1988, and moral rights
Similar concerns about technological advances and international copyright
inequities also spurred the United States to update its copyright act.
Essentially, the United States in these two acts made it easier for "authors" to
secure and protect copyrights. The United States eased restrictions that had
required that detailed formalities (of notice, registration and deposit) be met
before someone had copyright protection. It was the United States' earlier
refusal to reject such formalities that kept it out of the Berne Convention.
Pressure for the United States to adhere to the Berne Convention developed again
when the 1909 Copyright Act was revised in 1976. The 1976 revisions loosened the
notice requirement and set the duration term for copyrights at the Berne minimum
of the author's life plus fifty years. Yet, the United States still did not meet
the Berne conditions. The failure of the United States to join Berne, according
to Goldstein, turned the United States into a "copyright outcast" and undermined
efforts to negotiate trade agreements protecting U.S. intellectual property in
other countries.[64]
Enactment of the [U.S.] Berne Convention Implementation Act of 1988, [65](which
took effect March 1, 1989,) enabled the United States to adhere to the Berne
Convention of 1886, as revised. [66] To adhere to the Berne Convention, a
nation's domestic law must provide "Berne Convention works" with at least the
minimum protections required by the Berne Convention.[67] To join the
convention, the United States generally had to "minimize formalities and amplify
protection."[68] To adhere to the convention and qualify for Berne Convention
protection, a nation's domestic law must meet two essential conditions: 1.
reciprocal national treatment - Berne Union nation members must extend whatever
copyrights their domestic laws grant to their citizens to the citizens of other
Berne Union nations, as well as the rights "specially granted" by the
convention. 2. Enjoyment and the exercise of these rights could not be subject
to any formal requirements.[69] It was primarily this second condition that had
prevented the United States from participating in Berne.[70]
Participation by the United States in the Berne Convention was further
complicated by an obligation added in the 1928 Rome revision to the Berne
Convention - Article 6bis, moral rights: "Independently of the author's economic
rights, and even after the transfer of the said rights, the author shall have
the right to claim authorship of the work and to object to any distortion,
mutilation or other modification of, or other derogatory action in relation to,
the said work, which would be prejudicial to his honor or reputation."[71] At
first, U.S. publishers and movie producers were so strongly opposed to any moral
rights clause that United States ratification of the Berne Convention seemed
impossible.[72]
However, in the Berne Convention Implementation Act of 1988, Congress made some
major changes to the Copyright Act of 1976, enough to satisfy the Berne
requirements. Under the 1976 Act, a work received copyright protection only if
it had a visually perceptible and legally sufficient copyright notice (such as
Copyright John Q. Doe 1977). The 1988 act eliminated this mandatory notice
requirement for works published after March 1, 1989.[73] Also, the 1976 act
required that works be registered with the U.S. Copyright Office before the
work's author could file a copyright infringement action. Under the 1988 act,
mandatory registration is still required for works of American origin, but not
for foreign works from other Berne Union nations. [74]A few other less important
formalities also were revised to satisfy Berne.
Congress still was hesitant to add moral rights to U.S. copyrights when it
explored ways to adhere to and implement the Berne Convention.[75] Congress
questioned whether it needed to enact new laws protecting moral rights. Were
existing laws, federal and state, statutory and common law, enough to satisfy
requirements of the Berne Convention? Congress ultimately concluded that new
moral rights laws were not necessary and passed the Berne Convention
Implementation Act of 1988. But debate on this point continues, and even
attorneys who write about international copyright issues disagree. In 1989,
Harry G. Henn wrote that the 1988 act "may not adequately recognize every right
'specially granted' by the Convention (e.g., noneconomic, or moral, rights)."
[76] In the same year, however, Stephen J. Strauss opined that, "International
legal scholars as well as the States and Commerce Departments now agree that
present United States laws under the Copyright and Lanham [Trademark] Acts, as
well as the various State statutes and common law principles such as libel,
defamation, misrepresentation and unfair competition, are sufficient to satisfy
the moral rights requirement of the Berne Convention." [77]For example,
California, New York and Massachusetts have statutes granting some artists some
rights similar to moral rights.
