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The Crown of Copyright

Daniela Bassan

Last month, the Supreme Court of Canada released its much-anticipated decision in Keatley Surveying Ltd. v Teranet Inc., 2019 SCC 43.

This was a certified class proceeding on behalf of all land surveyors in Ontario who registered or deposited plans of survey in the provincial land registry offices.  The surveyors claimed that the Province of Ontario infringed their copyright in the plans as a result of licensing agreements between the Province and its database service provider Teranet.

Following class certification, the parties both moved for summary judgment on the basis of a common issue, namely, whether Crown copyright existed in the plans by virtue of section 12 of the Copyright Act (or whether the surveyors retained copyright in the plans).

The Ontario Court of Appeal found against the land surveyors who then appealed to the Supreme Court of Canada.  Their appeal was dismissed.

The case turned on the construction of section 12 of the Copyright Act:

  1. 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. [emphasis added]

The majority of the Supreme Court (per Justice Abella) interpreted section 12 as requiring a two-part inquiry: (1) whether there is Crown direction or control over the person preparing or publishing the work; and (2) whether there is Crown direction or control over the work itself that is being prepared or published.

This inquiry was answered in the affirmative.

The majority found that the provincial land registration regime gave the Crown complete control over publication of the plans of survey in question.   As a result, the majority concluded that Crown copyright vested in the registered plans of survey pursuant to section 12 of the Copyright Act.  The common issue was answered (summarily) in favour of Teranet, so as to dispose of the class proceeding brought by the land surveyors.

In arriving at these conclusions, the majority relied on basic principles of copyright law, namely:

  • There must always be a balance between Crown copyright on the one hand, and creators’ rights on the other hand.
  • Crown copyright protects works prepared or published under the control of the Crown where it is necessary to guarantee the authenticity, accuracy, and integrity of such works in the public interest.
  • Technological neutrality is a fundamental feature of copyright law and the Copyright Act.

The concurring reasons (per Justices Côté and Brown) agreed with the result, but disagreed on the construction of section 12.

More specifically, the concurring Justices formulated their own two-part inquiry by asking: (1) did the Crown bring about the preparation or publication of the work; and (2) is the work a “government work”.  A “government work” will exist “where the work serves a public purpose and Crown copyright furthers the fulfillment of that purpose. These will be works in which the government has an important interest concerning their accuracy, integrity, and dissemination.”

Once again, the concurring Justices answered their inquiry in the affirmative.

The concurring Justices concluded that, as the registered and deposited plans of survey are government works when they are “published by or under the direction or control” of the Province, copyright in them is vested in the Crown under section 12.

In formulating their approach, the concurring Justices relied on various factors, namely:

  • the plain words of the statutory provision, including the French and English versions of section 12
  • coherence with the objectives of section 12 as well as the purposes of the Copyright Act
  • the legislative history and background of section 12
  • consistency with academic authorities on the topic of Crown copyright
  • consistency with the interpretation of Crown copyright in other Commonwealth jurisdictions

Taken as a whole, the Supreme Court of Canada reiterated fundamental themes in copyright law, while providing directions on statutory interpretation.  Future cases will decide whether the scope of Crown copyright should be expanded or retracted in reliance on the majority and/or concurring reasons in Keatley Surveying Ltd. v Teranet Inc.

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