Photo by Johan Mouchet ()

Pankhuri Malik is an IPilogue Writer and an LLM candidate at Osgoode Hall School of Law.

The Australian Indigenous community just scored a major win for their cause to . It was undoubtedly an ambitious attempt and one that I personally did not expect the government to support. Taking many of us by surprise, the Australian government took a giant step towards reinstating the pride and honour at the core of Indigenous sentimentality by freeing the Indigenous flag and making it available to everyone to use.

Copyright in Indigenous Works

In the fight for land, representation, and independence, intellectual property disputes concerning Indigenous peoples are often overshadowed. One such dispute had been afoot in Australia for five years. Mr. Harold Thomas, the artist and copyright holder of the Australian Indigenous Flag (“the Flag”) is an Elder of the Indigenous community. He the Flag in 1971 as a symbol of Indigenous resilience and representation. This flag has been the subject of much controversy lately. A quick timeline of the dispute is here:

��

Crown Copyright in Other Jurisdictions

Provisions for copyright ownership by the Crown are a consistent feature of copyright laws in commonwealth countries. of Australia’s Copyright Act, 1968 provides for Crown copyright for works created under the “direction or control” of the Crown. Much like section 12 of Canada’s ,�� this provision was also adopted from the .

These provisions have been used to retain Crown ownership over literary, artistic, or otherwise creative expressions. In Canada, the Supreme Court interpreted section 12 in , Inc. to maintain Crown copyright in works that have been created under the direction or control of the Crown and are “government works”. That is, these are works that serve a public purpose and vesting the copyright with the government furthers this public purpose. Similarly, in the UK[1], it was held that designs for coinage prepared by the company Ironside under an order by the Royal Mint were prepared under the direction or control of the Crown. The copyright, therefore, vests with the Crown.

Crown’s Acquisition of Copyright in Australia

The “Free the Flag” movement in Australia gained momentum by 2020. Since the Flag was created in 1971 by Mr. Harold Thomas completely devoid of governmental interference, section 176 of the Copyright Act was unhelpful. Alternatively, the government considered exercising its powers under section 51(xxxi) ��of the Constitution to compulsorily acquire copyright in the Flag from Mr. Thomas. Under section 51, within its peace, order and good government powers, the Australian Constitution empowers the Crown to acquire any property with respect to which it has the power to make laws. Since copyright law-making power lies with the Crown under section 51(xviii), the government would have been within its constitutional authority to green light such an acquisition. However, given the tumultuous history of governmental relationships with the Indigenous community, such an acquisition may have been and drastic.

Finally, on January 25, the Australian government entered into an agreement with Mr. Thomas whereby it purchased rights in the Flag, paid off the licensees, and set up an annual scholarship for Indigenous students for a whopping $20 million AUD. This transaction “freed” the Flag from private control, making it available for both commercial and non-commercial use.

Interestingly, this is not the the Australian government has purchased copyright in an Indigenous work after the fact. In 1967, the Governor and the Reserve Bank paid $1000 AUD to Mr. David Malangi for using his original artwork on the Australian dollar bill circulated in 1966.

Looking Ahead

Australia’s approach to this copyright dispute may not have been unprecedented, but it is definitely distinct. Actively choosing to spend tax dollars on purchasing rights that could have been potentially acquired under the Constitution speaks not only to the sentiment of reconciliation but also honours the 50-year-long history that accompanies the Flag and everything it stands for.

Coming at the heels of Australia Day, about the possible dual intent behind this purchase. It will be interesting to see how the Flag is adopted by the government and if any steps are taken to ensure that the value of its sentiment does not diminish through non-Indigenous use.

[1] Ironside v Attorney General 1988 [RPC] 197

The post A Tale of Reconciliation: The Australian Way appeared first on IPOsgoode.

Summary of the SCC Decision

��On September 26, 2019, the SCC clarified that the Ontario government owned all land surveys produced by Ontario’s land surveyors. These surveys were filed in Teranet’s online land registry database because the Ontario government delegated this responsibility to Teranet. This assignment authorized Teranet to profit from the public’s viewing of the land surveys.

The Majority held that a work must either be prepared or published by the government for Crown Copyright to vest. Justice Abella narrowed the notoriously convoluted section 12 of the Copyright Act by determining that government publication alone is not enough to trigger Crown Copyright. The work published must also involve a sufficient degree of government direction or control over either the person publishing the work or the nature, form and content of the final version. The court determined government control by referring to the statute. Therefore, Crown Copyright vested because the Land Titles Act and Registry Act gave control to the Ontario government over land survey information.

