[Guest Post] Can the Government Get Your Copyright? The Supreme Court of Canada Says “Yes”.

This Kat found it quite fascinating when she saw last week that Canada’s Supreme Court ruled on the question of whether the Government of Ontario, Canada owned copyright in a work created for someone else (home owners, developers and other private citizens who commission surveyors),  but used by a government partner. Coming on the heels of a similar public interest consideration in Uganda, this Kat is excited that Professor Jeremy de Beer (University of Ottawa) [disclaimer: Prof de Beer represented the Intervener Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic in the Supreme Court] is able to provide this detailed explanation and analysis of the judgment of Canada’s top court: 

Can the Government Get Your Copyright? The Supreme Court of Canada Says "Yes"

by Jeremy de Beer

“When and how can the government get copyright protection? In a recent Canadian decision on Crown copyright, Keatley Surveying v Teranet, the Supreme Court has for the first time addressed that issue. Its guidance, however, will be hard to implement in practice. Parliament should respond by reforming the century-old statutory provision.

The decision ends a class action lawsuit brought by land surveyors against a company that makes land survey plans available electronically. The company, Teranet, partnered with the provincial government of Ontario to build a database of documents about all land in Ontario, including digital surveys that mark the legal boundaries of property in the province. When surveyors sued Teranet, one of the company’s defences was that surveyors don’t own the copyrights; the government does. Thus, an issue of Crown copyright arises.

The Test for Crown Copyright
The Court finds, by virtue of section 12 of Canada’s Copyright Act, that copyright belongs to Her Majesty in several different scenarios. Most clearly, the government gets copyright in a work that is prepared by the government, including employees of Her Majesty or any government department (para 64).

This copyright is the Crown's! (Image: Jeremy de Beer)

The government also gets copyright in a work that an independent contractor prepares under government’s direction and control (para 65). In effect, the government may own copyright by reason of a “work-made-for-hire” [the work-for-hire rule does not ordinarily exist in Canadian copyright law].

Copyright can also belong to the government if a work is published by or under the direction or control of the government. That aspect of the test for Crown copyright is the most convoluted and controversial. The seven-member panel of the Court split four against three, concurring in the result but for different reasons.

No wonder the judges cannot agree on the proper statutory interpretation. The provision is described as a “legislative monstrosity” with “atrocious drafting” (para 55). See for yourself:

Where copyright belongs to Her Majesty
12 Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

“Merely making someone else’s work available to the public is insufficient”, writes Justice Abella for the majority of four judges. While the plain language of the Act appears to give the government copyright in any work “published by” the government, such an interpretation “profoundly derogates from the general scheme of the Act” (para 67).

The three other judges, in reasons coauthored by Justices Côté and Brown, agree that “a literal reading would effectively empower the Crown to expropriate copyright from independent creators in any copyrightable work merely by publishing the work itself or causing a third party to publish the work” (para 97).

It's a split decision (Image by Jeremy de Beer)

According to the four-judge majority, to acquire someone else’s copyright, the government must exercise “direction or control over the publication process, including both the person publishing the work and the nature, form and content of the final, published version of a work” (para 67). In the case of land surveys made available online, the majority observes that the government has “complete control” over the publication process.

But what about other situations: Intellectual property applications made available to the public by governments? Securities prospectuses filed with and published by financial regulators? Or lawyers’ pleadings prepared according to strict rules and then put onto court websites?

Those examples have some of the “relevant indicia of governmental direction or control”, which according to the majority “may include the presence of a statutory scheme transferring property rights in the works to the Crown; a statutory scheme which places strict controls on the form and content of the works; whether the Crown physically possesses the works; whether exclusive control is given to the government to modify the works; the opt-in nature of the statutory scheme; and the necessity of the Crown making the works available to the public” (para 69).

The minority of three judges criticize the majority’s “question of degree” test, because it provides no future guidance on what less than complete control is “sufficiently extensive” for Crown copyright. The lack of guidance, they write, “will inevitably create instability in Crown copyright” (paras 110-12).

