Episode 30: “It’s Only Going to Get More Important” – Amanda Wakaruk and Jeremy deBeer on Crown Copyright in Canada

M

Michael Geist

Guest
The Canadian copyright review conducted earlier this year heard evidence on a remarkably broad range of issues. One issue that seemed to take committee members by surprise was crown copyright, which captured considerable attention and became the subject of two supplemental opinions from the Conservative and NDP members as well as the basis for a private members bill from NDP MP Brian Masse. Why all the interest in crown copyright?

This week’s Lawbytes podcast digs into crown copyright with two guests. First, Amanda Wakaruk, a copyright librarian at the University of Alberta and one of the country’s leading advocates on the issue joins me to explain the concept of crown copyright and why she thinks it needs to be abolished. I’m then joined by my colleague Professor Jeremy DeBeer to discuss the recent Supreme Court of Canada decision on Keatley Surveying v. Teranet, which was on the first opportunities for Canada’s highest court to grapple with the scope and implications of crown copyright.

The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.


Show Notes:

Copyright Act
Standing Committee on Industry, Science and Technology Copyright Review
Library and Archival Community Letter on Crown Copyright
Keatley Surveying v. Teranet

Credits:https://www.youtube.com/watch?v=tLKpJYstsBk

Standing Committee on Industry, Science and Technology, May 30, 2019
House of Commons, June 3, 2019

Transcript:


LawBytes Podcast – Episode 30 transcript powered by Sonix—the best audio to text transcription service


LawBytes Podcast – Episode 30 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

Michael Geist:
This is Law Bytes, a podcast with Michael Geist.

Brian Masse:
I’m asking you about a specific crown copyright, and that is the protection and prohibited use of government documents, research materials. And I’m asking for your position on that. I don’t need the deputy minister’s position on that. It’s something we’ve studied extensively in this house here. It’s a well-known fact that Canada has a unique system of protection. And I’m I don’t want to know, you know, whether or not you support the status quo of Crown copyright. I think it’s a fair question.

Kirsty Duncan:
Thank you, Brian. Good luck. It’s an issue that’s raised with us all the time. We’re aware of the issue and we’re revealing it.

Dan Albas:
We believe the Crown copyright should be completely abolished. That view is shared by many witnesses and unfortunately recommendations in this report don’t go far enough. Content created by taxpayer money should belong to all Canadians, and governments should not be able to enforce copyright on those works.

Michael Geist:
The Canadian copyright review conducted earlier this year heard evidence on a remarkably broad range of issues. Probably the most comprehensive review of Canadian copyright law in decades. One issue that seemed to take committee members by surprise was Crown Copyright, which captured considerable attention and became the subject of two supplemental opinions from the Conservative and NDP members, as well as the basis for a private member’s bill from NDP MP Brian Masse. Why all the interest in Crown copyright? This week’s Law Bytes podcast digs into Crown Copyright with two guests. First, Amanda Wakaruk, a copyright librarian at the University of Alberta and one of the country’s leading advocates on the issue joins me to explain the concept and why she thinks it needs to be abolished. I’m then joined by my colleague, Professor Jeremy de Beer, to discuss the recent Supreme Court of Canada decision of Keatley Surveying vs. Teranet, which was one of the first opportunities for Canada’s highest court to grapple with the scope and implications of Crown copyright.

Michael Geist:
Amanda, welcome to the podcast.

Amanda Wakaruk:
Thank you. Thanks for having me.

Michael Geist:
So we’re going to talk about Crown copyright and I guess the starting point for people that don’t think a lot about these issues is what is Crown copyright.

Amanda Wakaruk:
Yeah. Thanks for making space for this topic. Section 12 of the Copyright Act provides the government with copyright control over any work that is prepared or published under the direction or control of Her Majesty. So that provision basically gives the government the exclusive legal right to reproduce, publish or sell a work that was created to support in some way the governance of our country.

Michael Geist:
So it’s giving the government control over the works that it creates. How long does this crown copyright last? So how long does the government get rights in its own works?

