Contrarian’s submission to copycon

Contrarian’s submission to the National Consultation on Copyright focuses on an issue that has received little attention in the consultation, an area in which current Canadian law provides a striking lack of balance, an issue in which Canadian law is not decades but centuries out of date: the issue of Crown Copyright. To view the submission, please click the “read more” button.

Crown copyright: archaic, patronizing, and lacking balance

Hidden beneath the often fractious debate over the future of Canada’s copyright laws lies a shared consensus on one central point: Modern copyright legislation must strike an equitable balance between the interests of creators and the public. Industry Minister Tony Clement highlighted this point in Vancouver on the opening day of the national copyright consultation.

The key theme that we heard from all of the presenters was achieving the right balance in our copyright legislation — for authors and artists, for enablers of creativity, for consumers of course as well.

Minister Clement has also stressed a second, widely shared goal of the copyright review, the need to modernize Canada’s law in the face a revolutionary changes in reproduction and distribution technologies. As he told the Toronto Star recently,

The current copyright legislation took place in the world of vinyl records and cassette tapes, and nothing like a DVD player or iPods existed … so it is certainly far behind the times.

The notion of copyright as a balance between the public interest and the rights of creators was endorsed by no less an authority than the Supreme Court of Canada in its unanimous decision in CCH v. Law Society of Upper Canada.

The Copyright Act is usually presented as 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).

Of course, the national copyright consultation has elicited widespread disagreement about just where the appropriate balance lies, and whether digital technologies require more stringent controls or a paradigm shift in our thinking about the relationship between creation and consumption. The consultation has heard many articulate presentations and submissions on all sides of that issue.

This submission focuses on an issue that has received far less attention in the consultation, an area in which current Canadian law provides a striking lack of balance, an issue in which Canadian law is not decades but centuries out of date, the issue of Crown Copyright.

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Section 12 of the Copyright Act ( R.S., 1985, c. C-42 ) provides:

12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

These 85 words enforce federal restrictions on the publication of taxpayer-funded works in two ways: in the explicit rights they confer upon government, and in the opening clause, which offers an oblique reference to the historical concept of royal prerogative.

The ancient concept of royal prerogative bestows upon Her Majesty an exclusive perpetual right to publish certain documents. It is as vague as it is sweeping, in that no definitive list of the documents it covers exists, although in the United Kingdom, from which Canada derives the royal prerogative, the list certainly includes statutes, judicial decisions, the King James Version, and the laws of the Church of England.

Does one really need to argue that an effort to modernize Canada’s copyright legislation should begin by abandoning our reliance on this quaint, vague, open-ended, monarchic relic, and replacing it with specific and limited rules governing ownership rights to material created under the aegis of government?

Even if Canada abandoned any vestigial claim to royal prerogative, the question of what to do with the statutory notion of Crown Copyright remains. It is often noted that the United States takes a vastly more liberal approach toward placing works created at public expense in the public domain. In recent years, the United Kingdom and most other Commonwealth countries have liberalized their rues on Crown copyright. Only Canada, it seems, lags behind.

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A number of rationales have been advanced in support of retaining Crown copyright, or at least in support of delaying any liberalization of Section 12.

Rationale #1: Crown copyright is a less urgent issue that can be put off for later review.

A 2002 Industry Canada report, Supporting Culture and Innovation: Report on the Provisions and Operation of the Copy­right Act, concluded that reform of Crown Copyright was a less urgent issue that could be put off to the medium term, which was then defined as two to four years. Given that successive governments have been able to pass legislation dealing with copyright issues deemed to have top priority, the fate of second-tier priorities seems uncertain at best.

Crown copyright may be deemed less urgent in the sense that it does not have a large corporate lobby pressing for change, or an international treaty mandating change. Nevertheless, the provisions of Section 12 have been notorious for decades. As long ago as 1981, the Research and International Affairs Branch of Consumer and Corporate Affairs produced a report, now sadly out of print, called, Crown Copyright in Canada: a Legacy of Confusion. Author Barry Torno observed that Section 12 had its roots in the mid-17th Century. It would seem that, in matters of Crown copyright, a “lack of urgency” has been carried to an extreme.

