Tag: public domain

Canadians (and Anyone Else Outside the US): Beware the Annual Public Domain Hype

A black and white cartoon character resembling a mouse, wearing a hat and shorts, happily steering a ship's wheel.

Image: Public Domain

This is the time of year (the days and weeks after January 1) when, on a quiet news day, lazy journalists in Canada used to pick up and amplify a US based story about such and such a work falling out of copyright and into the public domain and write a story about it, complete with a grabbing headline, often to the effect that Mickey Mouse or Batman or The Great Gatsby or whoever is now “liberated from the chains of copyright”. The CBC did exactly that in 2024, producing a radio special on Steamboat Willie entering the public domain, completely ignoring the fact that all works created by Walt Disney and Ub Iwerks (which include the earliest editions of Steamboat) had already entered the public domain in Canada two years earlier, on January 1, 2022. Iwerks was co-author and joint rightsholder along with Disney for this work and as the co-author who lived the longest (he died in 1971; Disney in 1966) the term of copyright protection in Canada was based on the year he died plus, at the time, an additional 50 years. Thus, January 1, 2022 in Canada. As I wrote a couple of years ago (Canada is not the United States when it comes to Copyright: The Cases of Anne of Green Gables and Steamboat Willie (or Down the Copyright Rabbithole, Twice), sometimes works still under copyright protection in Canada are in the public domain in the US, and sometimes it is the reverse. Don’t assume. This law firm’s blog post (Gowlings) provides a good overview of what to watch out for.

The mistake of making the assumption that what happens in the US is automatically applicable to Canada is the unfortunate reality of being a cultural minnow living cheek by jowl with a content creation whale. This year I didn’t notice any of the reflected US public domain stories in the Canadian media, perhaps because the penny has finally dropped that public domain day in Canada will be a non-event until the year 2043 (no need for any hype), owing to the extension of Canada’s term of copyright protection from the life of the author plus 50 years to life plus 70 (for most works). Any works that had fallen into the public domain under Canada’s previous “life plus 50” term did not receive the additional term of protection but any works still copyright protected in Canada at the end of 2022 got another twenty years coverage before entering the public domain. Had Ub Iwerks died in 1972 instead of a year earlier, Steamboat Willie would have enjoyed another two decades of protection in Canada beyond what applies in the US, although it is doubtful whether the Walt Disney Company would have tried to enforce its rights under Canadian law.

Not only has Canada harmonized its current term of copyright protection with the US, EU, UK, and a number of other countries, (although there will always be discrepancies between the terms of protection afforded works in Canada versus those in the US for many years to come owing to the historical peculiarities of how the term of protection is calculated under US copyright law), there have also been fewer quiet news days in early 2026 thanks to the daily Donald Trump Reality Show. Moreover, there has been a surge in Canadian nationalism (and thus a greater awareness of cultural differences) as a result of the Donald’s 51st state taunts. (Prime Minister Mark Carney, an internationally recognized banker and financial executive seemed initially to enjoy Trump’s respect but since his Davos speech calling out the realities of the new world order, Carney, like his predecessor Justin Trudeau, has been demoted to the title of “Governor Carney” on Truth Social, apparently the current official channel for announcements of US government policy). So, journalists, if you want to write about what makes Canada different from the US, in addition to measuring distance in kilometers and saying “sorry” every time someone bumps into you, you could note that US and Canadian copyright laws are different. Similar in intent but not identical. For example, the US fair use doctrine with its unpredictable focus on transformative use does not apply in Canada, the US requirement for formal registration of copyright in order to bring legal action does not apply in Canada and, in particular, the complex (because of its convoluted history) US determination of when a particular work falls into the public domain does not apply in Canada.

This year, as it does every year, the Center for the Study of the Public Domain at Duke University’s Law School, published its Public Domain Day blog, highlighting all the works that fell into the US public domain on January 1, 2026. These include such well known works or characters as Agatha Christie’s The Murder at the Vicarage (protected in Canada until January 1, 2043) , Somerset Maugham’s Cakes and Ale (in the public domain in Canada since 2016), Blondie and Dagwood, nine additional Mickey Mouse cartoons, Dutch artist Piet Mondrian’s Composition No. II/Composition in Red, Blue, and Yellow, four songs by Ira and George Gershwin, and so on. Much is made of the fact that these works will be free to anyone to use, remix, copy and exploit but it’s not as if these works have been locked away in a closet, although their unlicensed use has been protected by copyright law. Copyright protection does not stop anyone from creating new works and while there may be limitations on hijacking Inspector Poirot there is nothing stopping aspiring writers from creating detective novels. There is another element worth noting as well. Particularly when it comes to copyrighted characters and cartoons, their later iterations may still be copyright protected in the US (because of the US baseline being date of publication plus a set number of years) not to mention protection offered by registered trademarks. Sometimes estates try to hang on to copyright protection at all costs, as appears to be happening in the US with Mondrian’s work. (It has been in the public domain in Canada since 1995, 50 years after Mondrian’s passing).

