IP Systems in Canada and the U.S. Are Similar But Not Identical

The intellectual property systems of Canada and the United States are so similar that the differences can easily be overlooked. This article highlights 10 differences that can cause cross-border problems.

Canada does not have a “work for hire” doctrine. Work created by an employee may be owned by the employer, but the copyright on work created by an independent contractor belongs to the contractor, even if it is created on retainer. Accordingly, an explicit assignment of copyright is required where the creator is not an employee. The Canadian Copyright Act requires that any assignment of copyright be in writing. In Canada, moral rights may only be waived, unlike in the United States, where they can be assigned. Canada does not have the concept of “fair use.” Statutory exceptions to copyright infringement, called “fair dealing,” are limited to certain identified purposes. Canada has no equivalent to International Trade Commission proceedings and no so-called “border orders,” which are available through U.S. Customs and Border Protection.

However, recently proposed amendments to the Copyright Act and the Trademarks Act would enable Canadian border agents to detain goods they suspect infringe copyright or trademark rights, and permit them to share information with intellectual property rights owners in order to allow them to pursue legal remedies.

The authors caution that their list is not exhaustive, and U.S. companies doing business in Canada should make themselves aware of IP laws and regulations that might affect them.