Amanda Wakaruk:
Yeah, if the work is published and I’m assuming the definition is the one used in the Copyright Act which is made available to the public if the work is published. The term extends for 50 years past the year of publication. However, interestingly, if the work is unpublished or put another way not originally intended for distribution to the public, the term is perpetual and and talk to any archivist and they will tell you that there are millions of unpublished government works sitting in archives across this country that are not being digitized because of fear of infringement.

Michael Geist:
That’s interesting. So the government that the term effectively unlimited if it if it’s not published, having a real impact almost immediately on archival access to some of those materials. I know this is a somewhat controversial issue. We’ve got a case for the Supreme Court of Canada that looks at it. But just how broad are we talking about in terms of government works for coverage of these in terms of its coverage?

Amanda Wakaruk:
Well, there’s one of the things that came out during the Copyright Act review and the witness testimony and submissions was that there doesn’t seem to be a strong understanding or agreement about about that scope. There are some claims that it may or may not protect primary law, although we have a reproduction of federal law order. So perhaps it does. I’m not an expert on those points of law, but I can tell you that it certainly covers anything disseminated by the executive branch and the legislative branch materials. So we’re talking about House of Commons reports. We’re talking about the debates of parliament. We’re talking about reports. We’re talking about royal commission transcripts. The things that we need to have access to do have a functioning democracy.

Michael Geist:
Sure. You’ve mentioned several federal institutions. Does this cover provincial governments as well?

Amanda Wakaruk:
They’re the copyright law. And Canada’s, as you know and I’m sure many of your listeners know, is under federal jurisdiction. But the enforcement of Crown copyright can be done at either the federal or the provincial level. So the provinces also have the exclusive right to reproduce, produce or sell works published or prepared at that level.

Michael Geist:
Ok, so we’re talking about a really broad range, not just at the federal level, but at the provincial level as well. So how does the Canadian approach compare with other countries?

Amanda Wakaruk:
You know, there isn’t a really good comparative study that we have access to that that tells us this in any definitive way, just from, you know, the little bit of research I’ve done on this topic. I think are our biggest trading partner. The U.S. is is the one to compare to really. They saw fit to remove any copyright protection for federal works away back in 1895. So from my perspective, we’re about a hundred and twenty years behind the U.S. on this particular issue. And as you well know and have talked about on the podcast, Canada is lining up some of our Copyright Act provisions and other areas with the U.S. policy. So we’re way out of step with our major trading partner there.

Michael Geist:
Are there open licensing alternatives to government works that that seek to ensure that there’s some amount of access?

Amanda Wakaruk:
I think I need to talk instead about the more than 40 years of requests to change the system. You know, it doesn’t take much work to stumble across things like a 1981 report titled Crown Copyright in Canada, drafted in 1981, as I said, by a government employee. We have a House of Commons committee subcommittee reports from the mid-eighties and white papers asking for the abolition of Crown Copyright, the abolishment of Crown copyright it. It goes on and on. And you know, in 2013, that Crown Copyright Licensing Unit was actually closed. That was a very useful unit. It gave us as librarians and as citizens and a place where we could ask for permission to use these works. But that was closed in 2013 and confusion sort of ramped up. About the same time the government did bring in an open government license. But by 2016, I want to say December 2016, only 53 publications had actually been assigned an open government license. The focus was really on data. Today, I think we’re closer to eight hundred, but that’s eight hundred publications that have been assigned an actual open government license, which is not without its own flaws. Separately, and I think the government was well intentioned here that they tried to bring in terms of use that would hopefully make it clear that people could re-use content and that was supposed to be adopted across all government websites that at least for the departments that fell under the Treasury board policy package. But but it wasn’t consistent. It’s not consistent to this day. It excludes commercial uses. And as you’ve already pointed out, our commercial publishers are a very important partner in the reproduction and dissemination of government information, but the terms of use on government websites excludes them.