More recently, Congress in the Visual Artists Rights Act of 1990 has created
some limited moral rights, but only for "works of visual art," including
"paintings, drawings, prints, sculptures and still photographic images produced
for exhibition purposes only, and existing in single copies or in limited
editions of 200 or fewer copies." These limited rights are now included in
section 106A of the U.S. copyright act. (The text of section 106A is set forth
in Appendix C.) These rights seem stingy compared to the "right of integrity"
and "right of association" Canada gives to all its creators of works. Clearly,
the U.S. Congress does not agree with the value Canada's sub-committee placed on
moral rights: "[M]oral rights should have as much importance as economic rights.
... Creative works are very much the expression of the personality of their
authors. There is an identification between authors and their works. ...
[C]reators cannot be fully protected unless their moral rights are recognized
and enhanced."[78]
Fair use or fair dealing
More indicative of the values of the U.S. Congress is the American approach of
"fair use," a statutory defense to actions that would otherwise be an
infringement of the creator's copyrights. Goldstein sees the "fair use" doctrine
as the key symbol of the United States' economic-centered concept of copyright.
"Just as moral right is the preeminent symbol of the author's rights culture,
fair use ... symbolizes the more pragmatic American culture. Fair use is a
hard-edged economic instrument that will excuse an unauthorized use of a
copyrighted work as being a fair one any time it is too costly for the parties
to negotiate a license."[79] Courts applying the Section 107 "fair use" doctrine
examine four factors of an infringing use: what was the purpose and character of
the use, what was the nature of the copyrighted material that was used, how much
and of what significance was the copyrighted material used, and what was the
effect of the use on the potential market value of the copyrighted work.
Goldstein sees the "fair use" doctrine as economically driven and inherently
pragmatic. "Fair use operates on the pragmatic notion that half a loaf is better
than none: without it, the copyright owner would get no revenues because the
costs of negotiating a license are insuperably high, while the prospective user
would for the same reason get no copy; with it, the copyright owner still gets
nothing, but the user at least gets to make a copy."[80]
The 1984 Canadian White Paper had proposed that the Canadian copyright
infringement defense called "fair dealing" be changed in name and content to a
"fair use" defense very similar to the U.S. "fair use" defense.[81] The 1985
sub-committee, however, strongly criticized such a change. "The fair dealing
provision already constitutes an important limitation to copyright by providing
that some unauthorized use of intellectual property is permissible as long as it
is 'fair' and it is done for the purpose of 'private study, research, criticism,
review or newspaper summary.' Substituting a fair use criterion would expand
this defense to permit any use whatsoever as long as it did not inflict economic
damage on the copyright owner."[82] "[F]air use implies that rights in
intellectual property are definitely second class rights, very different from
rights in physical property. The Sub-Committee rejects this proposition and
takes the opportunity to assert that 'ownership is ownership is ownership.' The
copyright owner owns the intellectual works in the same sense as a landowner
owns land. ... [T]hose differences that do exist are adequately reflected in the
fair dealing concept."[83] Instead, the sub-committee recommended against any
liability exception, without a strong public purpose. "A strong public purpose
must justify any exception from copyright liability; a desire to save money or
time is not such a strong public purpose. Quite the contrary: the stronger the
purpose, the greater should be the willingness to spend money towards its
realization."[84]
The text of Canada's current "fair dealing" provision and related sections are
set forth in Appendix B. The text of the U.S. "fair use" provision is included
in Appendix C. The Canadian "fair dealing" defense provisions are very detailed
and limited in who can claim the defense and when. The significantly less
detailed U.S. "fair use" provision outlines a broad defense that may be claimed
by a broad range of copyright defendants.
Conclusion
The Canadian and U.S. acts have many similarities and operate in a very similar
fashion. It would be hard to be good neighbors and trading partners without
copyright acts that worked well together. But in subtle ways, the two nations do
portray the international duality of copyright goals and objectives. How much
difference will these different goals make in the future? Perhaps little, at
least according to Goldstein. "[P]utting the emblems of moral right and fair use
to the side, the two cultures of copyright have much in common. The similarities
lie not only in the practicalities of the marketplace but in the laws'
underlying premises."[85] Goldstein suggests that the differences may be largely
rhetorical - but nurtured by notions of national cultural identity and symbols
with great political power.[86]
As a major exporter of intellectual property, will the United States - for
economic and political instead of theoretical reasons - decide that it must
follow the international flow of expanded copyrights? On one hand, congressional
activity in the past few decades has followed this trend of expanded rights. On
the other hand, several U.S. Supreme Court decisions involving the "fair use"
doctrine[87] to some extent have limited such expansions.