Chief Justice Wagner reasoned that the degree of sufficient direction or control exercised by the Crown was irrelevant. Instead, a work must serve a public purpose by which vesting the copyright in the Crown would further that purpose.

The Keatley Decision Did Not Alleviate Legal Ambiguities�� ��

While the SCC narrowed the scope of section 12, the court did not clarify the provision’s compatibility with the purpose of Canadian copyright law. In Keatley, the SCC articulated that Crown Copyright was meant to protect works prepared or published by the government in order to guarantee the authenticity, accuracy and integrity of the works in the public’s best interest. The SCC was clear that this purpose must be balanced with creators’ rights to be free from de facto expropriation by any level of government. However, this justification does not take into account copyright law’s purpose or its parameters.

Firstly, Keatley may allow for Canadian governments to claim copyright protection in fact-based works. As , no interested party in Keatley should have copyright in the land surveys. For a work to be protected under the Act, into form using skill and judgment. This criteria was not addressed by the SCC because the disputing parties did not challenge the proprietary elements of the fact-based land surveys.

Secondly, the purpose of the Act is t. As the Copyright Act should not be used as a tool to further the Crown’s control over information that should be openly available for the public to access and copy. As section 12 currently stands, any member of the public may infringe copyright if they amend or disseminate a protected work without government permission. Yet Professor Vaver notes that nowhere in the SCC jurisprudence is copyright legitimized as a tool to stifle freedom of expression. Finally, awards the government, with the same, if not more, exclusive rights and privileges as any other creator, which is evident in the definition of copyright in section 3 of the Act. Crown Copyright not only from reproducing information that should be publicly available but also commodifies this information through a monopolization process. This approach may have been valid centuries ago but, when applied today, .

These contradictions may result in problematic scenarios in light of the COVID-19 crisis. For instance, some government publications may neither receive appropriate critique from non- contracted experts nor be disseminated through methods that would fall outside of the Act’s fair dealing provision, section 29.

Is the Time Ripe for Policymakers to Amend Section 12?

Crown Copyright reform may be the only topic within in which most experts agree. The of the Standing Committee on Industry, Science and Technology (INDU) recommends that the government’s copyright exercise over publications created in the public interest should be the exception rather than the rule. Recommendation 11 advocates for an open licensing scheme consistent with transparent government and data management to improve Crown Copyright management.

In Canada, many copyright stakeholders would prefer to simply abolish Crown Copyright and mandate the protection of confidential publications to other statutes, as demonstrated in INDU’s report. Consensus was even reached between the NDP and Conservatives, as . Abolishment could be a viable option because there are other solutions to authenticate government sources that do not require the Copyright Act. the government can more effectively authorize documents through official mechanisms, such as a seal, that would allow the public to modify or publish their own unofficial version of the work.

Canadians Must Remain Alert to Crown Copyright Laws to Avoid Infringement

Section 12 of the Act remains good law and Canadians must remain vigilant of any potential legal implications. Crown Copyright may apply if your work required government approval prior to development; received government funds; or was directed by statute. Professor Craig also advises to be aware that municipal, provincial, and federal governments have different licensing schemes. ��To be granted permission to adapt, reproduce, revise or translate Federal materials, you must contact at PCH.info-info.PCH@canada.ca. Heritage Canada specifies: “”. Until policy-makers direct Canadian Copyright law, Canadians must be alert to the risk of infringing Crown Copyright.

Written by Natalie Chodoriwsky. Natalie is going into her third year at Osgoode Hall Law School, and she is also an IP Innovation Clinic Fellow.

The post Revisiting Teranet v Keatley Surveying: An Analysis of Crown Copyright and its Implications for Canadians appeared first on IPOsgoode.

Today (March 29) the Supreme Court of Canada (“SCC”) will hear the intellectual property case of��Keatley Surveying Ltd v Teranet Inc,����[Keatley] about the issue of copyright in land surveys. Keatley Surveying Ltd (“Keatley”) brought a proposed class action on behalf of all land surveyors in Ontario against Teranet Inc (“Teranet”), a private company operating Ontario’s electronic land registry system (“ELRS”). Keatley claims that Teranet infringed surveyors’ copyright in drawings, maps, and charts (collectively “plans of survey”) by digitizing, storing, and copying them to be accessed by the public for a fee. The question is whether the surveyors’ copyright transfers to the Province of Ontario after the plans of survey have been deposited into the ELRS. If so, Teranet would not be liable for any copyright infringement because they operate pursuant to a license granted by the provincial government.

