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 ���𲹳ٱ������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,�������𲹳ٱ������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 (���𲹳ٱ������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 (���𲹳ٱ������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 ���𲹳ٱ������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.

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Artificial intelligence (AI), although lacking a universal definition, can be understood as a set of related technologies running on algorithms that replace or augment human cognition. With the growing capacity of AI, we find ourselves in Klaus Schwab’s “” where human brains remain important but are not the only source of intelligence. My article examines the risks and benefits of giving AI programs a role within rights-determining administrative bodies (i.e. tribunals, also called commissions or boards). Specifically, I propose statutory authorization for what I am calling “AI-Supported Adjudication” (ASA), an example of the “” (where the aptitudes of AI and humans are combined). My basic contention is that while neither humans nor AIs are perfect, pairing them is the most desirable future model for tribunal adjudication. The two other options are (1) maintaining the status quo, and (2) full AI automation. With new technologies come novel risks, but also new affordances. The growing capabilities of AI should inspire us to think beyond the status quo and consider alternative models of adjudication and decision-making. At the same time, the importance of uniquely human qualities and the hazards of unsupervised AI leads me to reject the radical notion of full-fledged “”.

AI tools could help ensure individual adjudicators consider all relevant materials. They would aid with research, for example flagging pertinent sources, highlighting specific excerpts, and assigning relevance ratings. On an institutional level, they could track and evaluate decision-making patterns across a tribunal. Tribunal AI is hypothetical, but a realistic prospect given that AI has been deployed in similar contexts like and by government agencies of .  These experiments in AI-assisted justice and governance have drawn controversy (see the Harvard Law Review’s piece on and The Guardian’s coverage of ). Is it possible to leverage AI’s benefits while avoiding the missteps made elsewhere? The Canadian government thinks so, as evidenced by the Treasury Board’s recent “” from May 2018. This Treasury Board document solicits private sector proposals for AI solutions to be deployed across several government entities, including the Immigration Ministry and the Department of Justice (for a human rights report on using AI in Canadian immigration see “”).

While in theory ASA will be greater than the sum of its parts, there are challenges to address. There are issues of judicial review and lawful delegation that I explore in my article.

Also, when humans make decisions with AI tools there is a risk of overreliance. Even if the human is “in charge” there are psychological tendencies that might reverse this relationship in practice. “” and “” are two examples. In a tribunal context, this could lead to “adjudication by algorithm”, illegal fettering of the adjudicator’s discretion, and de-skilling of adjudicators. Procedural fairness is another issue (what Americans call “due process”). Decisions of a tribunal must be reasonably transparent and unbiased. Some say AI is not sufficiently transparent, as we cannot know how it reaches its conclusions (the so-called “” problem). Others believe that through technical solutions (i.e. “”) we will eventually “open up the hood” of AI to see the basis of its decisions. It is worth noting the problem of opacity also exists with human thinking. It is cautioned in administrative law, for example, that a requirement to provide written “reasons” does not mean those reasons will be the true antecedents of the judgment. A second aspect of procedural fairness, an unbiased hearing, may pose greater difficulties. There are many ways bias can become encoded in algorithms, and once there, it may be difficult to detect or trace its source. However, again we must evaluate the human comparator. Human thinking is subject to numerous biases and shortcomings. In the context of adjudication, it was said that ‘‘Every judge...unavoidably has many idiosyncratic learnings of the mind...which may interfere with his .” Contemporary research shows how [2] like whether an adjudicator has eaten lunch can influence the harshness or leniency of a decision.

AI is not perfect, but neither (if we’re being honest) are human adjudicators. As poetically notes, we are all “in our own natures frail, and capable of our flesh; few are angels.” I suspect one of the greatest challenges of our era will be wading through the #legaltech hype and the doomsday prophesizing, and rationally taking honest stock of AIs strengths and weaknesses, as well as our own. As noted by of U of T Law, advances in computational power and sophistication mean that ‘‘the set of tasks and activities in which humans are strictly superior to computers is becoming vanishingly small”. This does not mean that computers or AI are superior, only that a humanity would be remiss not to utilize the power it has in these tools. The search for the ideal adjudicator, spurred on by AI’s advances, will likely settle on an approach that engages with humanness, in all our virtues and shortcomings. To err is human, so why not augment with AI?

Jesse Beatson is a JD Candidate at Osgoode Hall Law School. 

[1] Jesse Beatson, “AI-Supported Adjudicators: Should Artificial Intelligence Have a Role in Tribunal Adjudication?” (2018) 31:3 Cdn. Journal of Admin. Law & Practice 307.

[2] Craig E. Jones, “The Troubling New Science of Legal Persuasion: Heuristics and Biases in Judicial Decision-Making” (2013) 41  Advocates' Quarterly 49.

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