This is the kind of law blog post that I dread. I’m about to write about something I’m unsure about. And, if it wasn’t for the obscurity of this blog, I’d fully expect someone to come along and lawyersplain copyright law to me, while pointing out an obvious thing I’ve missed.
A couple of months ago I wrote about Public Domain Day 2021 in the U.S. Basically, in the United States, for works published before 1978, the length of copyright currently stands (generally speaking) at 95 years. Many works published in 1925 entered the public domain in the United States on January 1, 2021 (and some were already in the public domain).
In that post, I also said that the situation is not the same in Canada. For Canadians, copyright has long been granted for a term of 50 years plus the life of the author (again, generally speaking). So if an author published their work in 1925, but only died in 1989, we’re not there yet. That actually applies to Irving Berlin, whose composition Always was in the list of works I included; it was published in 1925, but Irving Berlin didn’t die until 1989 (at the age of 101!).
I almost ended my blog post by saying, “That means that Always has entered the public domain in the U.S. but not in Canada.” But I stopped, because I wasn’t completely sure.
What is the Rule of the Shorter Term?
Canada is a contracting party to the Berne Convention, an 1886 international copyright treaty that sought to ensure copyright was uniformly protected in contracting states, and subject to certain minimum standards (such as protection of copyright for life plus 50 years). The Berne Convention has three basic principles:
- Works originating in another state must receive the same treatment as domestic works (e.g. Always, a U.S. song, gets the same level of protection in Canada as a Canadian song)
- Copyright protection is automatic (e.g. there’s no filing or registration requirement)
- Protection doesn’t rely on protection still existing in the originating state (e.g. Always doesn’t automatically lose protection in Canada just because it lost protection in the United States)
Alongside these principles are the minimum standards and rules. I won’t recite them all, but the one that we’re interested in is called the Rule of the Shorter Term. It is a non-mandatory provision that says, despite principles 1 and 3 above, “unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work” (Berne Convention Article 7(8)). In other words, it would mean that if copyright in a work has expired in the country of origin, then it has expired in Canada, regardless of whether Canada grants a longer term of protection.
It seems that if Canada implements the Rule of the Shorter Term, Always is public domain in Canada. If Canada doesn’t implement the Rule of the Shorter Term, then Always gets life plus 50 years (according to basic principles 1 and 3), and is still under copyright in Canada.
Does Canada Implement the Rule of the Shorter Term?
First – a caution for those looking for the quick answer – read to the end. A great resource of information about the public domain in Canada is UBC’s page about it, created by the Scholarly Communications and Copyright Office of the Walter C. Koerner Library. That page says the following:
When determining whether or not a foreign work (from a Berne Convention country) is in the Public Domain in Canada, the first step is to determine whether the work would be in the public domain if it had been published in Canada.
If the work would have been in the public domain if published in Canada, it is in the public domain in Canada. If the work would not be in the public domain if it were published in Canada, check to see whether the work is in the public domain in the country where it was published.
If the work is in the public domain in the country where it was published, then it is in the public domain in Canada. If the work is not in the public domain in Canada nor in the country where it is published, then the work is not in the public domain.https://copyright.ubc.ca/public-domain/
All of that is essentially a summary of the Berne Convention, suggesting that Canada does indeed implement the Rule of the Shorter Term.
Wikipedia says the same thing, with a caveat, stating in a chart that Canada implements the Rule of the Shorter Term except with respect to NAFTA countries. The citation on Wikipedia is to Section 9(2) of the Copyright Act, which has been updated to refer to CUSMA instead of NAFTA. Section 9(2) says the following:
Nationals of Other Countries
(2) Authors who are nationals of any country, other than a country that is a party to the Canada–United States–Mexico Agreement, that grants a term of protection shorter than that mentioned in subsection (1) are not entitled to claim a longer term of protection in Canada.https://laws-lois.justice.gc.ca/eng/acts/C-42/FullText.html
So… case closed? This would suggest that the Rule of the Shorter Term applies, but not for Always by Irving Berlin because the United States is a party to CUSMA. But sadly, no, this doesn’t answer our question. Section 9(2) is actually in reference to “subsection (1)” which is about the term of copyright in cases of joint authorship:
Cases of joint authorship
9 (1) In the case of a work of joint authorship, except as provided in section 6.2, copyright shall subsist during the life of the author who dies last, for the remainder of the calendar year of that author’s death, and for a period of fifty years following the end of that calendar year, and references in this Act to the period after the expiration of any specified number of years from the end of the calendar year of the death of the author shall be construed as references to the period after the expiration of the like number of years from the end of the calendar year of the death of the author who dies last.https://laws-lois.justice.gc.ca/eng/acts/C-42/FullText.html
So if anything, Canada has implemented a Rule of the Shorter Term for joint authorship… but that seems to be it.
Two notes here:
- It’s possible to read Section 9(2) as creating a much broader rule applicable to all works, despite its location in the Act… but I’m going to carry on with the assumption that is not the correct reading. Having said that, there’s also an argument the other way. When Canada implements a treaty (as it has with the Berne Convention), as the Supreme Court has said, “where the text of the domestic law lends itself to it, one would also strive to expound an interpretation which is consonant with the relevant international obligations.”
- And yes, I think Wikipedia is wrong… which is scary considering how often I rely on it for things I could never double-check.
Where Does That Leave Always by Irving Berlin?
There’s at least three problems to saying the Rule of the Shorter Term applies to Always by Irving Berlin in Canada:
1. The Berne Convention says the Rule of the Shorter Term is to be applied unless the legislation of a country provides otherwise. But the Copyright Act considers a Rule of the Shorter Term, and apparently only extends it to works of joint authorship, which arguably means it provides otherwise (but see note 1 above),
2. Applying the Rule of the Shorter term to non-joint authorship works seems like it could require having international law trump domestic law, which is typically not the correct order of things, and
3. Perhaps most importantly, Always is only public domain because the U.S. failed to implement the Berne Convention’s minimum standard term of life plus 50 until its Copyright Act of 1976, so applying the Rule of the Shorter Term would just mean enforcing a term of copyright that’s already offside the minimum protections of the Berne Convention.
So for those reasons, I’m going to say as of this moment I don’t think Always by Irving Berlin is in the public domain in Canada. But if it’s only because of reason #3 I just listed, then maybe the Rule of the Shorter Term does apply in Canada. Still, I think the correct answer is that the rule applies, but only for works of joint authorship. Change my mind!