Canadian Supreme Court issues first Crown copyright ruling
The Canadian Supreme Court has held that the state owns the copyright on works produced under the direction of its contractors, bringing to an end a class-action suit over the copyright on land surveys.
The judgment, split 4-3, marks the first time the Supreme Court has weighed in on Crown copyright, and is likely to draw attention to the adequacy of section 12 of the country’s Copyright Act.
The class action arose out of a project to make land survey plans available electronically. The work was carried out by Teranet, a company under contract for the provincial government of Ontario.
After one surveyor, Keatley Surveying sued Teranet on behalf of land surveyors in the province, Teranetargued that it was the Crown, rather than surveyors, who owned the copyright for the plans.
In a split decision, the Supreme Court has now backed that interpretation, finding that, under section 12 of the Copyright Act, “the Crown will have copyright when a work is prepared or published by or under its direction or control”.
According to the court, this includes work prepared by parties acting under a government contract, or “when the Crown essentially determines whether and how a work will be made”.
The judgment said: “In such circumstances, Crown copyright will subsist even though the Crown is not the ‘author’ of the work because the Crown exercises direction or control over the work’s creation.”
‘Legislative monstrosity’
According to the majority, it is little surprise that legal disputes have arisen over the interpretation of section 12, which it noted had been described as a “legislative monstrosity” characterised by “atrocious drafting”.
The majority judgment contained what could be interpreted as a suggestion to parliament that it ought to consider updating the law, writing: “This provision is a century old. Since this is the first time this court has reviewed its scope, our approach has taken into deliberative account the jurisprudential developments in copyright law in recent decades. Parliament is of course free to consider updating the provision in its current review as it sees fit.”
The Canadian House of Commons’ committee on industry, science and technology has previously recommended updating the law.
A minority opinion agreed that Keatley’s appeal should be dismissed, as the copyright for the work in question belonged to the Crown under section 12, but disagreed with the majority’s interpretation of that provision.
The minority warned that an overly literal interpretation of section 12 would “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”.
Commenting on the judgment for the IPKat blog, Jeremy de Beer, associate professor at the University of Ottawa, said that “the UK, 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 digitisation projects, which often involve public/private partnerships, the task now falls to parliament to update Canada’s Copyright Act,” de Beer added.
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