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Tuesday May 21, 2019

Can Copyright Law Apply to Public Documents?

Authored by: Marc J. Belliveau Posted in: Intellectual Property

Two recent and interesting Canadian copyright infringement cases have bubbled up to the highest courts in the land and threaten to carve a new exception in the intellectual property behemoth that has become copyright law. The issue is whether certain works should not be copyrightable.

One case, Keatley v. Teranet, was recently argued before the Supreme Court of Canada (SCC) and deals with copyright in land surveys in Ontario. These land surveys are essential “artistic” cogs in the land title machinery established and maintained by all provincial governments because they form the basis of real estate transactions, in terms of proving land ownership and title registration. The lower courts ruled against Ontario land surveyors and in favour of Ontario’s outsourced land registry operator, based on Crown copyright.

The other case, P.S. Knight Co. Ltd. v. Canadian Standards Association, deals with privately authored electrical safety code which subsequently became incorporated by reference into a federal regulation over oil and gas operations. In a split decision, the Federal Court of Appeal held that copyright subsists in the safety code notwithstanding its elevated status as a public document. The case has been appealed, although the SCC has not yet granted leave.

Copyright Basics

As a starting point, copyright law gives an author (used generically for original literary, dramatic, musical and artistic works) a number of exclusive monopoly rights (such as making copies, publishing, performing, recording, licensing, communication to the public, etc.) for a set number of years during the author’s life and after the author’s death (often 50, 70 or 100 years).

When any such rights are infringed, the author (or owner) can sue to enforce them. However, once that very long term of exclusivity expires, the work enters what is called the “public domain” and anyone can use the work freely without fear of copyright infringement claims. That is the normal course of events from creation of an original work to the eventual entry into the public domain. For example, in Canada, works of authors who died in or before 1968 are in the public domain.

But what if a work, by its very nature, should never attract the usual type of copyright protection? Alternatively, what if a work is transformed from a private, enforceable one into a public one incapable of enforcement?

Public Domain

The SCC has described the public domain as works “which are not subject to individual ownership” and materials that “all are free to draw upon”. Like the traditional “commons”, there are no exclusive monopoly rights to be enforced in such an “ownership-free” domain.

In addition to works whose copyright protection has expired over time, the public domain includes facts, theorems, algorithms and ideas (only the expression of ideas is copyrightable), works “given” to the public by the owner, and documents deemed to be in the public interest. Such documents typically serve an important societal function in a free and democratic nation.

Many countries, including Canada, recognize that court decisions are not copyrightable. Similarly, statutes, regulations, orders-in-council, by-laws and similar government instruments are often deemed to be excluded from the scope of copyright laws because access to the law is a fundamental principle of modern citizenship in a constitutional democracy.

If one is always deemed to know the law (ignorance of the law is no defence), then the law itself should not be accessible only through a for-profit paywall or subscription payment. As a matter of public policy, a citizen should not fear liability for copyright infringement when quoting, copying or sharing public documents.

Land Surveys & Electrical Codes

One of Canada’s guiding principles in determining the scope of copyright law is that there should always be an appropriate balancing of interests between the exclusive economic rights granted to authors of works and the public rights of lawful users of the protected works.

The private parties involved in these land survey and electrical code cases are relying (among other arguments) on Crown copyright, effectively claiming that the Crown is entitled to expropriate the pre-existing rights of land surveyors and electrical code authors.

In other words, once your artistic work (namely, the land survey) or your literary work (namely, the electrical safety code) are mandated by government to become part of the legal regime, whether as part of a public land registry system or as a public electrical safety regulatory system, you lose your private rights as author.

Such an approach of determining private rights in a public policy context puts too much emphasis on anachronistic fictions of Crown copyright and not enough weight on the informational requirements for public participation in a modern society. The SCC will have to decide how best to balance those competing copyright interests very soon.

The Better Approach

Whether for maps, codes or other documents, copyright law should recognize that once a private work becomes, or is transformed into, a public document, it enters the public domain and can be copied, shared and distributed freely. The original authors would retain their copyright in their private works; however, the public document would be deemed a public domain work and be excluded from the broad scope of copyright law protections. Time will tell.

For more information about copyright law, please contact Marc Belliveau.

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