Tag: rule of the shorter term

Does (or Did) the Rule of the Shorter Term (RST) Apply in Canada? A Mystery for Copyright Aficionados

Scrabble game board showing the words 'RULE OF THE SHORTER TERM IN CANADA' created with wooden letter tiles

Image: Author

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.

Copyright Minutiae: The Rule of the Shorter Term

A brass copyright symbol overlaid with a wooden ruler that has 'SHORTER TERM' engraved on it, placed on a table with old books and documents.

Image: Shutterstock (AI assisted)

Of course there are many mainstream copyright issues to write about, notably the whole issue of how copyright and AI intersect–and the ongoing dialectic between them–but to mark Canadian Thanksgiving weekend and Columbus Day (or Indigenous Peoples Day, if you prefer) in the US, I have allowed myself the indulgence of probing an obscure corner of copyright lore. I’m going down the copyright rabbit hole to explore the Rule of the Shorter Term, and its implications. Be warned, if you don’t want to know why Steamboat Willie is protected under copyright for longer in Germany than in the US, move on now. But if this sort of minutiae intrigues you, as it does me, read on.

As I commented in my book, “In Defence of Copyright”, copyright as a concept is simple and straightforward—but its application can be fiendishly complicated. This is because of differing national legal frameworks regarding what is copyright protected—and for how long—and what is not. As most of us know, copyright is governed by an international convention, the Berne Convention of 1886, updated on numerous occasions, with its main provisions now incorporated into the rules governing the World Trade Organization (WTO). The Convention provides common minimum standards and rules, but each country is sovereign when it comes to determining how those provisions are to be applied. Add to this different copyright rules in place over the years, especially in the United States, and you get some very deep rabbit holes to explore. One of these involves the “Rule of the Shorter Term”, which I will shorten to RST.

This rule, which dates to the earliest days of Berne, is an exception to Berne’s national treatment provisions. One of the basic principles of Berne, apart from the requirement that member states acknowledge copyright without any formal registration requirements, is national treatment. This means that an author from Berne member Country A should receive the same treatment in Berne member Country B as do nationals of Country B in their home jurisdiction. For example, works of Canadian authors should receive the same protection in the US that US works enjoy. By the same token, under the principle of national treatment, US authors in Canada receive the same protection as Canadian authors do, which may be different from the standard applied in the US.

National treatment is a common standard and is one of the basic principles embedded into most international trade agreements. To ensure there aren’t major discrepancies in protection, all Berne members are expected to meet the minimum standards of the Convention, as amended over the years, including (for most works) a term of copyright protection lasting for the life of the author plus an additional fifty years. While all Berne members apply this basic standard, some go beyond it, offering a term of protection that is longer. This is the case of the EU, the US, UK, Australia, and since the end of 2022, Canada.

However, not all Berne members offer this additional period of protection. This is where the Rule of the Shorter Term (RST) comes into play. It allows Berne members to apply, as a derogation from national treatment, reciprocal treatment with respect to the additional period of protection beyond the required minimum. When the RST is applied, authors of foreign works are denied the benefit of the extra period of copyright protection if their home jurisdiction does not offer protection of a similar duration. So, for example, during the years when the period of protection in Canada for all works, foreign and Canadian, was the life of the author plus 50 years, Canadian rightsholders in the EU only enjoyed a comparable period of protection (i.e. “life + 50”) in EU member states, notwithstanding the fact that EU authors enjoyed a period of protection that was 20 years longer in their home jurisdiction. Because the US, since 1998, also bases its period of protection for current works on life + 70, US rightsholders enjoy the same protection in EU member states as domestic EU rightsholders. In fact, a primary motivation for the extension of the US copyright term twenty-five or more years ago (as I wrote about here) was to ensure that US rightsholders received equivalent protection in the EU to that enjoyed by their EU counterparts.

One of the arguments cited for Canada adopting a longer term was that Canadian rightsholders would also enjoy the longer copyright term of “life + 70” in countries that apply the RST (like EU member states), bringing potential additional economic returns to Canadian creators and industries. The US, by contrast, does not apply the RST. It accords the longer term of protection for all works, regardless of what the home country of the author does. As for Canada, stay tuned. I am saving that for a subsequent blog post.

You can look at the RST from two perspectives. One is to view it as lengthening copyright protection in certain circumstances (Canadian works now enjoy longer protection in EU countries); the other is to shorten it (Canadian works received a shorter period of protection in EU countries when Canada itself had a shorter term). It all depends on your point of view. One result of applying the RST is that when a work has fallen into the public domain in its country of origin because its (shorter) term of protection has expired, it will no longer be protected in the second country that has a longer term. So, for example, if a work entered the public domain in Canada as a result of a shorter copyright term, it would also be in the public domain in the EU notwithstanding the longer term applicable in the EU. Clear? I hope so.

As noted above, the EU explicitly applies the RST. However its application by EU member states is subject to some limitations. Even though the RST rule generally applies, it can be overridden by other considerations, such as bilateral treaty obligations. I wasn’t aware of this until I stumbled across a blog post written by a German copyright professor on the inexhaustible topic of Steamboat Willie entering the public domain. According to Dr. Lukas Mezger, while Willie entered the public domain in the US on January 1 of 2024, he will be protected in Germany for many more years. This is contrary to what I wrote in a an earlier blog post. Mea culpa.

