This article was originally posted on theCourt.ca
Today (March 29) the Supreme Court of Canada (“SCC”) will hear the intellectual property case of Keatley Surveying Ltd v Teranet Inc, 37863 [Keatley] about the issue of copyright in land surveys. Keatley Surveying Ltd (“Keatley”) brought a proposed class action on behalf of all land surveyors in Ontario against Teranet Inc (“Teranet”), a private company operating Ontario’s electronic land registry system (“ELRS”). Keatley claims that Teranet infringed surveyors’ copyright in drawings, maps, and charts (collectively “plans of survey”) by digitizing, storing, and copying them to be accessed by the public for a fee. The question is whether the surveyors’ copyright transfers to the Province of Ontario after the plans of survey have been deposited into the ELRS. If so, Teranet would not be liable for any copyright infringement because they operate pursuant to a license granted by the provincial government.
Perhaps this is not self-evidently legal blockbuster material. Still, many in the legal community are watching this appeal closely. This is primarily so because the SCC will be asked to determine a question with potentially wide-reaching implications—the scope of Crown copyright under section 12 of the Copyright Act, RSC 1985, c C-42 [“CA”]. A holding on this section could dictate whether or not governments and their service providers can assert that copyright has been transferred to them when—through statutory schemes—they digitize and copy private works and make them available to the public. For this reason, Keatley has attracted intervenors such as the Canadian Legal Information Institute (“CanLII”), the Canadian Association of Law Libraries, and the Centre for Intellectual Property Policy. These intervenors believe the case has broad implications for the freedom to access and use public documents in Canada, including public legal documents. I will discuss the background and judicial history of Keatley before analyzing some of the public policy considerations before the SCC.
Background
Land surveyors are a self-governing association of professionals in Ontario who create plans of survey. These plans provide property owners with an accurate determination of the dimensions of their property. As the Ontario Court of Appeal (“ONCA”) notes in Keatley Surveying Ltd v Teranet Inc, 2017 ONCA 748 [Keatley 2017] a land registration system in which copies of plans of survey have been available on request for a fee has existed for some 200 years in Ontario (para 10). In 1991, Teranet and the Ontario government began the joint project of creating the ELRS. No portion of the fees that users are charged is paid to the surveyors (Keatley 2017, para 10).
Judicial History and s 12 of the Copyright Act
Much of the early litigation in this copyright dispute revolved around the issues of certification of class proceedings and costs (see Keatley Surveying Ltd v Teranet Inc, 2012 ONSC 7120 [Keatley 2012] and Keatley Surveing Ltd v Teranet Inc,2014 ONSC 3690). The case finally came before the court for a decision on the merits in 2016 with Keatley Surveying Ltd v Teranet Inc, 2016 ONSC 1717 [Keatley 2016], presided over by motion judge Belobaba J.
Teranet’s Core Argument
From the beginning, the parties agreed that plans of survey are copyrightable as “artistic works” (see Keatley 2012, para 4). The contentious issue was who holds the copyright in these works. Keatley plead that surveyors hold the rights and that since s 3(1) of the CA gives copyright owners exclusive right to reproduce and publish a work, Teranet infringed these rights (Keatley 2012, para 178). Defences like fair dealing apply if Teranet does not own the copyright or is not properly licensed, but Teranet’s key argument is that copyright in the plans of survey is transferred to the Province of Ontario. Writing for the judicial panel at the ONCA, Doherty JA agreed with Belobaba J and Teranet that the Province of Ontario is the copyright holder due to the operation of s 12 of the CA, the “Crown copyright” provision.
Section 12 of the Copyright Act
Section 12 provides that copyright will be held by the Crown for 50 years if a work is “prepared or published by or under the direction or control” of the Crown. This section has two branches to it: 1) works that are prepared under the direction or control of the Crown and 2) works that are published under the direction or control of the Crown. While neither court held that the plans of survey were “prepared” by or under the Crown, they both found that the plans were “published” in this fashion. They had different reasons for arriving at the same conclusion.
Differing Approaches at the Motion and Appeal Level
Belobaba J’s approach relied more heavily on an analysis of provincial legislation such as the Registry Act, RSO 1990, c R 20 and the Land Titles Act, RSO 1990, c L 5 (Keatley 2016, paras 6-9). In the appeal Keatley issued a notice of constitutional question, contending that Belobaba J’s judgement generated a vires problem. Section 89 of the CA clearly provides that “[n]o person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament.” Therefore, Keatley asked how the Province could decide when copyright subsists and when it may be taken away given its lack of constitutional authority over this federal area of law. Doherty JA for the ONCA wrote: “I would not describe the applicable provincial legislation as transferring ‘ownership’ of the copyright to the Province.” Rather, it is “s 12 of the Copyright Act that vests copyright in the Crown…” (ONCA, para 54). This more exclusive focus on s 12 appears to correct the vires problem. At the same time, there are some remaining public policy issues that Keatley and several intervenors are hoping the SCC will be alive to.