Some U.S. legal scholars advocate that the United States should join with
Canada and embrace a broader vision of "moral rights."[88] Some Canadian
lawyers suggest that Canada should amend its "fair dealing" provision become
more similar to the U.S. "fair use" doctrine.[89] Perhaps the romantic mental
image of the struggling artist has pulled too many nations to join in a "moral
rights" march that really may not serve creativity.[90] Or perhaps "moral
rights" supporters - lost in their own rhetoric of "natural rights" and the
criticism of the "utilitarian" U.S. approach -have not articulated their own
objectives. It is not the purpose of this paper to advocate for either side or
either course of action. Instead, this paper's goal has been to enlighten its
readers about the cultural-based distinctions between Canadian and U.S.
copyright laws. Whether this debate is "real" or "rhetorical," it has a real
potential of hindering shared creative development along the U.S./Canadian
border.
Appendix A
Excerpts from [Canadian] Copyright Act, R.S.C. 1985, c. C-42
Section 14.1(1): "Moral Rights"
14.1(1) The author of a work has, subject to section 28.2, the right to the
integrity of the work and, in connection with an act mentioned in section 3, the
right, where reasonable in the circumstances, to be associated with the work as
its author by name or under a pseudonym and the right to remain anonymous.
14.1(2) Moral rights may not be assigned but may be waived in whole or in part.
14.1(3) An assignment of copyright in a work does not by that act alone
constitute a waiver of any moral rights.
14.1(4) Where a waiver of any moral right is made in favour of an owner or a
licensee of copyright, it may be invoked by any person authorized by the owner
or licensee to use the work, unless there is an indication to the contrary in
the waiver.
14.2(1) Moral rights in respect of a work subsist for the same term as the
copyright in the work.
14.2(2) The moral rights in respect of a work pass, on the death of its author,
to
(a) the person to whom those rights are specifically bequested;
(b) where there is no specific bequest of those moral rights and the author
dies testate in respect of the copyright in the work, the person to whom that
copyright is bequeathed; or
(c) where there is no person described in paragraph (a) or (b) , the person
entitled to any other property in respect of which the author dies intestate.
Section 28.2(1): "Nature of right of integrity"
28.2(1) The author's right to the integrity of a work is infringed only if the
work is, to the prejudice of the honour or reputation of the author,
(a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause or institution.
28.2(2) In the case of a painting, sculpture or engraving, the prejudice
referred to in subsection (1) shall be deemed to have occurred as a result of
any distortion, mutilation or other modification of the work.
28.2(3) For the purposes of this section,
(a) a change in the location of a work, the physical means by which a work is
exposed or the physical structure containing a work , or
(b) steps taken in good faith to restore or preserve the work
shall not, by that act alone, constitute a distortion, mutilation or other
modification of the work.
Appendix B
Excerpts from [Canadian] Copyright Act, R.S.C. 1985, c. C-42
Section 27(2): "Acts not constituting infringement of copyright"
27(2) The following acts do not constitute an infringement of copyright:
27(2)(a) and 27(2)(a.1) : "Any fair dealing with any work for certain purposes"
(a) any fair dealing with any work for the purpose of private study or
research
(a..1) any fair dealing with any work for the purposes of criticism, review or
newspaper summary, if
(i) the source, and
(ii) the author's name, if given in the source,
are mentioned
...