Amanda Wakaruk:
And actually, if I can really go off off on a tangent here, there is a very recent and very important government report. The murdered and missing indigenous women and girls report that was recently distributed on the open web, which is fantastic. But if you look at it from a copyright perspective, there’s no information about re-use at all on that document. And it I was told someone reached out to me and told me that there was a publisher who’d actually approached the government to ask about copyright and the ability to publish and sell copies of the work because the demand for the print was so great. And those talks broke down. Now, I don’t have the details of that, but if if those works were in the public domain by default, as they are in the US, this wouldn’t be an issue. So, I mean, there are ways that the government has as shown intention to open things up. But unfortunately, the application of those policies, the implementation of those policies hasn’t resulted in real change on the ground from my perspective.

Michael Geist:
Why don’t we talk a bit about that? I mean, this is certainly the that that the decades of reports and concerns around these issues I think is striking as a set against the relative lack of action other than some of these open licenses that, as you say, have had relatively modest take up to date and has some impact. Can you tell me a bit more about why this is a problem? You know, in a sense, why should should people care. Do these open licenses or the existence of Crown copyright create significant restrictions to use, re-use either for the public, for archivists or for others?

Amanda Wakaruk:
Yeah, that’s that’s there are so many examples that came forth during the Copyright Act review. So I would encourage people to dig into that. I’ve also provided a list of the people who spoke to who gave examples on my Web site. Just, you know, there’s a redirect, fixed crowd copyright dot-ca. But to answer your question directly, there have been so many times where just as an academic librarian, I’ve had professors, students ask, you know, what happened to this link? Why is it dead? Things disappeared from the government Web site all the time and that content is not necessarily captured or reproduced. Did you give you a very recent and very important example? In 2012, the government saw fit to implement a web renewal initiative that was aimed at cleaning up the government Web sites. So I think the the the press release said, you know, consolidate the government websites from 15 hundred down to six. So that in itself doesn’t sound like a bad thing, except the work had already started. And librarians scrambling to try and capture this content were often hitting robot files, robotics dot-txt files with their web crawlers. And, you know, as as good responsible employees of universities, they would ask permission from the rights holder to make copies of that web content before it disappeared. And we’re sometimes told, yeah, you can make those copies. Actually, the common response was not a response at all. Nothing. You didn’t hear anything. And so that stops the work. But sometimes they were told no. And you cannot reproduce and make those works available. And that that’s a problem that resulted in pretty massive losses of government works. And I know many people will say, well, what about the Internet Archive? What about Library and Archives Canada and Library? Archives Canada at this point in time was itself going through massive reductions. I don’t know how many people realize that the head of the Library Archives Canada is a political appointment and they of course are sensitive to the political direction the government in power or the party in power is taking. So LAC was not in a position to jump in and help, but in that way at that time. And the Internet Archive Web crawling activities are incredibly important. And I still point, you know, journalists, students to those resources, but they’re also superficial. The kind of web crawling that librarians were trying to do is much deeper. We have access to quality assurance procedures that the Internet Archives Archive at a fee based service provides so we can make sure that those pdfs have are four pages down or actually getting picked up and preserved. So there was a lot of cultural loss, a lot of losses of materials, you know, everything from ministerial speeches, which is some of the more shocking losses to educational materials. I had not to point fingers to directly I love Parks Canada. And they had these wonderful educational supplemental guides for students to learn about their national parks and those disappeared and were not picked up by LAC or the Internet Archive. I’m still fielding calls from people who are asking for Revenue Canada documents.

Michael Geist:
The standing committee on Industry, Science and Technology, which conducted the copyright review, spent a fair amount of time both looking at it, and it’s certainly got addressed both by the report as well as by some of the opposition parties. So what did they find and what did they recommend when it came to the issue?

