I’m working on a film based on a book that is in the public domain in Canada, but not in the public domain in the United States. I plan to release my film on the Internet (YouTube and Vevo). I am Canadian and will create this film entirely in Canada. Will there be a copyright problem since people can see the film in regions where it’s not in the public domain?
There is no clear answer to this question. It is true that works may be in the public domain in one country and not in the public domain in another due to differing copyright laws. In Canada, copyright expires 50 years after the death of the work’s author at the end of that year [1]. In the United States, every work published earlier than 1924 is in the public domain [2]. Whether other works fall into the public domain in the United States is based on a variety of factors [2]. Additionally, these laws are subject to legislative change.
Thus far, no Canadian court has dealt with facts similar to this these. The closest case to this one is Roy Export Co. Establishment v. Gauthier [3]from the Federal Court, Trial Division in 1973. In this case, the defendant rented out copies of the film “The Gold Rush” which was under copyright in Canada at the time. The defendant had purchased a print of film in the United States where it was in the public domain. However, the defendant was distributing the film in Canada so the Court found that he had infringed on the copyright. The main point to be taken from this case is that it matters where the film is distributed.
Whether copyright is infringed in the current matter would come down to whether posting your film on the Internet would be seen as distributing it in the United States as well. Since YouTube and Vevo are American companies, it would be best to err on the side of caution and not post the film on those websites.
[1] Copyright Act, RSC 1985, c 42, s 23 (1)
[2] Hirtle, P. B. (2019, February 7). Copyright Term and the Public Domain in the United States. Retrieved February 11, 2019, from https://copyright.cornell.edu/publicdomain
[3] Roy Export Co. Establishment v. Gauthier, [1973] FCJ No. 401, 1973 CarswellNat 439
The Queen’s Film & TV Research Group are not lawyers, and this is not legal advice! For more information on copyright law, please see the Copyright Law section of this site. Find out more about Queen’s Law on their website, and Pro Bono Queen’s at the PBSC Queen’s site.