Oct 2, 2019

Section 12 of the Copyright Act, RSC 1985 c C-42 addresses conditions under which the copyright in a work will vest in the Crown and for what duration. The section has existed in essentially the same form since its enactment in 1921, and it derives from s 18 of the UK Copyright Act, 1911, 1 & 2 Geo. 5, c 46, with no significant change in wording. The law does, of course, contain numerous legislative provisions that have not had cause for amendment or repeal over the years. Passage of time alone does not bring about the need for legislative reform.

In Keatley v Teranet, 2019 SCC 43, numerous interveners took an interest in the Supreme Court’s first interpretation of a century-old legislative provision. A rare opportunity to participate in a case of true first impression can be appealing, particularly when that case calls for interpretation of a provision whose antecedent was also the forebear of similar provisions in other countries, likewise with little to no judicial interpretation. But the participation in Keatley of several public interest interveners[1] unconnected to the factual context signals a desire for change or, at least, clarity in respect of s 12. Abella J for the majority observed at para 55 that, although s 12 had been little considered in the judicial arena and never previously by the highest court, for decades it has been the subject of public advocacy, government processes, scholarly commentary, and, indeed, criticism.

I believe section 12’s arrival to the courts in the mid-2010s reflects implications of a particular instance of a shift from publicly or government stored print records—registered survey plans—toward a reality of data in private hands. The immediate factual dispute between the parties—a creator of those works and the holder of them—was a real one with real implications.

Looking at the immediate dispute, the outcome is a suitable one. The majority and concurring reasons do not differ in any significant way in the outcome. The difference is really in the respective approaches to the interpretation and legislative intent of s 12 and the resolution of its convoluted combination of conjunctive and disjunctive phrases. And by either Abella J’s or Côté and Brown JJ’s path, the requisite direction and control to establish Crown copyright was evident on the facts. The result resolves the immediate question in a pragmatic way, and it is consistent with a modern view of Crown copyright.

As for the broader implications, my key takeaway is that both the majority and the concurring reasons favour a narrowed construction of s 12, both in an understanding of the components of the requiste direction and control for statutory Crown copyright and in the scope of the historical concept of the Crown’s prerogative. This is a positive outcome.

Both sets of reasons correctly recognize that s 12 does not operate to create any copyright. It looks at works in which copyright subsists, and then it vests that copyright in the Crown in the circumstances the words of s 12 require and for the duration provided. The challenge is that the requisite circumstances for this vesting are unclear. The majority and concurring reasons, taken together, are in themselves an illustration of a difficulty with s 12: Its words and structure obfuscate its meaning. Both sets of reasons contain extensive analysis of what is meant by “prepared or published by or under the direction or control of Her Majesty or any government department ” and come to the same conclusion on the facts, but they do not agree on the intended meaning of the jumble of verbs, conjunctions, and prepositional phrases.

Abella J dedicated a paragraph to acknowledge the risk that s 12 could be interpreted to vest a copyright in the Crown, for the duration set out, for a work where no copyright in reality exists. At para 54 she writes for the majority that “[t]here is also a danger of Crown copyright undermining the very purpose it was meant to serve if interpreted too expansively. Sweeping classes of works into the scope of Crown copyright, when such rights were heretofore unacknowledged as being subject to copyright at all, risks impeding the public interest in accessing these works and could compromise the existence of a robust public domain …Put differently, the Crown’s public interest in ensuring the accuracy and integrity of government documents cannot lead to such an expansive Crown copyright regime that the public interest in accessing information is harmed [My emphasis].” Similarly, Côté and Brown JJ note a passing acknowledgment that a work must be subject to copyright protection at all before s 12 can vest in the Crown: para 97.

These cautions reflect the view long expressed by CALL/ACBD and others: Some things, like the law, weren’t meant to attract copyright protection, and those in a position to apply s 12 must be careful not to inappropriately limit access to legal information, the information the public needs to access to know their rights and remedies, through extension of s 12. Abella J’s words are, if obiter, nevertheless a caution that rests at the centre of Crown copyright and copyright protection.

I must also note a few less satisfying aspects of Keatley v Teranet. To me, the most curious is that both the majority and concurring reasons seem to accept, or at least do not challenge, the premise that copyright is the suitable vehicle for ensuring accuracy and authority of materials made available by the government. From this perspective, the judges’ view of the historical Crown prerogative reflected in the opening words of s 12 seems to have been influential. Both sets of reasons tie the historical goal of the prerogative to the interpretation or scope of statutory Crown copyright. The value of Crown copyright is justified by the importance of preservation and assurance of authenticity and reliability of government information.

But, to me, the sources cited to support this justification highlight my unexplored question of why copyright is the vehicle for these goals. The first of two sources the majority cites at para 51, for the proposition that a “[justification] for the continued existence of the Crown prerogative over publishing include ensuring the preservation, authenticity, accuracy and reliability of certain documents,” dates from 1938. The second is twenty years old, and even this seems dated when we consider that, twenty years ago, many of us used dial-up modems and CD-ROMs.[2]

Modern information technology, and legal information technology, surely can offer other possibilities for preservation and authenticity than a centuries-old reliance on the prerogative of the Crown to control publishing. Perhaps this element of the reasons in Keatley underlies Abella J’s invitation at para 90 to Parliament to revisit s 12 for current and forward-looking relevance.

Finally, in the context of primary sources of legal information, Côté and Brown JJ give a nod at para 142 to the submissions of CALL/ACBD and other interveners who presented argument and authority supporting the view that “‘primary sources of law’ or ‘public legal documents’, encompassing statutes, regulations and judicial decisions…should be excluded from the scope of s. 12” and that “no entity — including the Crown — should hold the copyright in them.” The court declined to answer the question, preferring to leave the “complicated issues” the argument raises to another day. Perhaps Parliament will read this deferral of the question as an opportunity to take the next step itself.

[1] I’m active with one of the interveners, the Canadian Association of Law Libraries/L'Association canadienne des bibliothèques de droit (CALL/ACBD). From 2012 until 2019 I was co-chair of its copyright committee. In both that capacity and as co-counsel I participated in this appeal. In 2018, I presented to my colleagues my thoughts about Crown copyright and the view that primary sources of law should be considered free of Crown, or any copyright. For CALL/ACBD, I presented oral remarks and wrote a submission to Parliament on this point during the 2017 statutory review of the Copyright Act.

[2] See also paras 133–135 of the concurring reasons.

John D. Gregory commented
I am pleased that you raised the purpose of Crown copyright. When I was in government, I often encountered arguments that the Crown was claiming copyright in order to protect the integrity of Crown documents to be published by others - and I never understood it. There are lots of ways to protect integrity besides copyright, and that is not what copyright has traditionally been for.