Amanda Wakaruk:
You know, I spent a considerable amount of time watching testimony that was made available through PARL View and reading submissions with an eye to monitor the Crown copyright scenario, and it was really heartening to see so many people spend so many time, so much time and effort talking about it and to see our m.p.’s from all parties and on to stress that: m.p.’s from all parties asked questions about Crown copyright and appeared engaged and interested and increasingly knowledgeable about the issue that was incredibly heartening. So when I read pages 43 to 46 of the report, which I’ve got here in front of me. I it it started out good. I mean the headings Crown Copyright and they rightly state that no witnesses supported its content continuation at least in current form. And I’m quoting here, “a rare point of consensus”. So there’s recognition here that the witnesses were pretty much on the same page in terms of asking for changes to the current crown copyright regimes. But then when you get into the section headed committee observations and recommendations, there is this to my eye anyway, a real disconnect between what the M.P.s asked and heard and and what’s on the page, because it dives right into the Keatley Surveying case. And it and I’m quoting here, the Keatley Surveying case reveals that Crown Copyright serves two distinct functions. Well, I didn’t know the case was finished, first of all, and I can only assume they’re speaking to what they heard through the intervenors statements, which seems odd to me, but I’m not a lawyer. So that’s odd right away. And I did go back and look, and I didn’t really see any witnesses refer to Keatley except Mr. de Beer and perhaps one other person in passing. So it was very odd that this is where the focus is. But they go on to say that because of that case, they now understand, I guess, that the first function of Crown copyright is to assert ownership over works. The second function allows Canadian governments to disseminate works they do not own. OK, a. If you jump down to the recommendations, the legislative amendment that’s proposed seems to be giving the government more power, not less. And quoting here that the government of Canada introduced Copyright Act to provide that no Canadian government or person authorized by Canadian government infringe copyright when committing an act and it goes on. So my read of that is that they’re giving themselves the you know, they’re indemnified themselves from being sued for using other people’s work, which has nothing to do with Crown Copyright. Why is it in this section of the report?

Michael Geist:
Now, I have to say this. This you mentioned some access to information requests earlier on. And this I think in some ways highlights the commonality between control of government and through information through crown copyright and then control of it through various other means of disclosure, such as through access to information. And I think what we often see is that when parties are in opposition, as we see even in the in this report, they’re all for greater openness and disclosure. Once they form the government, suddenly they kind of back away from that. And I submit that’s that’s how I read this recommendation. I read this recommendation say we’d like to see something take place. And so we’d like to move towards a more open license kind of approach. And that’s certainly part of what they try to adopt. But that was seen as a bit of a compromise position between what I take it are internal concerns about a more open approach or complete abolition. And on the one hand, and what they actually heard from witnesses, which was by and large a call for abolition, which I think speaks to ultimately one of the real challenges that we face with this issue. Because now I think as with access to information, we often get opposition parties calling for greater openness and transparency, greater use by the public. But once these parties come into government, suddenly they identify reservations or concerns. I don’t know how much of that is being driven by bureaucrats, how much of that is being driven by political considerations. But regardless, this is proven to be a more intractable issue than we might have otherwise expected.

Amanda Wakaruk:
Yeah, so. So where do we go from here? I mean, the other part of the recommendation that I did not read out is about managing Crown copyright. And and just to give people context, it says that the government of Canada improved Crown copyright management policies and practices, which sounds great by adopting open licenses in line with the open government and data governance agenda. And it goes on to qualify that by saying that things that are published in the public interest and for the purpose of public use, education, research or information, which are qualifications that that, you know, we never heard from any of the witnesses. And I guess, you know, it hasn’t come up yet on the podcast here. But the Access to Information Act includes pretty broad statements about things that are excluded from ATI and things that are accepted from that process. So the government has a lot of controls already through the Access to Information Act. And I think the control that the public deserves to use, the material that is created in the public interest also needs to be in legislation. And they’ve stayed away from that. They aren’t recommending legislative changes. My read of that first part of the recommendation on on the existing system, which no one said is working,.

Michael Geist:
Following up on that, the the Canadian library and archival community has written a response. I think they generally like much of what the committee had to say, but they quite clearly were disappointed. As as we’ve been talking about with the Crown copyright recommendations, what did they have to say in their letter to the government?