27(2)(c): "If the work is permanently situated in a public place"
(c) the making or publishing of paintings, drawings, engravings or photographs
of a work of sculpture or artistic craftsmanship, if permanently situated in a
public place or building, or the making or publishing of paintings, drawings,
engravings or photographs that are not in the nature of architectural drawings
or plans, of any architectural work;
27(2)(d) : "Short passages intended for schools"
(d) the publication in a collection, mainly composed of noncopyright matter,
intended for the use of schools, and so described in the title and in any
advertisements issued by the publisher, of short passages from published
literary works not themselves published for the use of schools in which
copyright subsists, if not more than two of the passages from works by the same
author are published by the same publisher within five years and the source from
which the passages are taken is acknowledged;
27(2)(e) : "Publication in a newspaper of a report of a lecture delivered in
public"
(e) the publication in a newspaper of a report of a lecture delivered in
public, unless the report is prohibited by conspicuous written or printed notice
affixed before and maintained during the lecture at or about the main entrance
of the building in which the lecture is given, and, except while the building is
being used for public worship, in a position near the lecturer, but nothing in
this paragraph affects the provisions in paragraph (a ), as to newspaper
summaries;
27(2)(f ): "Recitation of any reasonable extract"
(f ) the reading or recitation in public by one person of any reasonable
extract from any published work;
...
28: "Report in newspaper of political speech no infringment"
28. Notwithstanding anything in this Act, it shall not be an infringement of
copyright in an address of a political nature delivered at a public meeting to
publish a report thereof in a newspaper.
Appendix C
Excerpts from U.S. Copyright Act of 1976, as amended, 17 U.S.C. 101-810.
Section 107: "Limitations on exclusive rights: Fair Use"
Notwithstanding the provisions of sections 106 and 106A, the fair use of a
copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching, (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair use
the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use
if such finding is made upon consideration of all of the above factors.
Sec. 106A: "Rights of certain authors to attribution and integrity," Edited
(a) Rights of Attribution and Integrity. ... the author of a work of visual art
-
(1) shall have the right -
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work
of visual art which he or she did not create
(2) shall have the right to prevent the use of his or her name as the author
of the work of visual art in the event of a distortion, mutilation, or other
modification of the work which would be prejudicial to his or her honor or
reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the
right-
(A) to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or her honor or
reputation, and any intentional distortion, mutilation, or modification of
that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any
intentional or grossly negligent destruction of that work is a violation of
that work is a violation of that right.
[Subparts b, c, d and e omitted]
[1] Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994)
[2] Section 27(2) of the Canadian Copyright Act, R.S.C. 1985, c. C-42. See
Appendix B of this paper.
[3] U.S. Copyright Act of 1976, as amended, 17 U.S.C. 107. See Appendix C of
this paper.
[4] Sections 14.1(1) and 28.2(1) of the Canadian Copyright Act, R.S.C. 1985, c.
C-42. See Appendix A of this paper.
[5] U.S. Copyright Act of 1976, as amended, 17 U.S.C. 106A. See Appendix C of
this paper.
[6] Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial
Jukebox 38 (1994).
[7] A Charter of Rights for Creators: Report of the Sub-committee on the
Revision of Copyright, Standing Committee on Communications and Culture, Canada
House of Commons ( October 1985) (hereinafter 1985 Canadian Sub-Committee
Report)
[8] Id.
[9] Id.
[10] Goldstein, supra note 6, at 5.
[11] 1985 Canadian Sub-Committee Report, supra note 7, at xi.
[12] Richard E. Vaughan, Defining Terms in the Intellectual Property Protection
Debate: Are the North and South Arguing Past Each Other When We Say "Property"?
A Lockean, Confucian, and Islamic Comparison, 2 ILSA J. of Int'l & Comparative
Law 307, 311 (1996).
[13] 1985 Canadian Sub-Committee Report, supra note 7, at xi.
[14] Goldstein, supra note 6, at 35.
[15] Goldstein, supra note 6, at 35.
[16] Goldstein, supra note 6, at 28.
[17] Goldstein, supra note 6, at 27.
[18] [Canadian] Copyright Act, R.S.C. 1985, c. C-42.
[19] U.S. Copyright Act of 1976, as amended, 17 U.S.C. 101-810.
[20] Goldstein, supra note 6, at 37. (Emphasis added.)
[21] Goldstein, supra note 6, at 14-15.
[22] Goldstein, supra note 6, at 14.
[23] Goldstein, supra note 6, at 168.
[24] Goldstein, supra note 6, at 168.