More recently, in his 1996 paper, Copyright And The State In Canada And The United States, David Vaver wrote that Section 12, “sits there in its pristine glory and, in the waning years of Elizabeth II, decisions made by Charles II’s judges are still relied on by the governments of Canada and the provinces to support their claims of copyright. The smell of the crumbling pages of 17th century law reports hangs over the dancing pixels on the electronic highway.”

Vaver added:

[T]he Canadian Copyright act extends copyright to “citizens, residents and subjects”. This is the relationship section 12 reflects: that of CROWN and subject, of monarchical government, under which the crown through its delegates does what it thinks best for its people, and the people as the crown’s subjects accept this as the best because the crown can do no (or perhaps today, not much) wrong. Under this theory, a government that decides not to publish does so because it has decided the public interest favours secrecy.

If, as Minister Clement stated, the goal of the review is to modernize Canada’s copyright laws, surely the fusty assumptions underlying Crown copyright should move it to the head of the queue.

Rationale #2:  Crown Copyright was already dealt with under the Reproduction of Federal Law Order.

In 1966 1996, Cabinet passed an Order in Council that included, as an annex, the Reproduction of Federal Law Order. It read:

Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-consti­tuted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.

There is no question that this provision liberalized access to federal laws and judicial decisions in Canada. It played a key role in making available the on-line, electronic texts we all rely on today for easy access to legislative enactments and judicial reasoning.

However, as Elizabeth F. Judge points out in Crown Copyright and Copyright Reform in Canada, the order was not a panacea.

The Order fails to provide “unimpeded access” to law, a failure which is exacerbated as information and communication technologies improve over time. The Order does not cover all legal informa­tion. By category, it covers only the “federal law” of statutes, consolidations, and court and tribunal decisions; it does not license the public to reproduce any other kind of public legal information. Moreover, the Order covers only the Government of Canada, not the provinces or municipalities.

The Order also permits the public to (only) “reproduce” federal law. Whether the scope of the federal order includes all media and forms of reproduction, including Internet access, html, pdf, or scanned formats; whether it extends to give permission to the separate right under copy­right law to communicate to the public by telecommunication; and wheth­er the permission extends to Canadian law posted and accessed outside of Canada are not clear. These ambiguities potentially affect the willingness of private publishers to provide digitally enhanced versions of public le­gal information.

The residual and perpetual Crown prerogative to publish judicial decisions and legislative enactments likewise leave a persistent uncertainty as to users’ rights to access and reproduce the material in all media and formats. This contrasts with the updated language of the Unit­ed Kingdom which, with respect to legislation, expressly permits “by way of illustration” “reproducing and publishing the Material in any medium,” “reproducing the Material on free and subscription websites which are ac­cessible via the Internet,” “establishing hypertext links to the official leg­islation web sites,” “reproducing the Material on Intranet sites,” and many other uses such as inclusion in theses and student course packs.

An even greater limitation on the Reproduction of Federal Law Order is so obvious Judge fails to mention it: The order applies only to laws and federal court decisions, not to the myriad other works created by federal, provincial, and municipal governments in the course of their taxpayer-supported activities.

In short, while the order marked an important improvement, it falls far short of eliminating the archaic imbalances enshrined in Crown copyright.

Rationale #3:  Crown copyright is needed to insure the accuracy and integrity of government documents.

This argument illustrates Minister Clement’s observations about the need to modernize our thinking about copyright in light of technological changes, particularly digital technology. The notion that only the Queen’s Printer can be counted upon to faithfully reproduce the nation’s vital governing documents may have made sense in the early days of the printing press, but they hold no water in today’s world.

There are many examples of egregious errors in official government publications. Vaver [op. cit] cites a passage in the then-King’s Printer’s official report of the Supreme Court’s judgment in Massie & Renwick Ltd. v. Underwriters’ Survey Bureau Ltd. [1940] 1 D.L.R. 625, 630-1 (S.C.C.), a leading copyright case.

Because of a series of editing errors, the report makes the chief justice of Canada, Sir Lyman Duff, look as if he has plagiarized a former lord chancellor of England! Is it not piquant that a decision on copyright, over which the crown itself claims copyright ostensibly to ensure accuracy, is reported in a way that is not only misleading but also defamatory of the chief judicial officer of the land? It took the private publishers of the court’s decision, who transcribed it accurately, to resurrect the chief justice’s honour.

Second, modern transcription and digital reproduction technologies have greatly enhanced the ability of publishers to accurately transcribe and reproduce information.