Amanda Wakaruk:
Yeah, the I want to first note that that this this letter is available on the Canadian Association of Research Libraries website, and it’s actually been signed by nine different associations, library and archive associations in Canada. And that I do I can’t remember ever seeing a statement come out with that many voices. I mean, this is representing a wide swath of of your cultural memory stewards Canadians. So they they did ask for the government to continue to study this. So further study on this topic. I would have liked to have seen further independent study, but further study by the government is what’s been asked for. And they want the government to address six points. I’m not going to list them. They’re quite verbose. But in general, they want an environmental scan conducted and that should include documenting what’s happening here in Canada at both the federal and provincial level. That should include documenting and considering what’s been happening around the world. And. And boy, do we need a comprehensive study of comparative systems so that those are the main asks and they make it clear that they want that process to include stakeholders for all the stakeholders, all the relevant stakeholders. And my read of that is that that would include government employees. I have heard from so many government employees over the year that say their work is hampered by Crown copyright and are frustrated because they’re trying to do good work and share that work and they’re bumping up against this. The process would include all stakeholders, and at the end of the day, what they what this letter is really asking for is legislative amendments, legislative amendments that will transform an outdated provision.

Michael Geist:
Amanda, thanks so much for joining me on the podcast.

Amanda Wakaruk:
It’s my pleasure.

Michael Geist:
So I spoke earlier in the podcast with Amanda Wakaruk, who explained what Crown copyright is and why she’s been very active advocating for reforms. But the open question when I spoke to her was the Keatley case. We had an outstanding case before the Supreme Court focusing on Crown copyright. That decision now been rendered. And I’m glad you’re joining me on the podcast to talk a bit about that case and what it means for copyright and in particular, Crown copyright. Why don’t we start there? Can you provide a bit of a background on the case itself?

Jeremy de Beer:
Well, sure. First, I’ll give you the takeaway. It puts the ball squarely in parliament’s court to act on Crown copyright and update what the Supreme Court highlighted was a century old provision and both the majority and minority opinions focused on the the need to reconsider this issue in the broader context. So what was the case about? Well, as you know, as your listeners will know, Keatley Surveying is a class action brought by surveyors against a partner of the government of Ontario called Teranet. Teranet is a company that digitized and provides access to digital copies of plans of survey plans, of surveyor, essentially maps that mark the boundaries of people’s property rights in the province of Ontario. So Teranet digitized these surveys and provided access to the public. The surveyors weren’t getting paid when Teranet sells access to these these surveys. And so they brought an action for copyright infringement. Teranet’s first defence or one of their key defences was that the surveyors don’t actually own their copyrights. The Ontario government does by virtue of this provision in the Copyright Act, crown copyright.

Michael Geist:
Ok, so we’ve got these land surveyors who make who file these land surveys with the government, the provincial government and Ontario proceeds to make them available to this company Teranet and they digitize them. I assume Teranet then goes ahead and makes that available on a subscription type service or electronically they’re profiting from it. The government presumably is making some money out of this by way of the licensing fees that I assume they get of the license they have with Teranet surveyors turn around and say where do the only ones, not anything, anything out of this? They launch a class action lawsuit. OK. So Teranet argues that they’re entitled to make these copies and make this available because of Crown copyright.

Jeremy de Beer:
Yeah. Teranet believes or submits to the court. Teranet argues that it’s allowed to provide these surveys to the public because the government of Ontario licenses it to do so. And the government of Ontario by virtue of Crown copyright, is the copyright owner. So that raises the issue for the Supreme Court. What exactly is the scope of Crown copyright? The controversy centered around the ability of the government to acquire somebody else’s copyright merely by making available the work on its own Web site or on digital platforms run by its partners. In this case, Teranet. So nobody doubted that when the government creates its own works, official government works that are prepared by the government employees or departments, that those will be subject to Crown copyright. Whether that should be the case or not is a different issue we can come to later. But the question was what about when the government merely publishes somebody else’s work? Can the government get your copyright in that situation? And the Supreme Court unanimously said yes, but split 4 to 3 over precisely how and why that happens.