Perhaps this is not self-evidently legal blockbuster material. Still,����are watching this appeal closely. This is primarily so because the SCC will be asked to determine a question with potentially wide-reaching implications—the scope of Crown copyright under section 12 of the��,��RSC 1985, c C-42 [“CA”]. A��holding on this section could dictate whether or not governments and their service providers can assert that copyright has been transferred to them when—through statutory schemes—they digitize and copy private works and make them available to the public. For this reason,��Keatley��has attracted intervenors such as the Canadian Legal Information Institute (“CanLII”), the Canadian Association of Law Libraries, and the Centre for Intellectual Property Policy. These intervenors believe the case has broad implications for the freedom to access and use public documents in Canada, including public legal documents. I will discuss the background and judicial history of��Keatley��before analyzing some of the public policy considerations before the SCC.

Background

Land surveyors are a self-governing association of professionals in Ontario who create plans of survey. These plans provide property owners with an accurate determination of the dimensions of their property. As the Ontario Court of Appeal (“ONCA”) notes in��Keatley Surveying Ltd v Teranet Inc,��[Keatley��2017] a land registration system in which copies of plans of survey have been available on request for a fee has existed for some 200 years in Ontario (para 10). In 1991, Teranet and the Ontario government began the joint project of creating the ELRS. No portion of the fees that users are charged is paid to the surveyors (Keatley��2017, para 10).

Judicial History and s 12 of the��Copyright Act

Much of the early litigation in this copyright dispute revolved around the issues of certification of class proceedings and costs (see��Keatley Surveying Ltd v Teranet Inc,����[Keatley��2012] and��Keatley Surveing Ltd v Teranet Inc,2014 ONSC 3690). The case finally came before the court for a decision on the merits in 2016 with��Keatley Surveying Ltd v Teranet Inc,�� [Keatley��2016], presided over by motion judge Belobaba J.

Teranet’s Core Argument��

From the beginning, the parties agreed that plans of survey are copyrightable as “artistic works” (see��Keatley��2012, para 4). The contentious issue was who holds the copyright in these works. Keatley plead that surveyors hold the rights and that since s 3(1) of the��CA��gives copyright owners exclusive right to reproduce and publish a work, Teranet infringed these rights (Keatley��2012, para 178). Defences like fair dealing apply if Teranet does not own the copyright or is not properly licensed, but Teranet’s key argument is that copyright in the plans of survey is transferred to the Province of Ontario. Writing for the judicial panel at the ONCA, Doherty JA agreed with Belobaba J and Teranet that the Province of Ontario is the copyright holder due to the operation of s 12 of the��CA,��the “Crown copyright” provision.

Section 12 of the��Copyright Act��

Section 12 provides that copyright will be held by the Crown for 50 years if a work is “prepared or published by or under the direction or control” of the Crown. This section has two branches to it: 1) works that are��prepared��under the direction or control of the Crown and 2) works that are��published��under the direction or control of the Crown. While neither court held that the plans of survey were “prepared” by or under the Crown, they both found that the plans were “published” in this fashion. They had different reasons for arriving at the same conclusion.

Differing Approaches at the Motion and Appeal Level

Belobaba J’s approach relied more heavily on an analysis of provincial legislation such as the��,��RSO 1990, c R 20 and the, RSO 1990, c L 5 (Keatley��2016, paras 6-9). In the appeal Keatley issued a notice of constitutional question, contending that Belobaba J’s judgement generated a��vires��problem. Section 89 of the��CA��clearly provides that “[n]o person is entitled to copyright otherwise than under and in accordance with this Act or any other Act of Parliament.” Therefore, Keatley asked how the Province could decide when copyright subsists and when it may be taken away given its lack of constitutional authority over this federal area of law. Doherty JA for the ONCA wrote: “I would not describe the applicable provincial legislation as transferring ‘ownership’ of the copyright to the Province.” Rather, it is “s 12 of the��Copyright Act��that vests copyright in the Crown…” (ONCA, para 54). This more exclusive focus on s 12 appears to correct the��vires��problem. At the same time, there are some remaining public policy issues that Keatley and several intervenors are hoping the SCC will be alive to.

Will the Scope of Crown Copyright be Interpreted Differently by the SCC?