Once a work has entered the public domain it can be used in derivative works without permission. Has this resulted in a slate of new and creative works being produced for the benefit of mankind? Hardly. The usual result is for a brief surge of “edgy” productions incorporating a new public domain work, such as Steamboat Willie doing or saying things that Dear Old Uncle Walt (Disney) would never have countenanced. As I noted a couple of years ago, the “liberation” of copyright protected works has led to such triumphs as The Gay Gatsby, The Great Gatsby Undead (Zombie Edition) and the film Winnie the Pooh: Blood and Honey. So much for the public domain unleashing the juices of creativity.

For better or worse, copyright is not a perpetual property right. I support reasonable limitations on copyright protection including making a provision for works to enter the public domain after their prime exploitability has passed. This will vary by work with some works remaining evergreen, encouraging new investment into derivative works, updates, new editions, as well as providing ongoing returns to the estates of authors. However, at times there are situations where a work is long out of print and the rights-holder cannot be located, blocking a reprint. These situations can be dealt with through specific exceptions, much as fair use and fair dealing allow for specified unauthorized uses that do not damage the rights of the author.

To come back to the narrative that the public domain liberates content from the “shackles of copyright”, I contend this is nonsense. Beware the hype. And if you reside outside the US, don’t believe everything you read in the media regarding what works are in the public domain. You might be pleasantly surprised to find that a work has been in the public domain in your country for years (while Conan Doyle’s later works only entered the US public domain in 2023, they have been in the public domain in Canada since 1981). On the other hand, you might find the work you thought was free for adaptation based on what Duke University’s Center for the Study of the Public Domain says is way off base and it is still protected by copyright in your country of residence. Beware the hype and do your homework.

© Hugh Stephens, 2026. All Rights Reserved.

Visiting Mexico Made Me Wonder…Are the Works of Diego Rivera and Frida Kahlo in the Public Domain (Answer: It Depends)

Image: Museo del Arte Moderno, Mexico City

This is the time of year when Canadians find a desperate need to escape, from rain, sleet, snow and hail. They head for sunnier climes further south. With my family I spent a few days in that great, populous republic down south, the one with a brand-new president, and where people are intent on chasing the mighty dollar, the US dollar that is. I am, of course, referring to Mexico. And with the withering Loonie, now down below 70 cents US, there were no bargains to be had. But we had sunshine, tacos, tequila and laughter.

Apart from its cuisine and history, Mexico is a cultural powerhouse, particularly in the art world with artists such as Diego Rivera and Frida Kahlo. Rivera, although politically controversial, was famous for decades and did much of his work in the US, where his works were no doubt registered, with many of them (all those produced since 1929) still falling under copyright protection in the US. Kahlo, twenty years his junior and his third wife (he would go on to have four) was not so well known during her lifetime (she died at age 47 in 1954 after a series of debilitating health issues and tempestuous love affairs) but then became immensely popular posthumously, in the 1970s and 1980s, particularly outside Mexico.

Books, coffee mugs, porcelain tiles, prints and all sorts of other items in the boutiques that line every small Mexican town where tourists gather feature Rivera and Kahlo paintings, along with all the other usual bric-a-brac, macrame, shell necklaces, etc. You name it. I confess to not knowing much about Mexican copyright law, but seeing all this artwork made me wonder if it was authorized or infringing. All I knew was that Mexico has one of the longest terms of copyright protection in the world, if not the longest. In Mexico, at the current time, a work is protected for the life of the author plus 100 years. Contrast this to the US, EU, Canada or many other countries where the term of copyright protection is life plus 70 years. In some other countries, it is still the Berne Convention minimum of life plus 50 years. So, with this long period of protection Mexico must have long considered protection for artists and authors a priority, right? Wrong.

In fact, the term of protection in Mexico was quite short until relatively recently, and this affects the term of copyright protection in Mexico for works by both Rivera and Kahlo. According to this article published a few year ago by a Mexican law firm, it wasn’t until 2003 that the Federal Congress extended the term of protection to life plus 100 for economic rights. However, as recently as 1947 the term of protection was only life plus 20 years. In 1956 this was extended to life plus 25 years. This was made retroactive so Kahlo’s works in Mexico were protected until the end of 1979. (1954 plus 25 years). Rivera died in 1957 and his works therefore entered the public domain in Mexico in 1983. There were further amendments in 1963 that extended the term to life plus 50, but with no retroactivity. This allowed Mexico to join the Berne Convention in 1972. In 1997, there was a further amendment to extend the term to life plus 75 and finally the ultimate extension in 2003. There was no retroactive application of the extended terms legislated in 1963, 1997 or 2003 to works already in the public domain, in other words there was no restoration of protection. It is clear that insofar as copyright protection is concerned both Rivera’s and Kahlo’s works have been in the public domain in Mexico for a number of years. What about elsewhere?