Michael Geist:
Ok, so we’ve got a crown copyright provision in the law that says the government owns copyright in certain works. At arguing that this can be this. This will include or can include or does include I suppose works that are submitted in the way that the surveyors would be submitting it. The surveyors, of course, arguing that while Crown Copyright should not be covering those kinds of works that gets submitted. You just told us that the Supreme Court of Canada, two decisions, two written decisions, but unanimously hold the crown copyright does cover this. So how did they arrive at that conclusion?

Jeremy de Beer:
Ok, so the court sets out the test for when the government can acquire someone else’s copyright by virtue of publishing it. The court split over what is necessary for the government to acquire someone else’s copyright. The majority of four judges agreed with reasons written by Justice Abella, and she said it all depends on the degree of direction or control that the government has over the publication process. The more direction or control the government has over the process of publishing the work, the more likely it is that the Crown has acquired copyright. Now in this case, the Crown had complete control over the process of publishing the work according to the majority of the court there was a comprehensive statutory scheme in Ontario that set the rules requiring surveyors to comply with certain form and content obligations, saying that once a surveyor submits the property or submits the property survey to the land titles office, the surveyor can’t change it anymore. Only government officials have the power to change it, saying that property rights in the survey itself, the physical survey itself, vest in the crown. And so these and other factors led the majority to say that that the government had complete control over the plans of survey and the process of publishing them. And because of that, sufficient degree of control and direction control, Justice Abella said that the Crown acquires copyright.

Jeremy de Beer:
While the majority of the court said everything depends on the degree of direction and control that the government has over the publication process. There were three judges who agreed in the result but would have applied a different test. And those three judges in reasons authored by Justice Justices côté and Brown said that the idea of looking at the degree of control was too impracticable, impractical, that it would create instability in the law of Crown copyright because you never know how much direction in control is enough. So the concurring judges would instead say it really depends on direction and control over the worker, not the work over the person who’s publishing the works, not in this case, the surveys themselves. And so they would look at the relationship between the government and its partner, Teranet, who’s making the surveys available online. But they imposed an additional requirement that the Crown can only get copyright in so-called government works. And they defined government works as works that serve a public purpose where it’s necessary to use copyright to ensure accuracy and integrity and appropriate levels of dissemination, ensuring that it’s accessible where it needs to be but not improperly disseminated. Where where accuracy and integrity here potentially compromised. And so for the minority, it was all about whether these are government works or not. For the majority, it was about whether there’s direction or control over the process of publication.

Michael Geist:
Ok, so we’ve got a majority focusing, it sounds like very much on the plain language of the statute saying this is what the statute says about control. We think there is control. That’s good enough. The concurrence in the minority sort of recognize or come to are of the view that this is problematic because that’s pretty broad. That can be pretty broad in scope as this case would highlight. And so try to read in some limitations. And it sounds like their their core limitation is to talk about government works and create their own definition for what that means beyond what we would think is the obvious when it comes to government work. So that broader public interest side where government control seems or some would argue is appropriate.

Jeremy de Beer:
Ywo nuances. The complaint that the minority had was not about the breadth of the majority’s interpretation, but about the unpredictability of the majority’s interpretation. The minority concern concern was that the test is just unworkable in practice. It’s not that it’s too broad or too narrow. It’s that we don’t know when it applies to all kinds of other works. And so now we can imagine intellectual property applications filed with the Canadian Intellectual Property Office or Securities Prospectuses filed with provincial or federal regulators or pleadings from lawyers submitted to courts and then made available on court websites. In all of these situations and many others, Canadians now need to ask themselves. Does the government have, quote, sufficiently extensive and, quote, control over the process of making these available online and how that applies in any particular cases is really anyone’s guess. So there’s a huge practical takeaway here for Canadians that anytime anybody submits a document that the government later puts online or publishes now needs a legal opinion on whether there’s sufficient degree, direction and control over that process. Where the person might lose their copyright to the government. So that was the real concern of the minority.

Michael Geist:
And by the sounds of it, your you’d share those concerns about how workable the majority’s interpretation of Crown copyright is.

