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Tuesday October 8, 2019

Supreme Court finds Crown owns Copyright in Land Surveys

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

It is not often that our Supreme Court of Canada (“SCC”) decides a copyright case. So, it’s always exciting to read their latest thoughts on the interpretation of the Copyright Act (“Act”).

On September 26, 2019, the SCC published its unanimous decision in a case involving land surveyors in Ontario suing their provincial government for illegally reproducing their “artistic works” in an online database (see Keatley Surveying v. Teranet).

All seven justices ruled in favour of the province and dismissed the land surveyors’ claims.

Crown Control

Four of the justices were satisfied that the Crown became the copyright owner in the land surveys merely by publishing them online if the Crown directs or controls the entire publication process, whereas the other three justices, in a more narrow interpretation, found for the Crown as owner because the surveys were “government works” which serve a public purpose once published.

The decision clearly turns on the interpretation of Section 12 of the Act. It essentially provides that if the Crown (i.e. the Canadian federal and provincial governments) publishes someone else’s original work, the ownership in that work then automatically vests in the Crown in perpetuity and the previous copyright owner cannot sue for infringement of its copyright.

Without digressing into the anachronism that is modern day monarchy in Canada, it does seem odd and unfair on its face that privately created works can be effectively expropriated in this manner. Think of prospectuses, factums and other similar private works published by the Crown.

Reform Badly Needed

The SCC made clear that the century old provision is in desperate need of reform. It was first enacted in 1921 (based on the British copyright statute of 1911) and had never been judicially interpreted until now. It was indirectly described by the SCC as a “legislative monstrosity” with “atrocious drafting”. More importantly, it was also criticized as a “derogation” from the rule that copyright law is wholly a creature of statute. Hopefully the Federal government will heed the SCC’s blunt call for legislative reform soon.

Users’ Rights

Aside from the negative outcome for the land surveyors in Ontario (and in the rest of Canada), the biggest takeaway from the decision is the big boost which the SCC has given to users’ rights in general under the Act. The Keatley decision will stand for the proposition that all user-related provisions in the Act must be given a “large and liberal interpretation”, not merely the specific user provisions deeming fair dealing to be non-infringing activities. That is very significant.

Since 2002, the SCC has been developing much needed copyright jurisprudence about the balance to be achieved between creators of works and users of works. A user’s ability to access, use and copy works owned by others is deemed by the SCC to be vital and “central to developing a robustly cultured and intellectual public domain”. As such, “all provisions of the Copyright Act, including Section 12, must be interpreted with this balance in mind so the Copyright Act continues to further the public interest” said the majority opinion in Keatley.

Thus, even though the Crown copyright provision is very broad in its potential application, the SCC made sure to interpret it as narrowly as possible for the benefit of Canadian society, in the context of finding that appropriate balance between copyright owners and copyright users.

If you would like more information about copyright law, please contact our Trademark Agent Marc Belliveau.

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