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In my last blog post, I got well down into the copyright weeds with a post on the Rule of the Shorter Term (RST) and how, in particular, it can impact copyright protection for US works in Europe. (For example, even though the EU applies the RST it can be overridden by bilateral treaties). The Rule of the Shorter Term is a provision that allows countries to deny national treatment (defined as treating foreign goods, services and intellectual property no less favourably than domestic equivalents) to authors from other jurisdictions when those jurisdictions maintain a term of protection that is shorter than the one provided in the original country. As a result it substitutes reciprocal treatment (i.e. tit-for-tat) for national treatment.
In that post, I noted that the US, unlike EU member states, does not apply the RST. In other words, the US accords the same treatment to foreign works as it does to US works even if the foreign country offers a lesser term of protection in comparison to the US. Although there is an optional provision for application of the RST in the Berne Convention, to which the United States is a party, international treaties are not considered self-executing in the US. As a result, unless enacted into US law, provisions of the Convention have no force and effect. And there is no reference in US law to the RST. (The Wikimedia Foundation has a long discussion of the issue).
But what about Canada? My conclusion is that like the US, Canada does not apply the Rule of the Shorter Term, although for a number of years it did–but only with respect to works of joint authorship. Why this was the case remains a mystery to me, but I will try to unravel it below.
In Canada, like the US, treaties are also not self-executing, thus requiring domestic legislation for implementation. The Copyright Act doesn’t or didn’t mention the Rule of the Shorter Term per se but until 2022 applied an RST-like limitation. Strangely, this was limited to works of joint authorship. Toronto music lawyer Paul Banwatt examined this issue in his blog, The Music Lawyer, (A Copyright Mystery – The “Rule of the Shorter Term” and the Public Domain in Canada) a few years ago. Banwatt was researching whether the song “Always”, by Irving Berlin, was still protected in Canada while being in the public domain in the US. Banwatt highlighted and discussed Section 9(2) of the Copyright Act of Canada which, (at the time he was writing his blog), said;
“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.”
This was a clear denial of national treatment for foreign works (other than those from the US or Mexico) if the country of the author granted a term of protection less than that accorded to works in Canada under Subsection (1) of Section 9. That subsection (in 2021, when Banwatt was writing) referred solely to joint authorship and stated that “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”. The only exception was for situations where the identify of both authors was unknown.
Thus, Section 9 (2) limited the rights of foreign authors to claim the full period of protection under the Canadian Copyright Act if their country provided for a shorter term than in Canada, but exempted authors from the US and Mexico from this restriction. Interestingly, Section 9(2) has since been deleted from the Act. It was removed on December 29, 2022, the same day that Canada extended its term of protection from life of the author plus 50 years to life of the author plus 70 years. This must mean that authors and co-authors from all Berne countries (including the US and Mexico) now enjoy a period of protection of life plus 70, with the clock ticking from the year of the demise of the last living co-author for joint works. Therefore, it seems reasonable to conclude that the RST no longer applies in Canada. But did it before 2022, and if so, why was this the case?
Earlier versions of the Copyright Act dating back a couple of decades included Section 9(2) but with the exclusions from it tied to NAFTA, signed in 1993, rather than CUSMA/USMCA, which came into effect in 2018. NAFTA granted both Mexico and the US national treatment for intellectual property (Article 17.03). Even though Canada only had a “life plus 50” term of copyright until the end of 2022 (when Section 9(2) was deleted), for some reason it was necessary to enshrine in legislation an exemption from application of the Rule of the Shorter Term to Mexican and US works (but only of joint authorship) as a result of the national treatment obligations taken on in both NAFTA and CUSMA. This suggests that Canada must have been applying the RST to works from countries offering less than Canada’s then “life plus 50” term (if the work was one of joint authorship). In the absence of any language to the contrary, it would seem that works of sole authorship were not subjected to the RST-like rules, and thus there was no reason to exempt the US and Mexico from them.
Irving Berlin’s “Always” was not a work of joint authorship. Had it been, it would have been protected under the terms of NAFTA/CUSMA exception and be entitled to a term of “life plus 50” in Canada, which exceeded the protection the work received in the US. Being the work of a sole author, “Always” automatically benefited from Canada’s life plus 50 year term. As Paul Banwatt pointed out, “Always” fell into the US public domain on January 1, 2021, 95 years after having been published in 1925. The work benefited from repeated extensions of the US term of protection, as the US transitioned from a system based on date of publication to one based on life of the author. Based on the principle of national treatment, the work is still protected in Canada. Berlin died in 1989 (at age 101!) so upon his death his work was protected in Canada until January 1, 2040, since prolonged to 2060 when Canada extended its term of protection to “life plus 70” in 2022.
What about works from nationals of countries other than the US and Mexico? The existence of Section 9(2) in the Copyright Act from at least the 1990s through December of 2022 implies that Canada applied an RST provision to works of joint authorship from all countries except for the US and Mexico. That was during the period when Canada applied the Berne minimum rule of “life 50”. I can’t think of any countries that offered lesser protection than that, other than the United States, so perhaps this explains the presence of Section 9 (2). In practical terms it didn’t impact any country other than the US, but in the interests of legal certainty the US needed to be exempted from it to give explicit effect to NAFTA and CUSMA’s national treatment obligations. Mexico went along for the ride. Assuming this is the explanation, why did it apply only to works of joint authorship? And why was it dropped when Canada extended its term to match the current “life plus 70” term of the US and a number of other countries?
It is very plausible today to find scenarios where a country might offer a lesser term than that offered in Canada. This will occur if it follows the Berne minimum of “life plus 50” for works (either single or joint authorship), while Canada now offers a longer term. And if Canada on occasion offered a longer term of protection than in the US when it applied a “life plus 50” term, surely once it extended the term to “life plus 70”, the discrepancy would widen. So why eliminate the carve out for the US (and Mexico, unless the explanation is that with the removal of Section 9(2), there is no longer any reference to an RST in Canadian law, and thus an exemption for Canada’s CUSMA partners is now not necessary. If this is the case, however, why was Section 9(2) inserted in the first place?
This is the mystery for you copyright aficionados to solve.
1) What was the reason for including Section 9(2), the RST clause with an exemption for the US and Mexico, in earlier versions of the Copyright Act, and then dropping it when Canada extended its copyright term? and;
2) Why was the RST provision applied prior to 2022 only to jointly authored works?
Someone out there must know the answer. If so, please let me know. I will pass it along. Now let’s get out of the weeds.
© Hugh Stephens, 2026. All Rights Reserved.