Jeremy de Beer:
I do share those concerns. And in our submissions for the Canadian Internet Policy and Public Interest Clinic CIPPIC, which I represented as intervenor in the court, we raised those concerns about the unpredictability or unworkability of this spectrum of degree of direction and control. And three of the judges really picked up on that and and saw the saw the concerns. The the second nuance is that the majority interpreted this provision not based on the plain language, but with some linguistic gymnastics, they actually sort of twisted the plain language of the act to avoid having an overbroad interpretation where the government would get copyright anytime they merely made somebodies work available online without direction or control. If you look at the words of the provision, they might suggest that the government can get your copyright anytime the government puts your work available on the internet. And and the court kind of ignored the plain language to say that would be too broad. They wanted to stick with a narrow approach.

Michael Geist:
So it sounds like we’ve got real challenges from an interpretation perspective, really. In either case, I mean, in a sense, the courts face facing a provision that I know you’ve noted and many others have noted, sometimes referred to as a legislative monstrosity. It’s been around for decades or more and many, many decades and doesn’t necessarily reflect the way that we think of information today, information submitted to government. And, of course, we’re trying to come up with something. Obviously, you, on behalf of CIPPIC, provided some possibilities, but both the majority and the concurrence try to find a way through this and an ultimately struggle to come up with something that is truly workable in kind of the modern world.

Jeremy de Beer:
That’s right, Michael. So where we’re at is we have a Supreme Court decision that split 4 to 3, which struggles with some very awkward statutory language. All of the judges aren’t able to interpret it based on the plain reading of the words, because that would be so problematic. And so both the minority and the majority reasons come up with a proposed test to limit the scope. But neither of those tests is really workable in practice. And so that’s why it’s so important that parliament takes this issue seriously and and follows through on the committee recommendation to change the law of Crown copyright.

Michael Geist:
So we had the copyright review as part of that review. Crown copyright, I think to the surprise of some members of parliament emerged as an issue was raised by a number of people in the committee, picked up on this and started talking about potential reforms. Does the court itself in this case pick up on the notion of we’re struggling with this provision, perhaps Parliament ought to take a closer look?

Jeremy de Beer:
When when a judge says explicitly in her reasons that the provision is a century old and invites parliament to reconsider it if it sees fit. That’s about as blunt a language as a judge can use in encouraging statutory reform. The parliamentary committee that just completed a thorough review of the Copyright Act in Canada said that the problems with Crown Copyright were a rare point of consensus in hearings where there was divisiveness over many issues. Nobody was in favor of keeping this legislative monstrosity the way it is. And so that the government recommended the committee recommended changing the law.

Michael Geist:
So we’ve got the committee on side with this. We’ve got the witnesses with a consensus on side with us. And now, based on what you’re reading from Justice Abella for the majority, even the Supreme Court of Canada is sending the signal that there’s value in taking a closer look at this and making changes to better reflect where copyright law stands today.

Jeremy de Beer:
Yeah, I’d go further than to say there’s value in doing that. I think it’s imperative that this become one of the key areas where the industry committee’s recommendations are actually implemented.

Michael Geist:
Now, as assuming we move forward with that reform, then you start going towards the principle principles that underlie copyright. And I know that Justice Abella opens her decision by really reframing or restating where Canadian copyright law stands. Can you talk a bit about that? Because that strikes me as yet another important signal coming from the court about how it views balance, copyright and issues surrounding creative rights and users’ rights.

Jeremy de Beer:
One of the interesting things about this judgment was how emphatically all of the judges were about the principle of balance. Justice Abella said that it was so integral to the Copyright Act that it needs to be considered not just when we’re dealing with fair dealing issues, but when interpreting any provision in the act. The minority judges emphasize the concept of user rights, not just interests or expectations. And in fact, both Justice Abella and Justices côté and Brown talked about the importance of user rights and balance being at the heart of the act. So that provides a really useful not just restatement, but but actually framing for. Future cases and for for legislative reform going forward.