Third, as many observers have pointed out, the marketplace will quickly punish any private purveyors of legal and legislative documents who do not adhere to the highest standards of accuracy. In light of modern reproductive technologies, a monopoly on publishing rights is a blunt instrument by which to ensure accuracy and integrity, especially given the growing emphasis on transparency and accountability in government.

Rationale #4:  Crown copyright is needed to ensure cost recovery in the production of government works.

There are certainly situations where a plausible case exists for user fees to recover the cost of producing, or reproducing, government works. There may be examples in which continued production of the information in question would only be possible with cost recovery from users. While the Government of Canada would presumably not want to recover from users or resellers the cost of reproducing advice for preventing the spread of the H1N1 virus, it might want to recapture all or some of the cost of assembling technical data of interest only to a small group of commercial concerns.

The question is one of onus. At present, the assumption is that all government works should be subject to blanket Crown copyright, and released only on individually issued, revocable licenses. The reverse onus means that civil servants, often already busy with other duties, must review the advisability of releasing government-produced material from copyright. It is not surprising that such reviews often provoke a sluggish and cautious response, in which government lawyers stress the importance of protecting government rights over policy considerations favoring openness and accountability.

In one recent Nova Scotia case, a retired professor from the University of King’s College Journalism School has undertaken a voluntary project to update the Wikipedia entries for major Nova Scotia historical figures. His work on the project is of such high quality as to have won recognition from the Wikipedia Foundation. When he sought permission to use government photographs of several recent premiers in their Wikipedia entries, his request met weeks of delay followed by rejection  [Bruce Wark, private communication].

A modern approach to Crown copyright would start with the assumption that all government works should bein the public domain unless a very good reason exists for restricting their use or charging for using them.

Rationale #5:  Crown copyright is needed to preserve necessary government secrets.

There are many instances, such as national security, law enforcement, pending negotiations, in which government must preserve secrets. There are also many legal tools, such as exemptions to Access to Information legislation and the Official Secrets Act, specifically geared to that purpose.

The use of Crown copyright to preserve secrets is a clear example of legislative over-reaching. It ensures that, for every secret preserved, many works that should not be secret will be suppressed. As Judge [op. cit.] points out:

[C]opyright is an awkward legal mechanism to protect such works for these purposes. For this subset of materials, other legal means, such as evidentiary privileges and the ex­isting exceptions in the access to information regimes, are more measured to meet those objectives, with detailed statutory and regulatory require­ments and at least some judicial oversight. Copyright, by contrast, risks being applied to too broad a category of works. The existing access to information regimes do not, however, provide timely access rights to gov­ernment works, do not include published or purchasable materials, and do not obviate the Crown copyright which subsists in those works.

Rationale #6:  Crown copyright is needed to ensure widespread dissemination of government documents.

A valid rationale for private copyright is that assuring compensation to a work’s creator is essential to encourage creation in the first place. It is a stretch, however. to extend this argument to government, which creates various works in the course of carrying out its duties. Instances in which assuring compensation was essential the creation or dissemination of a government would be rare indeed. On the contrary, it is far easier to conceive of cases in which Crown copyright was used to suppress publication of a government work. Vaver [op. cit.] cites one example, involving James Lorimer, a small Halifax book publisher, and a 1981 report on competition in the petroleum industry.

This seven-volume report was tabled in parliament and then published for $70. Many free copies were nonetheless distributed, including to public libraries.

Along came a small publisher called Lorimer who thought a one-volume condensed version of the report would sell well. But speed was essential lest his project turn into Canadian history. Lorimer spoke with department officials but was met with foot-dragging. So he decided to go ahead anyway. He spent two weeks cutting and pasting, and issued the condensed version at $14.95 two weeks later. Meanwhile Lorimer wrote to the minister of supply and services offering 8% royalty on retail sales of his book.

The ministry’s lawyer wrote back refusing permission and complaining that the use of the competition director’s name on the cover of Lorimer’s book suggested the director had also authored the abridgment. Lorimer corrected that by covering the director’s name with stickers carrying his publishing company’s name. This was still not good enough.

