After discovering an interest in copyright law during my 2L year, I was fortunate enough to experience how policy makers practically apply the case law to everyday situations that impact stakeholder’s livelihoods and the broader Canadian cultural sector. I learned that, while Copyright policy makers have a difficult job balancing the interest of stakeholders,Ěý stakeholder interests often overlap despite the breadth and specificity of the Copyright Act.

Canadian Copyright Law and Policy has a Robust Scope

While we may think of copyright in its most basic terms textbooks to songs on the radio, it is important to remember that the Copyright Act also presents a legislative framework for a complex management system. As our society becomes more dependent on technology and the global marketplace is more focused on Artificial Intelligence (AI), gaps in the Act become more apparent. All parties agree that Canada requires technologically neutral legislation to proactively address these challenges. Our industries, from scientific research institutions, to tech-start-ups to creative artists, must have access to and understand an Act that is not only compliant with our international trading obligations, but also competitive on an international scale.

Re- Thinking Copyright Stakeholders in 2020

In law school, some classes encourage students to think of copyright using the balance: a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. Or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated (at para 30). Justice Binnie held that the proper balance amongst these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In other words, it would be insufficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them (at para 21). Using this balance as a justification, different lobbying interests have emerged. A dichotomy of users versus authors has emerged.

Canadian Heritage allowed me to explore new perspectives. I gained an appreciation for the work of Canadian authors and content creators and how some artists have experienced a decline in the digital era. These case studies emphasized why this dichotomy is false because creators or authors are users. For example, Content generators develop original works using inspiration from previously published works. Independent journalists may be dependent on networks such as Facebook to research their pieces, and then subsequently publish and share their finished articles on the platform to secure future works. However, these dissemination practices may offend their publishers' (or owner’s) copyrights in the work, further diminishing their incomes in this digital age. Copyright policy, therefore, must re-balance between the tech giants, the “Super users” who have a monopoly on their platform users’ data and the corporate copyright owners, and the researcher, AI developer or Canadian public who require reliable news and a civil space to discuss ideas. These groups are particularly critical during the age of a pandemic. These users, in turn, become authors and creators who create dynamic content and innovation as a part of a globalized marketplace.

Written by Natalie Chodoriwsky, JD Candidate 2021, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a reflective blog on their internship experience.

The post A Pragmatic Approach to Copyright Policy: My 3L Year with Canadian Heritage (IP Intensive Reflection) appeared first on IPOsgoode.

Summary of the SCC Decision

ĚýOn 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 AmbiguitiesĚý Ěý

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. ĚýTo 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.