Michael Geist:
All right. So I know there has been debate at times over the commitment of the Supreme Court of Canada towards some of those balancing issues that came up before the before the committee, where some have tried to argue that it’s more rhetorical when they talk about balancing user rights. This this feels even beyond just the crown copyright side of the case, like a pretty emphatic statement by the court as a whole that it remains deeply committed to principles of balance and in fact, thinks of the user rights side of that balance in ways that extend far beyond even just fair dealing where much of the debate has centered.

Jeremy de Beer:
There’s no ambiguity about it. The unanimous judgment in both the majority and minority concurring reasons emphasized balance as being integral to the act at the heart of the act, and spoke about both creators and users rights, not just interests or expectations. So that’s now beyond doubt or debate, in my view.

Michael Geist:
It was a powerful statement. And as we think of the possibility of future copyright cases coming up before the Supreme Court, it’s pretty clear that that’s the lens that they are using when they seek to interpret the act and and issues that come up before them. One other thing that I just wanted to quickly touch on in this case was that there were a number of other interveners. You mentioned your role as part of CIPPIC to highlight some of the concerns, but there were quite a number of interveners that focused on primary legal documents. You had CanLII and some of the library associations recognizing that public access to legal information is critically important, that a podcast episode on this a number of months back, talking to Graham Greenleaf from Australia and talking as well with CanLII about the situation in Canada. And so there’s a lot of focus on ensuring that the public has access to legal information and concerns that if Crown copyrights interpreted too broadly, it might restrict some of that access. The intervenors talking about it, how did the court deal with this, if at all?

Jeremy de Beer:
The issue of ownership of the law, statutes and regulations and judicial decisions is one of the biggest problems with Crown Copyright. And the judges actually picked up on that explicitly, citing two intervenors arguments that raised concerns about anyone, whether it’s a private surveyors or the government or the government’s partners owning the law and surveys here. You have to be aware, represent legal boundaries. So they are, in effect, a statement of property law in the province of Ontario. The judges didn’t fully grapple with that issue. Justices côté and Brown said that they would have to leave that for another day, recognizing the seriousness of the problem, but also understanding that they didn’t have the the submissions to deal with the issue thoroughly and properly. Another invitation for parliament to address this question. And so as parliament considers how to implement the Industry Committee’s recommendations for fixing Crown copyright, this question of ownership of legal materials should be a right in the forefront. This is a question that’s coming up right now in other jurisdictions. Some of your listeners may be aware of a case in the United States involving the Georgia Annotated Code and a an online provider called public resource dot org, which is trying to make this law more accessible. The United States Supreme Court has agreed to hear arguments in that case. And so this is a great opportunity for us in Canada to, you know, fix our copyright law in a different forum through parliament. At the same time, as this issue is, is really gaining global attention.

Michael Geist:
So, I mean, it’s interesting, crown copyright isn’t something that I think those who don’t copy follow copyright closely would think of as a as a core burning issue. And certainly I think the m.p.’s and perhaps even some of the Supreme Court judges might not have initially appreciated the role that it can play across a spectrum of access to information related issues in the scope of copyright. But it’s pretty clear that we now have essentially a legislative branch by way of the review, copyright review, the judicial branch. And we’ve got the broader public saying this is something that needs fixing. And as we look to a new government post-election who may be looking for easy wins on issues like copyright, this seems like an obvious place to turn.

Jeremy de Beer:
That’s right. And crown copyright is not an obscure issue by any means. In fact, it’s only going to grow in importance as we move forward in an era of big data, much of it collected or disseminated by governments. Digitization projects involving public private partnerships. The question of who gets the copyright in these circumstances is enormously important and something that the Supreme Court has been clear. Parliament now needs to deal with.

Michael Geist:
Well, we’ll be certainly following closely and see if Parliament does accept that invitation in a sense to act. Jeremy, thanks so much for joining us.

Jeremy de Beer:
Thanks for having us, Michael.

Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.


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The post Episode 30: “It’s Only Going to Get More Important” – Amanda Wakaruk and Jeremy deBeer on Crown Copyright in Canada appeared first on Michael Geist.



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