Instead of giving him a medal for making the report available cheaply to a wider audience cheaply, the government took Lorimer to court and got an injunction, damages at 8% on past sales, delivery up of all existing stocks, and the costs of the action. The government admitted it had not lost anything by Lorimer’s publication and that widest possible dissemination of the report was an important goal. But all this was set aside to establish the principle of full control over government publications.

Whether publications like Lorimer’s are any more possible today because of speedier clearance is uncertain. What is certain is that such versions would more likely occur if pre-clearance was unnecessary. The greater distribution of information that would result would surely “assist in the achievement of program objectives” more than any fallout from the occasional unworthy republication.

What this illustrates is the bureaucrat’s inclination to guard and preserve a legislative restriction, however overbroad, even when doing so conflicts with an underlying policy principle.

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Advocates of Crown Copyright reform often contrast Canada’s stringent application of Crown copyright to the copyright-free regime that applies in the United States, where works produced by federal employees in the course of their regular duties are presumed to be in the public domain.

In an era of digital reproduction, placing works in the public domain has proven an enormous catalyst to the creation added value. The visual presentation of data is an example of a field in which developments rapidly outpace our conception of what’s possible.

  • Stephen Taylor, a Conservative blogger who organized a series of rallies to protest last fall’s proposed coalition government, has used election data assembled by Elections Canada to create an extraordinary mashup of poll-by-poll results from the 2008 federal election and Google Earth.
  • Hans Rosling, a professor of international medicine at Sweden’s Karolinska Institutet (the organization that hands out the Nobel Prize for Medicine) and co-founded the Gapminder Foundation, developed software that turns international health statistics into moving, interactive, and revelation-generating graphics for public use. Here is an example.

Both these illustrations would have been inconceivable to all but the most arcane researchers a decade ago. Today, they are an area of widespread creative ferment among citizen-developers. The United States has recognized this trend with its creation of Data.gov, a website dedicated to facilitating public access to government data.

The purpose of Data.gov is to increase public access to high value, machine-readable datasets generated by the Executive Branch of the Federal Government. Although the initial launch of Data.gov provides a limited portion of the rich variety of Federal datasets presently available, we invite you to actively participate in shaping the future of Data.gov by suggesting additional datasets and site enhancements to provide seamless access and use of your Federal data. Visit today with us, but come back often. With your help, Data.gov will continue to grow and change in the weeks, months, and years ahead.

Only time will tell what sort of creative ferment, democratic advances, and economic benefits the United States will yield from Data.gov. What’s certain is that as long as Canada continues to husband government-created work behind an all-encompassing Crown copyright shield, benefits of this kind will be few in Canada.

Thirteen years ago, Vaver [op. cit] offered a series of steps Canada could take to lift the democratic deficit caused by our antiquated, over-broad Crown copyright. The list is depressingly apt today:

Canada’s law should be clarified to reflect the imperatives of a modern democracy, not the ancient hierarchy of Crown and subject. In particular:

  • The federal government should consider freeing some, if not all, classes of work from copyright. Federal, provincial and municipal laws, the proceedings of legislative bodies, and decisions of judges and administrative tribunals are obvious candidates. In the US this legal material, because it is in the public domain, has been made more accessible at cheaper cost than would otherwise have been the case.
  • If copyright must be retained for some material for specifiable strategic reasons, those works should be identified and a clear rationale for protection given. One should start from the presumption that government works should be in the public domain, unless there is very good reason to the contrary.
  • Copyright law should not be used to prevent disclosure of unpublished material.
  • The long duration of protection for private sector works need not apply to government works.
  • The pre-clearance procedure for government employee works in section 5.1 of the treasury board manual needs rethinking. The procedure is overbroad and confiscatory, and its reliance on section 12 of the Copyright act is wrong in law. Government employees who are able and willing to share their expertise should not be treated as objects to be stifled, but rather as national resources.
  • The government should no longer assert, through the royal prerogative, perpetual copyright over an unascertained, not easily ascertainable, and unclosed category of works. This uncertainty is in nobody’s interest. The federal and provincial prerogative power in respect of copyright should be repealed.

A government that prizes transparency, accountability, adaptation to modern technology, and the free marketplace should not perpetuate the patronizing assumptions underlying Crown copyright. In the few, limited instances where there is a need to preserve absolute control over government’s intellectual property, or to recover the cost of its production, targeted mechanisms should be developed for doing so. The blanket application of worst-case protection to all government is an anachronism we can ill-afford.


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