www.lexpert.ca/usguide | LEXPERT • June 2019 | 39
Otherwise, despite the similarities in
US and Canadian trademark law, differ-
ences remain that have not been covered
by the USMCA.
"Although both Canada and the US are
parties to the Berne Convention, and there
are little differences that can trip people
up," Parker says.
While the Convention, an international
agreement covering copyright, protects
copyright in the original work, the US and
Canada differ on who is considered the au-
thor or owner of the right.
"Under the US 'work for hire' concept,
the employer can be both the author and
the owner of the work," Parker says. "In
Canada, however, the work becomes one
that was created in the course of employ-
ment unless there is an agreement to the
contrary. e employer, then, is considered
the first copyright owner but not necessar-
ily the author — and that's important be-
cause the duration of the right is keyed off
the author's life in both countries."
ere are also differences in the moral
rights regimes. In the US, moral rights ap-
ply only to visual artists; in Canada, the au-
thors of all works have moral rights.
And while the concept of "fair use" and
"fair dealing" are used interchangeably in
Canada, legal advisers need to understand
that they are distinct concepts for the
purpose of comparing Canadian and US
trademark law.
"e US concept of fair use is more
flexible than the statutory concept of fair
dealing found in our Copyright Act," Parker
says. "Fair dealing is an exception to copy-
right infringement and is limited to certain
purposes under the statute, whereas fair
use in the US is not so restricted."
However that may be, copyright owners
in Canada are asserting their rights more
aggressively than ever.
"Historically, copyright owners have
been reluctant to go aer consumers, be-
cause they didn't want to alienate their
customer base," says Andrew Bernstein
in Torys LLP's Toronto office. "But that's
changed, and we see it in cases like Voltage
[Rogers Communications Inc. v. Voltage Pic-
tures, LLC] where the copyright holder is
seeking the identities of thousands of con-
sumer infringers from the ISP."
On the patents landscape, December
2018 saw the implementation of impor-