The ONCA determined that “any work” that is prepared or published by or under the direction and control of the Crown could be interpreted as one where copyright vests with the government (Keatley��2017, para 29). The ONCA’s interpretation of the word “published” is wide enough to raise some concerns. Due to the ambiguity within the text of s 12, the SCC arguably has some room to maneuver in choosing an interpretation that is faithful to Parliament’s intent and the purpose of the provision, that also has positive public policy consequences in the context of our ever-changing digital economy and society. An expansive interpretation could mean that the Crown can expropriate pre-existing copyright from authors of a work when this work is given to government authorities in abidance with regulatory requirements. Interpreting s 12 more narrowly could limit the scope of Crown copyright to works commissioned by the government and created by government employees and agents. This latter position would be in line with the argument that Crown copyright is needed to ensure the accuracy and integrity of government works. It would also reflect what the SCC has stated previously in��Théberge v Galerie d’Art du Petit Champlain inc,����(para 30), that copyright law should be applied to strike a balance between rewarding authors and disseminating creative works to the public.

Criticism of Crown Copyright

Crown copyright has been criticized by����it has the potential for “unfairness to certain authors.”�� Others have more bluntly called s 12 a “legislative monstrosity” for its ambiguity despite it being only 85 words long.[1]��Needless to say, comprehensive reform of s 12 would be the business of the legislature, not the SCC. However, the SCC has agreed to hear intervenors who will make a number of arguments about how interpreting s 12 too broadly may have negative reverberations, especially��in an era when we’re trying to have greater access to justice, which includes access to law and legal documents.

Possible Application of Section 12 to Public Legal Documents

Canadian courts have not yet commented on whether s 12 of the��CA��includes public legal documents.����that judges need to “provide better access to justice for Canadians” including “access to information.” An overly broad scope for Crown copyright seems at odds with current notions of Open Government and “with democracy more generally,” as Luanne Freund and Elissa How have written.[2]��It does so by placing restrictions on the reuse of “government” materials. Such a situation could enable the government to charge fees, institute overly restrictive terms of use, or otherwise limit access to public legal documents that could impede the public’s ability to review legal information, know their legal rights and responsibilities, advocate for themselves in court, and participate in legislative processes. There may be disproportionate effects on individuals and organizations that cannot afford to pay for access to primary legal materials, including academic researchers, innovative start-ups, and self-represented litigants. Intervenors in��Keatley��like CanLII no doubt want to set a precedent that could limit s 12 such that Crown copyright cannot be used as a device to withhold or limit the exchange of information. CanLII stands to benefit from a climate of more frictionless digital documentation, and arguably so does the public.

Concluding Thoughts

Were Wagner CJ and his fellow justices to agree that a wide scope for s 12 of the��CA��has negative public policy implications, they could turn to the SCC’s decision in��Marzetti v Marzetti,����for the proposition that public policy considerations are relevant when applying a purposive approach to statutory interpretation (paras 85-87). The original purposes of Crown copyright,��:

either no longer apply or, where they do continue, can be better served by other legal or technological means than asserting ownership over the materials and controlling the means of reproduction. Copyright, in short, is not the best way to achieve the public purposes for which the Crown copyright system was designed.

If the original purposes of s 12 are no longer as relevant today, there may be other ways for Parliament to achieve its objectives that are more in keeping with its current commitments to openness and access to justice. Before the internet, Crown copyright was a way to recoup costs in the copying, printing, publishing and shipping of documents. In a post-internet world where dissemination is largely electronic and inexpensive, the underlying rationale for Crown copyright is weakened. Returning to the instant case, I believe there are genuine questions about Teranet’s business model insofar as it denies the copyright claims of Ontario land surveyors. The SCC has an opportunity to overturn the ONCA and set a precedent that many would keenly welcome, including copyright reformers and open government advocates, not to mention the land surveyors of Ontario.

Written by Jesse Beatson.����Jesse Beatson is a third year J.D. student at Osgoode Hall Law School.��

[1]��Barry Torno, “Crown Copyright in Canada: A Legacy of Confusion” (Department of Consumer and Corporate Affairs Canada, 1981) 49.

[2]��Luanna Freund and Elissa How, “The Quagmire of Crown Copyright: Implications for Reuse of Government Information” (2015), 40��Can L Libr Rev��11.

The post Keatley Surveying Ltd v Teranet Inc: The SCC’s Crown Copyright Case appeared first on IPOsgoode.