[25] Marshall A. Leaffer, Understanding Copyright Law (2d) 3 (1995).
[26] Leaffer, supra note 25, at 3.
[27] Leaffer, supra note 25, at 3.
[28] Leaffer, supra note 25, at 3.
[29] Goldstein, supra note 6, at 168.
[30] Even U.S. legal scholars and legislators disagree among themselves about
the appropriate focus for U.S. copyright laws. Goldstein describes two groups:
the copyright "optimists" and "pessimists." Optimists "assert that copyright is
rooted in natural justice, entitling authors to every last penny that other
people will pay to obtain copies of their works." Pessimists "accept that
copyright owners should get some measure of control over copies as an incentive
to produce creative works, but they would like copyright to extend only so far
as is necessary to give this incentive, and treat anything more as an
encroachment on the general freedom of everyone to write and say what they
please." Goldstein, supra note 6, at 15.
[31] Richard Wincor, Unrest on the Frontiers of Copyright, 16(3) Comm. & L. 83,
84 (1994).
[32] Goldstein, supra note 6, at 26.
[33] Goldstein, supra note 6, at 166, quoting the words of a French scholar.
[34] Goldstein, supra note 6, at 166.
[35] Goldstein, supra note 6, at 170-171.
[36] Leaffer, supra note 25, at 2-3.
[37] Goldstein, supra note 6, at 27.
[38] Goldstein, supra note 6, at 3-4.
[39] Goldstein, supra note 6, at 171.
[40] U.S. Const., Art. I, Sec. 8, Cl. 8.
[41] Stephen J. Strauss, Don't be Burned by Berne: A Guide to the Changes in
the Copyright Laws as a Result of the Berne Convention Implementation Act of
1988, 71 J. Pat. [& Trademark] Off. Soc'y 374, 375 (1989).
[42] Leaffer, supra note 25, at 4-5.
[43] W.L. Hayhurst, Intellectual Property Laws in Canada: The British
Tradition, the American Influence and the French Factor, 10 Intell. Prop. J.
265, 281-287 (1996).
[44] Id. at 309-315.
[45] 1985 Canadian Sub-Committee Report, supra note 7, at xi
[46] 1985 Canadian Sub-Committee Report, supra note 7, at xi.
[47] 1985 Canadian Sub-Committee Report, supra note 7, at 2-3.
[48] 1985 Canadian Sub-Committee Report, supra note 7, at 3.
[49] Judy Erola & Francis Fox, From Gutenberg to Telidon: A White Paper on
Copyright: Proposals for the Revision of the Canadian Copyright Act (1984)
(hereinafter 1984 Canadian White Paper)
[50] 1985 Canadian Sub-Committee Report, supra note 7, at 3.
[51] Standing Committee on Communications and Culture, Canada House of Commons.
This self-described "all-party" subcommittee was composed of five Members of
Parliament: three Progressive Conservatives, one Liberal, and one New Democrat.
The subcommittee spent 10 months examining copyright revision, received more
than 300 written briefs, and heard from 111 witnesses at public hearings. Its
report made 137 recommendations, many, although not all, of which were included
in the 1985 amendments to Canada's Copyright Act. The report also included a
brief, three-page dissenting opinion disagreeing with some of the
recommendations. While this report does not portray the entirety of Canadian
legislative history and thought on the recent Canadian Copyright Act amendments,
it does provide a partial summary of some of the Parliament members' concerns.
[52] 1985 Canadian Sub-Committee Report, supra note 7, at 3.
[53] 1985 Canadian Sub-Committee Report, supra note 7, at 4.
[54] 1985 Canadian Sub-Committee Report, supra note 7, at 4.
[55] 1985 Canadian Sub-Committee Report, supra note 7, at 4.
[56] 1985 Canadian Sub-Committee Report, supra note 7, at 4
[57] 1985 Canadian Sub-Committee Report, supra note 7, at 5.
[58] 1985 Canadian Sub-Committee Report, supra note 7, at xii.
[59] 1985 Canadian Sub-Committee Report, supra note 7, at 1, citing A New
Direction for Canada: An Agenda for Economic Renewal, Canada, Department of
Finance, 1984, 56.