That post discussed copyright differences between Canada and the US, one of them being when works enter the public domain. Disney’s Steamboat Willie was one example. Willie, as was widely trumpeted in the media, entered the US public domain on January 1, 2024, but in fact had become a public domain property in Canada two years earlier. This was well documented in a blog by Donald Taylor, copyright officer at Simon Fraser University.

After explaining how and why Steamboat Willie had fallen into the public domain in Canada on January 1, 2022, (the reason being because Canada’s term at that time was based on the life of the author plus 50 years, and co-author Ub Iwerks–who outlived his co-author Walt Disney by five years–had died in July, 1971), Taylor added that in Germany, which has a term of life + 70, the copyright would not normally expire until 2042. However, he added the caveat that because of the Rule of the Shorter Term, Germany would follow the practice of the home country and let Willie fall into the public domain on the same date as applied in the US, January 1, 2024. But Mezger’s blog (How Mickey Mouse entered the Public Domain in 2024 – but not in Germany) sees it differently.

His argument is that the RST is subordinate to bilateral treaties, such as the 1892 Copyright Treaty between the then German Empire and the United States. That treaty gives US works national treatment in Germany, and vice versa. After the passage of the 1891 Chace Act which offered copyright protection in the United States to works of non-US citizens subject to certain conditions like registering and printing in the US, the United States signed a number of bilateral treaties that guaranteed reciprocal national treatment. So, Steamboat Willie is protected under German law until at least 2042, or possibly later depending on who qualifies as a joint author, based on the German rule of life plus 70 years, according to Mezger. There is relatively recent legal precedent (2006) for the continued application of the 1892 treaty, limiting the applicaton of the Rule of the Shorter Term when applied to US works in Germany.

This copyright trivia as to how long a work is protected in one country versus another, and whether the Rule of the Shorter Term applies, has actual practical consequences. In one well researched case, a publisher of public domain books in the US, Devault-Graves, sought to republish three of J.D. Salinger’s lesser-known essays that had fallen into the public domain in the US. This had occurred because Salinger had neglected to renew the initial 28-year term of US copyright that prevailed at the time (the 1940s). Instead of enjoying a further 28 years of protection from date of publication, the works had inadvertently fallen into the public domain.

The Salinger Estate (Salinger died in 2010) went to court in 2015 to try to stop the republishers, but finally conceded that the essays in question were indeed in the US public domain. Having secured victory in the US, Devault-Graves decided that if the works were in the public domain in the United States, under the Rule of the Shorter Term they must be in the public domain in a number of other countries (i.e. those applying RST rules). They selected Germany as their test case–an unfortunate choice for them–and sought a publisher there. The Salinger Estate opposed. A German court dismissed the Devault-Graves claim that the RST applied in Germany to the works in question, based on the 1892 bilateral treaty. The three Salinger essays remain protected in that country.

Apart from the inconvenient existence of the 1892 German-US Copyright Treaty that limits whether the Rule of the Shorter Term is applied to US works in Germany, there is another widely accepted “convention” referred to as “potential term” that can also affect the period of protection for US works abroad. Although it does not formally exist in the Berne Convention, it is a further limitation on the application of the RST to US works. Potential term refers to the full term of protection that a work would receive under Berne’s “life + 50” principle, absent any formalities. One of the basic tenets of the Berne Convention is that copyright should be granted without any formality, such as registration. Until the revision of the US Copyright Act in 1976, the United States required formal registration to establish copyright, plus also required a formal renewal within a strict time limit in order to access the permitted 28-year extension.

Before the registration requirement was eliminated, many copyrights in the US lapsed due to the low renewal rate. Others lost copyright because of some technicality involving registration. For example, if the © mark, plus year, was printed on the jacket of a book rather than inside the book, a copyright registration would fail. Given that Salinger’s loss of copyright in his three essays was the result of a technical oversight involving failure to renew, under the “potential term” concept, copyright protection should not be lost as a result of faulty registration; it should last (in Berne Convention countries other than the US) until the year 2060, 50 years after Salinger’s demise and for a futher twenty years after that for countries that apply the “life plus 70” rule, (assuming the longer period of protection was in effect in those countries in 2010, the year that Salinger died).

The irrelevance of US copyright cancellations regarding limits on the protection of US works abroad was confirmed in an exchange of letters between the US Commissioner of Patents, Robert Stoll, and the Deputy Director General of WIPO, Shozo Uemera in 1989 when the US joined Berne. The Rule of the Shorter Term (RST) would not apply in other Berne signatory countries when US copyrights were denied or truncated on the basis of fault or negligence in registration. That principle was upheld by a French court in 2009.

So there it is, a tramp through the copyright weeds. If you are a real glutton for punishment, and want to drill down further, I recommend “International Copyright: The Introduction”, by Paul Edward Geller. It is “only” 230 pages long.

Now, what about Canada and the RST? That will be the subject of a future blog.

© Hugh Stephens, 2026. All Rights Reserved.

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.