Will the Scope of Crown Copyright be Interpreted Differently by the SCC?
The ONCA determined that “any work” that is prepared or published by or under the direction and control of the Crown could be interpreted as one where copyright vests with the government (Keatley 2017, para 29). The ONCA’s interpretation of the word “published” is wide enough to raise some concerns. Due to the ambiguity within the text of s 12, the SCC arguably has some room to maneuver in choosing an interpretation that is faithful to Parliament’s intent and the purpose of the provision, that also has positive public policy consequences in the context of our ever-changing digital economy and society. An expansive interpretation could mean that the Crown can expropriate pre-existing copyright from authors of a work when this work is given to government authorities in abidance with regulatory requirements. Interpreting s 12 more narrowly could limit the scope of Crown copyright to works commissioned by the government and created by government employees and agents. This latter position would be in line with the argument that Crown copyright is needed to ensure the accuracy and integrity of government works. It would also reflect what the SCC has stated previously in Théberge v Galerie d’Art du Petit Champlain inc, 2002 SCC 34 (para 30), that copyright law should be applied to strike a balance between rewarding authors and disseminating creative works to the public.
Criticism of Crown Copyright
Crown copyright has been criticized by David Vaver, who notes it has the potential for “unfairness to certain authors.” Others have more bluntly called s 12 a “legislative monstrosity” for its ambiguity despite it being only 85 words long.[1] Needless to say, comprehensive reform of s 12 would be the business of the legislature, not the SCC. However, the SCC has agreed to hear intervenors who will make a number of arguments about how interpreting s 12 too broadly may have negative reverberations, especially in an era when we’re trying to have greater access to justice, which includes access to law and legal documents.
Possible Application of Section 12 to Public Legal Documents
Canadian courts have not yet commented on whether s 12 of the CA includes public legal documents. Wagner CJ has said in remarks that judges need to “provide better access to justice for Canadians” including “access to information.” An overly broad scope for Crown copyright seems at odds with current notions of Open Government and “with democracy more generally,” as Luanne Freund and Elissa How have written.[2] It does so by placing restrictions on the reuse of “government” materials. Such a situation could enable the government to charge fees, institute overly restrictive terms of use, or otherwise limit access to public legal documents that could impede the public’s ability to review legal information, know their legal rights and responsibilities, advocate for themselves in court, and participate in legislative processes. There may be disproportionate effects on individuals and organizations that cannot afford to pay for access to primary legal materials, including academic researchers, innovative start-ups, and self-represented litigants. Intervenors in Keatley like CanLII no doubt want to set a precedent that could limit s 12 such that Crown copyright cannot be used as a device to withhold or limit the exchange of information. CanLII stands to benefit from a climate of more frictionless digital documentation, and arguably so does the public.
Concluding Thoughts
Were Wagner CJ and his fellow justices to agree that a wide scope for s 12 of the CA has negative public policy implications, they could turn to the SCC’s decision in Marzetti v Marzetti, [1994] 2 SCR 765 for the proposition that public policy considerations are relevant when applying a purposive approach to statutory interpretation (paras 85-87). The original purposes of Crown copyright, Elizabeth Judge argues:
either no longer apply or, where they do continue, can be better served by other legal or technological means than asserting ownership over the materials and controlling the means of reproduction. Copyright, in short, is not the best way to achieve the public purposes for which the Crown copyright system was designed.
If the original purposes of s 12 are no longer as relevant today, there may be other ways for Parliament to achieve its objectives that are more in keeping with its current commitments to openness and access to justice. Before the internet, Crown copyright was a way to recoup costs in the copying, printing, publishing and shipping of documents. In a post-internet world where dissemination is largely electronic and inexpensive, the underlying rationale for Crown copyright is weakened. Returning to the instant case, I believe there are genuine questions about Teranet’s business model insofar as it denies the copyright claims of Ontario land surveyors. The SCC has an opportunity to overturn the ONCA and set a precedent that many would keenly welcome, including copyright reformers and open government advocates, not to mention the land surveyors of Ontario.
Written by Jesse Beatson. Jesse Beatson is a third year J.D. student at Osgoode Hall Law School.
[1] Barry Torno, “Crown Copyright in Canada: A Legacy of Confusion” (Department of Consumer and Corporate Affairs Canada, 1981) 49.
[2] Luanna Freund and Elissa How, “The Quagmire of Crown Copyright: Implications for Reuse of Government Information” (2015), 40 Can L Libr Rev 11.