In Keatley Surveying Ltd v Teranet Inc (Keatley), 2019 SCC 43 the Supreme Court of Canada (SCC) examined Crown Copyright’s scope and application for the first time. Furthermore, section 12 under Canada’s Copyright Act (the Act) has not changed since the provision was enacted a century ago. This post summarizes the SCC’s Keatley decision and provides a critique on the court’s interpretation of Crown Copyright.
Summary of the SCC Decision
On September 26, 2019, the SCC clarified that the Ontario government owned all land surveys produced by Ontario’s land surveyors. These surveys were filed in Teranet’s online land registry database because the Ontario government delegated this responsibility to Teranet. This assignment authorized Teranet to profit from the public’s viewing of the land surveys.
The Majority held that a work must either be prepared or published by the government for Crown Copyright to vest. Justice Abella narrowed the notoriously convoluted section 12 of the Copyright Act by determining that government publication alone is not enough to trigger Crown Copyright. The work published must also involve a sufficient degree of government direction or control over either the person publishing the work or the nature, form and content of the final version. The court determined government control by referring to the statute. Therefore, Crown Copyright vested because the Land Titles Act and Registry Act gave control to the Ontario government over land survey information.
Chief Justice Wagner reasoned that the degree of sufficient direction or control exercised by the Crown was irrelevant. Instead, a work must serve a public purpose by which vesting the copyright in the Crown would further that purpose.
The Keatley Decision Did Not Alleviate Legal Ambiguities
While the SCC narrowed the scope of section 12, the court did not clarify the provision’s compatibility with the purpose of Canadian copyright law. In Keatley, the SCC articulated that Crown Copyright was meant to protect works prepared or published by the government in order to guarantee the authenticity, accuracy and integrity of the works in the public’s best interest. The SCC was clear that this purpose must be balanced with creators’ rights to be free from de facto expropriation by any level of government. However, this justification does not take into account copyright law’s purpose or its parameters.
Firstly, Keatley may allow for Canadian governments to claim copyright protection in fact-based works. As Professor Craig identified, no interested party in Keatley should have copyright in the land surveys. For a work to be protected under the Act, the idea must be original and fixed into form using skill and judgment. This criteria was not addressed by the SCC because the disputing parties did not challenge the proprietary elements of the fact-based land surveys.
Secondly, the purpose of the Act is to balance the public interest by encouraging the dissemination of works and obtaining a just reward for the creator. As Professor Vaver noted, the Copyright Act should not be used as a tool to further the Crown’s control over information that should be openly available for the public to access and copy. As section 12 currently stands, any member of the public may infringe copyright if they amend or disseminate a protected work without government permission. Yet Professor Vaver notes that nowhere in the SCC jurisprudence is copyright legitimized as a tool to stifle freedom of expression. Finally, section 12 awards the government, with the same, if not more, exclusive rights and privileges as any other creator, which is evident in the definition of copyright in section 3 of the Act. Crown Copyright not only excludes people from reproducing information that should be publicly available but also commodifies this information through a monopolization process. This approach may have been valid centuries ago but, when applied today, undermines the tenants of a modern democracy.
These contradictions may result in problematic scenarios in light of the COVID-19 crisis. For instance, some government publications may neither receive appropriate critique from non- contracted experts nor be disseminated through methods that would fall outside of the Act’s fair dealing provision, section 29.
Is the Time Ripe for Policymakers to Amend Section 12?
Crown Copyright reform may be the only topic within the copyright policy-making debate in which most experts agree. The 2019 report of the Standing Committee on Industry, Science and Technology (INDU) recommends that the government’s copyright exercise over publications created in the public interest should be the exception rather than the rule. Recommendation 11 advocates for an open licensing scheme consistent with transparent government and data management to improve Crown Copyright management.
In Canada, many copyright stakeholders would prefer to simply abolish Crown Copyright and mandate the protection of confidential publications to other statutes, as demonstrated in INDU’s report. Consensus was even reached between the NDP and Conservatives, as both parties argued that Crown Copyright should be outright abolished. Abolishment could be a viable option because there are other solutions to authenticate government sources that do not require the Copyright Act. As Professor Craig explained, the government can more effectively authorize documents through official mechanisms, such as a seal, that would allow the public to modify or publish their own unofficial version of the work.
Canadians Must Remain Alert to Crown Copyright Laws to Avoid Infringement
Section 12 of the Act remains good law and Canadians must remain vigilant of any potential legal implications. Crown Copyright may apply if your work required government approval prior to development; received government funds; or was directed by statute. Professor Craig also advises to be aware that municipal, provincial, and federal governments have different licensing schemes. To be granted permission to adapt, reproduce, revise or translate Federal materials, you must contact Canadian Heritage at PCH.info-info.PCH@canada.ca. Heritage Canada specifies: “Permission is always required regardless if the purpose of the reproduction is for personal or public non- commercial distribution, or for cost-recovery purposes”. Until policy-makers direct Canadian Copyright law, Canadians must be alert to the risk of infringing Crown Copyright.
Written by Natalie Chodoriwsky. Natalie is going into her third year at Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.