[60] 1985 Canadian Sub-Committee Report, supra note 7, at 1, citing A New
Direction for Canada: An Agenda for Economic Renewal, Canada, Department of
Finance, 1984, 56.
[61] Normand Tamaro, The 1995 Annotated Copyright Act 11 (1994) (Translated by
Christopher McGuire).
[62] Tamaro, supra note 56, at 11. See also Ysolde Gendreau, Recent
Developments in Canadian Copyright Law, 41 J. Copyright Soc'y of the USA 183,
187 (1993)
[63] [Canadian] Copyright Act, R.S.C. 1985, c. C-42, sections 14.1(1) and
28.2(1).
[64] Goldstein, supra note 6, at 186.
[65] Pub. L. No. 100-568, 102 Stat. 2853
[66] "The Convention for the Protection of Literary and Artistic Works, signed
at Berne, Switzerland, on September 8, 1886" has been reworked or revised
several times: in Paris in 1896; in Berlin in 1908; in Berne in 1914; in Rome in
1928; in Brussles in 1948; in Stockholm in 1967; and in Paris in 1971. The Paris
Convention of 1971, as amended on Oct. 2, 1979, is the latest version. Harry G.
Henn, 1989 Supplement to Copyright Law: A Practitioner's Guide: Summary of the
Berne Convention Implementation Act of 1988, 1 (Practising Law Institute, March
1989).
[67] Henn, supra note 66, at 1.
[68] Henn, supra note 66, at 1.
[69] Henn, supra note 66, at 4 and Strauss, supra note 41, at 375.
[70] Strauss, supra note 41, at 375.
[71] Strauss, supra note 41, at 376 (quoting an English translation of Article
6bis of the Berne Convention).
[72] Strauss, supra note 41, at 376.
[73] Strauss, supra note 41, at 379.
[74] Strauss, supra note 41, at 380.
[75] Strauss, supra note 41, at 383.
[76] Henn, supra note 66, at 4.
[77] Strauss, supra note 41, at 377-378.
[78] 1985 Canadian Sub-Committee Report, supra note 7, at 6.
[79] Goldstein, supra note 6, at 170.
[80] Goldstein, supra note 6, at 170
[81] . 1984 Canadian White Paper, supra note x, at 39-40.
[82] 1985 Canadian Sub-Committee Report, supra note 7, at 9.
[83] 1985 Canadian Sub-Committee Report, supra note 7, at 9.
[84] 1985 Canadian Sub-Committee Report, supra note 7, at 9.
[85] Goldstein, supra note 6, at 170
[86] Goldstein, supra note 6, at 179.
[87] Notably Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164 (1994) (where
the U.S. Supreme Court held that rap group 2 Live Crew's parody of Roy Orbison's
song, "Oh, Pretty Woman," was a "fair use") and Sony Corp. of America v.
Universal City Studios (the Betamax case), 464 U.S. 417 (1984) (where the U.S.
Supreme Court held that private non-commercial taping of television programming
for the purpose of time-shifting was a "fair use.")
[88] Jonathan Stuart Pink, Moral Rights: A Copyright Conflict Between the
United States and Canada, 1 Sw. J. of L. & Trade Am. 171 (1994).
[89] ARTICLE: Constitutionalizing Copyright: Freedom of Expression and the
Limits of Copyright in Canado, 55 U.T. Fac. L. Rev. 175 (1997).
[90] For arguments against expansion of U.S. "moral rights," see Leaffer, supra
note 25, at 281, and Robert A. Gorman, Federal Moral Rights Legislation: The
Need for Caution, 14 Nova L. Rev. 421 (1990). For arguments that the current
U.S. "moral rights" provision can successfully coexist with the U.S. "fair use"
provision, see Geri J. Yonover, Artistic Parody: The Precarious Balance: Moral
Rights, Parody, and Fair Use, 14 Cardozo Arts & Ent. L.J. 79 (1996). For an
argument that the two provisions cannot coexist, see NOTE: The Visual Artists'
Rights Act of 1990: Why Moral Rights Cannot Be Protected Under the United States
Constitution, 24 Hofstra L. Rev. 1127 (1996).
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