Every year in January public domain advocates publicize the major works where copyright protection has just expired as of January 1. Last year Steamboat Willie was the star attraction. This year in various arts publications Kahlo gets top billing along with Henri Matisse and others. While Kahlo’s works have indeed fallen into the public domain as of January 1, 2025 in some countries, (given that 70 years have passed since her death in 1954), this does not necessarily include the United States, despite some online reports to the contrary. It all depends on whether her works were published in the US or registered for US copyright. This is because, for works created before January 1, 1978, the US applies the life plus 70 years rule only to unpublished or unregistered works. US law further extends the term of protection for such works if they were eventually published before December 31, 2002—resulting in a possible maximum term of protection that would last through the end of 2047. See this guidance from the US Copyright Office.

Assuming that Kahlo’s unpublished works were registered for copyright in the US (or if they were published prior to her death), her works for which the copyright protection term started before 1930 would be in the public domain as of this year. (This is because the US applies a copyright protection term of 95 years from date of publication or registration for pre-1978 registered or published works). But any registered unpublished works or published works of hers where the term of protection started after 1929 are still protected. This would be the bulk of her repertoire as she started producing works around 1925 but most of her work was produced in later years, after 1930. However, if a work was not published or registered, the life plus 70 rule applies (except if the work was subsequently published before December 31, 2002). Those unpublished or unregistered works will have entered the public domain on January 1 of this year in the US. In other words, it all depends on the work. Blanket statements that all of Kahlo’s work is now in the public domain in the US are dangerous and very likely inaccurate.

What about Canada? Here the interpretation is a lot easier. All of Kahlo’s works have been in the public domain in Canada since January 1, 2005 since Canada applied a life plus 50 year term at the time her works reached copyright maturity.

How about Rivera? Given that much of his work was done in the US, it is likely his works were both registered and published, and so his post 1929 works will still be protected for many years, depending on the year the work acquired copyright protection. And in countries that apply a life plus 70 term his works will be protected until January 1, 2028, given the date of Rivera’s passing, 1957. But in Canada, his works became publicly available in 2008. In Mexico, as noted above, his work entered the public domain in 1983 (date of death 1957 plus 25 years under the 1956 amendment).

That’s all very clear, right? Well not really, and its further complicated by the fact that a Mexican corporation, the Frida Kahlo Corporation has registered trademarks of Kahlo’s likeness in the US as well as Frida Kahlo wordmarks associated with products such as cosmetics, alcoholic beverages, cigars, games, coffee, clothing, dishware, etc. and has been aggressive in issuing takedown notices and even bringing lawsuits against various artists and enterprises that have used Kahlo’s personality to market items, such as Kahlo dolls. It also defends the copyright on those Kahlo works that still are protected in the US.

As is often the case with copyright, the principle (protection of the author’s economic rights) is simple, but the application is frustratingly complex. It would appear that works by Rivera and Kahlo have been in the public domain in Mexico for decades, for a couple of decades in Canada, and that Kahlo’s works are now in the public domain in the EU and UK. But not Rivera’s. In the US some of their works, if registered and produced post-1929, are still protected. Unpublished or unregistered Kahlo works are not. Did I say copyright was simple? Pass the tequila.

© Hugh Stephens, 2025. All Rights Reserved.

I would like to acknowledge the help and patience of Rachel Kim, of the Copyright Alliance, for her assistance in helping me understand the intricacies of US copyright law as it applies to the term of copyright protection for works in the US.

Canada is not the United States when it comes to Copyright: The Cases of Anne of Green Gables and Steamboat Willie (or Down the Copyright Rabbithole, Twice)

Image: Shutterstock.com

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. However, beginning in 1963, the US Congress annually passed interim extensions to works still under copyright, in anticipation of a major overhaul of US copyright law. Thus the work was still protected 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. 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.

Editor’s Note: This post has been updated. The second and third paragraphs in the section headed “Anne of Green Gables” have been modified to explain that the work did not fall into the public domain in the US in 1964 (56 years after publication), only to have its copyright revived and extended after the implementation of the US Copyright Act of 1976. Rather, it continued to be protected as a result of a series of interim extensions passed by Congress until the enactment of the 1976 Act, at which time the term of pre-1978 works was extended by an additional 19 years, to 75 years from date of publication. As a result, in the case of Anne of Green Gables, its US copyright expired in 1983, as stated.