The Supreme Court of Canada on Friday heard a dispute over the copyright of land surveys, with interveners from across the legal community.
Vancouver lawyer Luciana Brasil, a partner at Branch MacMaster LLP, who represented Keatley Surveying Ltd., focused her oral arguments on the statutory interpretation of s. 12 of the Copyright Act. According to the SCC’s case summary, once plans of survey are deposited, as required, in the land registry office, the ownership and copyright of the plans are transferred to the province under the Copyright Act.
S. 12, “Where copyright belongs to Her Majesty,” says: “Without prejudice to any rights or privileges of the Crown, 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 and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.”
One point of discussion during the hearing was the meaning of the phrase “prepared or published by or under the direction or control of.” One intervener suggested that phrase was meant to apply to works prepared by someone else but published by the Crown or prepared by the Crown and published by someone else.
Brasil said that, under that interpretation, if the government were to take an independently written report and publish it on its website, the government would then own that work with the click of the button, creating a “radical” way of getting the copyright.
She said at the hearing that the logical interpretation of the wording would be to view it as an extension of how natural authors are treated when they create works during the course of their employment, presumed to be owned by the employer unless there is another agreement. She said at the hearing that the Copyright Act was “unquestionably designed” to create a shorter term of copyright for published works, which was different than unpublished works, and to provide certainty on when the clock would start “ticking” on the copyrights. She noted that not all works prepared by the Crown were published, which would require the “prepared or published by” wording in the Copyright Act.
“The real error of the courts below was in parsing the provision without any of the considerations we just reviewed,” said Brasil.
The case was further complicated by the French version of the law, which is not worded the same way, said Justice Suzanne Côté.
Interveners in the case included the Canadian Legal Information Institute and the Canadian Association of Law Libraries, which submitted factums discussing the implications of a policy that allowed the Crown to copyright the law, citing the structures of laws in the U.K., England, Australia, New Zealand and the U.S.
“Taken literally, the recognition of Crown copyright in primary sources of law would allow the Crown to deny access to court decisions, statutes, administrative decisions and regulations or limit access based upon willingness to pay,” wrote the Canadian Association of Law Libraries in its factum.
Rahool Agarwal, a lawyer at Lax O'Sullivan Lisus Gottlieb LLP, who represented CanLII, said at the hearing that the case relates to to a “debate of utmost legal importance”: Whether the Crown “owns” the law and can control its dissemination. The risk is that a service like CanLII could become cost-prohibitive if a fiscally minded government were to charge escalating fees, said Agarwal.
“The law is not, in today’s Canada, for the monarch to establish and disseminate at her discretion,” said Agarwal. “The law is made by the public.”
Howard Knopf, counsel at Macera & Jarzyna LLP in Ottawa, who was not involved in the case, cited to Legal Feeds another case, P.S. Knight Co. Ltd. v. Canadian Standards Association, 2018 FCA 222, which explores the issue of copyright infringement of the CSA Electrical Code, developed by private corporation Canadian Standards Association, but recognized as a national standard.
“All of this has everything to do with the phrase of the decade, access to justice,” says Knopf. “Can you have access to justice if you have to spend several hundred dollars to buy a book to install an outlet for a coffee machine? Or a land survey? If they want to get paid every time a lawyer looks at the survey, how is that access to justice? The surveyor got paid for doing the survey in the first place.”
G.J. Underwood, who represented the intervener Attorney General of British Columbia, said in the hearing that it is the province’s policy not to infringe copyrights and it acquires rights to publish copyrighted material before publishing it when possible. Underwood says the province needs to be able to discern when the Copyright Act will have the effect of depriving the previous copyright holders of their rights.
“We need a test from this court to enable us to determine when s. 12 will operate to transfer copyright,” said Underwood. “Certainty is essential.”