Canada's law rules.

When Congress approved the U.S./Canada/Mexico NAFTA treaty late last year. the Clinton administration obligated the U.S. to radically modify its Copyright Act of 1976. At the same time, the U.S. permitted Canada to erect protectionist barriers in the television field, with the combined effect of allowing the Canadians to proclaim, unilaterally, their jurisdiction over certain American broadcasting. By surrendering to the demands of both the Canadians and Mexicans, the Clinton administration has now opened the floodgates to lawsuits for copyright infringement against Americans.

Under the terms of NAFTA, Canadian and Mexican films which have fallen into public domain in the United States can be taken away from Americans.

As a result of NAFTA, Congress amended the U.S. copyright law, (17 U.S.C. 104A), to allow the restoration of copyright to Canadian and Mexican movies that were produced on or after January 1, 1978 and before March 1, 1989. Consequently, companies and/or individuals currently exploiting such films will be forced to relinquish their rights without any statutory protection regarding compensation, and will open the door to litigation by Canadian and Mexican rights-holders.

Some may argue that because a property is in the public domain there is no legal standing for its user to sue on behalf of its being taken away.

The Canadian (as well as Mexican) rationale for such a requirement is easy to understand. Prior to the U.S. becoming a signatory to the Berne Convention in 1989, the U.S. copyright laws were not in conformity with Canada's (and Mexico's) copyright laws relating to formalities and duration of copyright.

Unlike the Berne Convention which mandated no formalities, in the U.S. (if the letter of the law was not followed) it was possible that the film would fall into the public domain.

Thus, the Canadians (and to a lesser extent the Mexicans) wanted the playing field to be balanced.

In a move without precedence, Canada's TV regulatory agency, CRTC unilaterally proclaimed that it -- under subsection 4 (2) of its Broadcasting Act -- had legal jurisdiction over American broadcasting if:

a) their signals were seen in Canada;

b) they solicit advertising in Canada; and/or

c) acquire public performance rights for Canadian television.

This Canadian policy of extra-territorial jurisdiction over American TV services will now encourage Canadian producers to file lawsuits alleging copyright infringement against American programs even though those movies will be deemed in the U.S. public domain.

In the past, this was relatively easy to resolve. If a Canadian movie which lost its copyright protection in the U.S. but was still valid in Canada, was shown on Canadian television, Canadian domestic law would apply. But with the entry of satellite-delivered programming combined with the newly proclaimed jurisdiction by the CRTC the situation is more complex.

In effect, the NAFTA deal will strengthen the rights of Canadians and Mexicans over Americans. This can be further illustrated by a mid-1980 precedent when Intercontinental Communications Inc., a New York corporation, was sued in New York by London Film Productions, a British corporation for infringement of the plaintiff's British copyright. ICI specialized in the distributing of motion pictures, produced by others, that it believed were in the public domain.

In its defense ICI argued that because LFP did not allege any productions that constituted violations of American copyright law, LPF had no legal standing and the Court had no jurisdictional basis to hear this case.

Not suprisingly, the Court held that there was no question of whether the defendant infringed upon plaintiff's copyright under the laws of a foreign country. That was a given. However, what was surprising, was the holding that the court has jurisdiction on the theory "that copyright infringement constitutes a transitory cause of action, and hence, may be adjudicated in the courts of a sovereign other than the one in which the cause of action arose."

American law holds that the actual source of the signal must originate in the U.S. to be generally under the jurisdiction of the FCC. However, in Canada the position is to the contrary. The actual transmission can be outside of Canada, but if the signal is received and intended to be received by Canadians, the CRTC deems that under their jurisdiction.

Thus, it is easy to imagine that an American programmer could find itself in court because of Canada's insistence that he or she was broadcasting in Canada.

Ultimately, if it can be proved that the |authorization' to reproduce the protected work was done in the U.S., that will be sufficient to be deemed an infringing act.