The minority would, therefore, focus on acts of preparing or publishing the work, not the work that is prepared or published (para 117). Furthermore, the minority would vest Crown copyright only in “a government work” that is prepared by or under the direction or control of the Crown (para 99). While any kind of literary, dramatic, musical, or artistic work may be Crown copyrightable, a government work is a work that “serves a public purpose” (paras 99, 141). The minority writes: “These will be works in which the government has an important interest concerning their accuracy, integrity, and dissemination” (para 127). Crown copyright, under this theory, is basically a tool to control distribution of and access to a work.

In the end, all judges agree that the scope for Crown copyright is narrow. Nonetheless, in this case, surveyors lose their copyright to the government; either because of the complete government control over the process of making surveys available to the public, or because the accuracy, integrity, and dissemination of these works are crucial to proper functioning of the land registry system in Ontario.

The surveyors’ class action is effectively over. But there are broader impacts to consider.

Balance is at the heart of copyright law
For many years Canada has been at the forefront of a shift in global copyright law that balances both authors’ and users’ rights. In Keatley the Court summarizes Canada’s pathbreaking copyright jurisprudence but goes even further than previous decisions to emphasize how balance is “at the heart” of copyright law (para 140).

The Court clarifies that fair dealing is only one “emblematic” component of the balancing approach to copyright law in Canada. Both the majority and minority concurring reasons speak powerfully of users’ rights, not merely interests or expectations (paras 46, 140). The Court also explains that “the users’ rights framework” is “so integral to Canadian copyright law” that “[a]ll provisions of the Copyright Act … must be interpreted with this balance in mind”.

Crown copyright is “uniquely amenable to realizing a balance”, in effect recognizing the government as both a creator of its own works and a user of others’ works (para 47).

Should public legal documents be copyrightable?
Multiple interveners before the Court argued that no one should own sources of law or public legal documents, such as statutes, regulations, and judicial decisions. Copyright, whether owned by the Crown or anyone else, can impede free access to the law, which everyone has the right to know.

The minority judgment expressly acknowledges this concern about copyrighting the law but would “leave this issue for another day” (para 142). This downplays the fact that plans of survey are actually sources of law. In Ontario, like many jurisdictions, registered plans of survey mark the legal boundaries of property and are relied upon to determine property rights and obligations (paras 82, 143).

Similar issues are playing out now in the United States, where the U.S. Supreme Court has agreed to hear a case involving copyright in annotated legal code: Georgia, et al. v. Public.Resource.Org, Inc. Back in Canada, “another day” could come soon, as the Supreme Court is considering whether to take another Crown copyright case involving ownership of the Canadian Standards Association’s Electrical Code, which is incorporated by reference into several regulations and statutes.

More fundamentally, neither party had reason to raise the obvious question of whether copyright can subsist in plans of survey at all. While Canada’s Copyright Act, like the Berne Convention, defines an “artistic work” to include maps and plans, the surveys at issue in this case can hardly be original. Plans of survey must, to be useful, accurately represent facts; there is little room for the skill and judgment copyright requires.

Over to Parliament
The majority reasons in Keatley conclude by noting that section 12 of the Copyright Act is a century old. The Court writes: “Parliament is of course free to consider updating the provision in its current review as it sees fit” (para 90). That language, combined with the Court’s quote about this legislative monstrosity, is about as blunt as judges can be about the need for statutory reform.

Beaker, looking at Parliament (Image by Jeremy de Beer)

A Parliamentary committee recently held hearings and reported on Canada’s Copyright Act. Crown copyright was heavily criticized: “In fact,” writes the Committee, “no witness supported its continuation, at least in its current form – a rare point of consensus.” The Committee recommended changing the law.

The United Kingdom, Australia, and New Zealand have all abandoned the atrocious drafting of section 18 of the original 1911 UK Copyright Act that Canada’s section 12 still mirrors. As Crown copyright takes on heightened importance in the era of big data and mass digitization projects, which often involve public/private partnerships, the task now falls to Parliament to update Canada’s Copyright Act”.