Crown Copyright and Copyright Reform in Canada

• Author: Elizabeth F. Judge
• Pages: 550-594

Crown Copyright

and

Copyright

Reform

in

Canada

Elizabeth

F.

Judge

A.

INTRODUCTION

This

book

is

devoted

to

copyright

reform

and

responds

in

large part

to the

recent copyright

reform

process

and the

government's proposals

in

Bill

C-6o,

An Act to

amend

the

Copyright

Act.1

Numerous copyright issues have

been raised

in

this

recent round

of

reform

proposals

and the

public consul-

tation

process.

In

light

of the

ample complexity

of the

issues

in the

current

reform

agenda,

this

article

has a

somewhat strange premise.

It

seeks

to

call

attention

to

Crown copyright,

an

area

that

is not

included

on the

current

copyright

reform

agenda

but is

slated

for

review

as a

"medium-term" issue,

and

to

argue

that

this

review should

be

prioritized

and

that

significant

re-

visions

in the

Crown copyright scheme should

be

implemented.

Crown

copyright,

or

government copyright, refers generally

to

copy-

right

in

materials produced

by the

government. Practices with respect

to

government works vary tremendously across jurisdictions.

I

wish

to

thank

Ryan Ross

for his

excellent research

assistance

and

dedica-

tion

to

this

project.

I am

grateful

for

funding from

the

Centre

for

Innovation

Law

and

Policy

at the

University

of

Toronto

and

from

the Law

Foundation

of

Ontario.

Bill

C-6o,

An

Act to

amend

the

Copyright

Act, First Reading

in the

House

of

Com-

mons

on 20

June

2005,

/

government/C-6o/C-6o_i/C-6o_cover-E.html>.

550

i

NINETEEN

The

tension with Crown copyright

has

been

a

push

and

pull

for the

gov-

ernment between,

on the one

hand,

the

acknowledged need

to

provide

wide

access

to

government information, particularly laws,

in a

free

and

democratic society and,

on the

other hand,

the

inclination

to

exercise gov-

ernment control over

the

printing

of

materials. Canada's conclusion thus

far

has

been

that

Crown copyright must

be

retained

in

order

to

ensure

accuracy

and

integrity

of

government

materials.

The

exercise

of

Crown

copyright

is

often combined with permissive licensing

to

reproduce mate-

rials,

as is the

situation with federal law.

This

article argues

that

Canada should engage

in a

comprehensive

re-

view

of

Crown copyright

in the

short term

and

suggests changes

to the

Crown

copyright system.

In

support

of

that

joint objective

of

review

and

reform,

this

chapter provides

a

summary

of

other jurisdictions' approach-

es

to

government ownership

of

government-produced works. Canada's

policy

on

Crown copyright parallels

that

which many Commonwealth

ju-

risdictions

had in

place,

but it

needs

to be

modernized.

The

United

King-

dom, Australia,

and New

Zealand have

all

addressed Crown copyright

in

recent copyright amendments

or

reform

proposals

or are

engaged

in a re-

view

of

Crown copyright.

In

many other jurisdictions, primary law, such

as

legislation

and

judicial decisions

by

courts

and

tribunals,

is not

covered

by

copyright

and can be

freely

reproduced.

The

article concludes

by

recommending

that

Crown copyright should

not

apply

to

public legal information because those works

are

produced

with

the

obligation

to

make them available

for the

purposes

of

public

ac-

cess

and

notice

of the

law. While accuracy

and

integrity

of

those materials

are

important objectives,

and

while copyright

may

have been

an

appropri-

ate

legal mechanism

at one

time

to

achieve

those

ends,

other

legal,

and

technological, mechanisms

are

better suited

now to

ensure accuracy

and

integrity, while

at the

same time facilitating

the

public's access

to

those

materials. Government ownership

of

public legal materials

is a

blunt

in-

strument

to

approach

the

laudable goals

of

facilitating

the

dissemination

of

accurate

and

timely public legal information

and

may,

to the

contrary,

work

to

deter

and

delay

the

circulation

of law in

accessible formats. With

respect

to

other government-produced works,

the

article recommends

that

the

Crown copyright

statute

should

be

re-drafted

to

clarify

(and nar-

row)

the

category

of

works

to

which

it

applies

and to

specify

reciprocal

ob-

ligations

by

government

to

publish

these

materials

in

publicly accessible

formats

and

media using appropriate updated technologies.

Crown

Copyright

and

Copyright

Reform

in

Canada

551

Chapter Nineteen

552 IN THE

PUBLIC

INTEREST:

THE

FUTURE

OF

CANADIAN

COPYRIGHT

LAW

B.

CROWN COPYRIGHT

1)

General

Description

Crown

copyright

is

sometimes thought

of as a

single idea encompassed

by

a

single

statutory

section

in the

Copyright

Act,

but it is

more accurately

conceptualized

as

having three general sources:

i)

section

12*5

substantive

provision;

2) the

historic royal prerogative referred

to in the

introductory

clause

to

section

12

which

predates

statutory

copyright provisions

and is

of

perpetual duration;

and

3)

general copyright provisions

in the

Copyright

Act, including such provisions

as the

ownership rules governing copyright

of

works

by

employees.

2)

Section

12

Section

12

provides

for

Crown copyright

and

preserves

the

pre-statutory

Crown

prerogative

to

publish such government materials

as

judicial deci-

sions

and

legislative enactments. Section

12 of the

Copyright

Act

provides

that

"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"

for a

period

of fifty

years following

the end of the

calendar year

of the

publication

of the

work.2

It is

trite

law

that

copyright

law is

wholly

"a

creature

of

statute"

in

Can-

ada.3

Section

89 of the

Copyright

Act

explicitly states

that

"[n]o

person

is

entitled

to

copyright otherwise

than

under

and in

accordance with

the Act

or

any

other

Act of

Parliament

...."4

This principle

that

copyright

is

"purely

statutory

law"5

and

that

statutory

"rights

and

remedies"

are

"exhaustive"6

has

been

affirmed

repeatedly

by the

Supreme Court

of

Canada

to

dispel

the

2

Copyright Act, R.S.C. 1985,

c.

€-42,

.

ca/en/C-42/>,

s. 12.

3

Theberge

v.

Galerie

d'Art

du

Petit

Champlain

inc.,

[2002]

2

S.C.R.

336 at

338, .

lexum.umontreal.ca/csc-scc/en/pub/2O02/vol2/html/2oo2scr2_O336.html>,

210

D.L.R. (4th)

385,17

C.P.R. (4th) 161,

285

N.R.

267

[Theberge

cited

to

S.C.R.].

4

Above

note

2 at s. 89.

5

Tele-Metropole Inc.

v.

Bishop,

[1990]

2

S.C.R.

467 at

477, (sub

nom.

Bishop

v.

Stevens),

_

O467.html>,

72

D.L.R. (4th)

97,

31

C.P.R.

(ad)

394

[Tele-Metropole

cited

to

S.C.R.].

6

Theberge,

above

note

3 at

338.

See

also

Compo

Co. v.

Blue Crest Music

referring

to

copyright

as

"neither

tort

law nor

property

law in

classification,

but is

statutory

law." Compo

Co. v.

Blue Crest Music Inc.,

[1980]

i

S.C.R.

357 at

372-73,105

D.L.R.

(3d) 249,

45

C.P.R. (2d)

i,

29

N.R.

296

[Compo

cited

to

S.C.R.].