Private Member Takes on Crown (Copyright)

February 15, 2024
By Tamara Céline Winegust

Crown Copyright is controversial in Canada. Set out under section 12 of the Copyright Act, Supreme Court Justices have cautioned that, read literally, it “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” (Keatley, infra at para 97 (per Côté J., Brown J.)). On February 8, 2024, MP Brian Masse (Windsor West) introduced Bill C-374, a private member’s bill to amend section 12 of the Copyright Act. The Bill is short (it consists of an amendment to the section and a transitional provision). The proposed amended section is as follows:

Without prejudice to any rights or privileges of the Crown, no copyright subsists in any work that is, or has been, prepared or published by or under the direction or control of His Majesty or any government department.

The transitional provision would have any Crown Copyright in a work cease to subsist on the day the amendment comes into force.

In introducing the Bill, MP Masse stated that “right now [because of Crown Copyright] government research, innovation papers and a number of materials are not released to the public”, and that the proposed amendment would “correct this” and “provide those publications to the public”. However well-intentioned, read literally, the proposed amendments may well cause more mischief: inadvertently launching works into the public domain that were authored entirely by private interests and that would (and could and should) otherwise be protected by copyright.

As written, section 12 of the Copyright Act provides that “subject to any agreement with the author” any work that “is or has been prepared or published by or under the direction or control” of the government “the copyright in the work shall … belong to His Majesty” and be protected for 50 calendar years after publication (compared with the current default term of protection, which is the author’s life plus 70 years). Crown Copyright was among the issues raised during the recent Statutory Review of the Copyright Act in 2018–2019.

In 2019, the Supreme Court of Canada considered and interpreted Crown Copyright for the first time in Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43 (our comments here). In that decision, the Court unanimously agreed that copies of land surveys, prepared by surveyors who were independent contractors, became works “published” by the Crown, and thus subject to Crown Copyright, when they were deposited with the province of Ontario, scanned, and uploaded to the province’s land registry system notwithstanding any copyright in those works originally held by the surveyors by virtue of their authorship. Moreover, the Majority noted that authors of the land surveys could prevent Crown Copyright from arising simply by forgoing deposit of the survey with the land registry office. This outcome differed from P.S. Knight Co. Ltd. v. Canadian Standards Association, 2018 FCA 222, decided a few months prior, where the Federal Court of Appeal held the incorporation by reference of a non-government set standards code (the CSA Electrical Code) into provincial legislation did not amount to “publication” of that work by the government such that Crown Copyright would arise. (By contrast, in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Supreme Court found “judicial reasons, in and of themselves … are not original works in which the publisher could claim copyright” at para 35).

In Keatley, the Supreme Court split 4 to 3 on the approach to assessing Crown Copyright and set out different tests. The Majority, led by Justice Abella, noted that the test under section 12 “is a stringent one”, and concluded that Crown Copyright arose when the Crown “has the exercised sufficient direction or control, consistent with the purposes of Crown copyright, that it can be said that Crown copyright subsist.” Analysis under this test should consider the level of the Crown’s control over both (1) the person preparing or publishing the work; and (2) the work itself. Alternatively, the Minority, led by Justices Côté and Brown, preferred an approach that read into section 12 a requirement that the work at issue be a “government work”, which they defined as any work that has “a public character because of its public purpose” and “where, due to that public purpose, the government has an interest in ensuring accuracy, integrity, and dissemination”.

For the Majority in Keatley, Crown Copyright was triggered because the statutory scheme over the content and form, amendment, ownership, registration, and publication of survey plans in Ontario showed the Crown possessed “complete control” over the publication process. By contrast, for the Minority, Crown Copyright arose because the surveys had a clear public character (defining the legal boundaries of land plots) and contained information of the “highest public importance” (clarifying land ownership). The Crown also had a strong interest in the accuracy of the work, since it would impact the integrity of the land registry system.

Implications of the Proposed Amendment

The outcome in Keatley, and the Majority’s approach to Crown Copyright, has potentially serious implications for businesses and others that work closely with government (e.g., private-public partnerships) or where government, by contract or legislation, manages the production, dissemination, or amendment of works provided to it. It suggests that there are circumstances where government may be able to effectively expropriate copyright in a work that would otherwise be owned by a private interest. The amendments now tabled by MP Masse, by proposing to remove copyright protection from any work that falls within the scope of section 12, may well compound that risk. Beyond further disincentivizing collaboration with the public sector, by changing Crown Copyright to have all works that fall under section 12 become “public domain”, the amendments would remove a level of control over publication and reproduction (and thus dissemination) of such works. In an age where public trust in government is decreasing, and user-friendly digital and AI tools make it easier for bad actors to create and disseminate disinformation, amendments that preserve some copyright in works that fall under section 12 may be a wiser approach to reform compared to elimination of that protection altogether.



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