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Copyright and the Public Domain

By: Georgina Danzig, Nikita Munjal | Last updated: October 3, 2022

Copyright is the exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work. This means that if you conduct any actions or authorize any acts that are the exclusive rights of the copyright owner, absence a licence or permission to do so, you are infringing their copyright right. In other words, if you produce, reproduce, publish or perform another person’s work without their permission, or direct others to do so (absent certain limited exceptions or defences) you are infringing upon their copyright.

If you are accused of infringing someone else’s copyright, there are a few defences you can rely on. You can argue that your copying was exempt from copyright infringement under the fair dealing exception (also known as fair use in the United States) or that you did not copy a substantial portion of their work. See our dedicated article for more information on copyright infringement defences.

In this article, we will focus on another defence to a claim of copyright infringement – that the work is not protected by copyright because it is in the public domain.

How does a work enter the public domain?

The purpose of copyright law is to balance the right of the creator to be compensated for the copyrighted works against the right of the public to access, use and innovate from these copyrighted works. To achieve these policy objectives, limits are placed on how long copyright protection lasts and the scope of that protection.

The term for expiration of copyright are determined on a country-by-country basis. In the United States, for example, the term is 70 years following the death of the author. In Canada, as at the time of writing this article, but not for much longer, the term of copyright is 50 years following the death of the author.

Canada’s term of copyright is subject to change as a result of the Canada-United States-Mexico Agreement (CUSMA), which replaced the North American Free Trade Agreement (NAFTA). Following accession to the CUSMA, copyright terms in Canada will be extended to “not less than the life of the author and 70 years from the author’s death.” Under the terms of the agreement, which came into force on July 1, 2020, Canada has until the end of this year to extend its copyright terms to ensure harmonization with the United States.

Once the copyright on a work expires, it enters the public domain, meaning it is free to use and copy (that is, the copyright holder no longer has legal standing to pursue a claim against you).

For example, on January 1st of 2022 (celebrated as Public Domain Day by the copyright community), A. A. Milne’s Winnie the Pooh entered the US public domain. Telecommunications service provide Mint Mobile, for example, wasted no time in capitalizing on Winnie the Pooh’s entrance into the public domain by releasing an advertisement parodying Winnie the Pooh. Their tongue-in-cheek use of the work, combined with the timing of their advertisement’s release, generated substantial engagement on social media. Note while the initial work may be in the public domain, adaptions or derivatives of a work, Disney’s Winnie the Pooh, for example, are still protected by copyright.

If you are using a work that is in the public domain, it is important to be mindful of the copyright terms of other countries so that you are not making a work accessible in a country where it is still protected by copyright. For example, if you are incorporating a musical work in a film that you are creating, you may want to limit its distribution to countries where the copyright has expired or seek a license from the copyright owner for the work’s use in countries where the copyright still exists. Careful attention should be paid to any potential changes in a country’s copyright terms if you are planning on launching a product or service incorporating a work based on its entrance into the public domain. For example, and as already stated, CUSMA, copyright terms in Canada will be extended to “not less than the life of the author and 70 years from the author’s death.” The term extension will not retroactively affect any works that are already in the public domain, but if you were planning on using a work set to enter the public domain in the next few years, you may need to revaluate your strategy.

A work can also enter the public domain if the copyright owner has chosen to provide it to the public because they believe in open access to information. An author, for example, might make their book available online for free under a creative commons license.

A creative commons copyright licence allows creators to make their works available for use, distribution, adaption, among other things, as long as the user of the work credits the creator. It should be noted that creative common licenses may vary in the terms of rights they grant users. For example, if you come across an artwork online that has a creative commons license and you want to build upon that artwork and sell it, you should ensure that the creative commons license does not prohibit commercial uses of the work. If you use a work for a purpose that the license does not expressly allow, you may receive a cease and desist letter or be subject to a legal proceeding for infringing copyright.

How do I know if a work is in the public domain?

As mentioned above, one of the ways you can determine if something is in the public domain is by determining if the copyright has expired. This would involve carefully reading the terms for copyright protection for your country and any other country where your use of the work may be viewed.

A factor that may affect whether you can use the work is by checking whether a country is a signatory of the Berne Convention for the Protection of Literary and Artistic Works, a copyright treaty that established a minimum copyright term and the rule of shorter term (that is, if the copyright has expired in the work’s country of origin, the author cannot benefit from a longer copyright term in another country). Note that not every country has signed on the Berne Convention and some of the signatories, like the United States, do not follow the rule of shorter term.

While searching for the expiration of a copyright, you may want to search the registered database. These databases are often administered by the government and allow you to search for copyright on original works. Note that if you don’t find a registration for a work that does not necessarily mean that the copyright has expired. In Canada, copyright protection exists as soon as a work is created (provided that certain conditions in the Copyright Act have been met). This means that a creator does not have to register copyright with the government to obtain ‘copyright.’ As a result of the lack of a requirement to register a copyright, you should not assume that any works that are publicly accessible, disseminated, or disclosed are part of the public domain.

If you are unsure whether a work is in the public domain or have received a cease and desist letter and would like our help, contact us for a complimentary and confidential initial telephone appointment with a member of our team.