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September 10, 2009
The Honourable Tony Clement, Minister of Industry
The Honourable James Moore, Minister of Canadian Heritage & Official Languages
Dear Minister Moore and Minister Clement:
On behalf of the Canadian Legal Information Institute (CanLII), I wish to thank you for your invitation to comment on the important issue of copyright reform.
CanLII's mission is to support the legal profession in the performance of its duties while providing the public with permanent open access to the legal heritage of all Canadian jurisdictions. We are a not-for-profit organization created by the Federation of Law Societies of Canada and funded by the law societies of Canada's provinces and territories and the Chambre des notaires du Québec. CanLII's primary product, namely its search website, is produced by the LexUM Laboratory at the Université de Montréal's Faculty of Law. This includes one of the largest collections of Canadian legal decisions, legislation and regulations available in the world.
Given that we deal almost entirely with intellectual property, copyright reform is of keen interest to us. There are a number of reform issues that can affect CanLII and its users, but in this submission, we will deal with just one: Crown copyright.
Our reasons will be detailed below, but in summary, CanLII believes that there is no good public policy reason for retaining Crown copyright or Crown prerogative. In any event, even if such a change is not accepted, we suggest that Canada at least abolish copyright in certain materials produced by the judicial, legislative and executive arms of government, including statutes and case decisions.
The centuries old concept of Crown copyright is continued in our current Copyright Act (the "Act") and through the Crown prerogative (except where otherwise noted, references to Crown copyright will include the prerogative rights). For example, section 12 of the Act states that 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.
In addition to s. 12, however, there is a much broader, and less defined, area known as the Crown prerogative. The boundaries of the prerogative are unclear, but they include the sole right to print a variety of works, including statutes. The prerogative clearly extends the government's copyright reach far beyond that afforded to any other persons.
The concept of Crown copyright in Canada and most of the common law world has attracted significant interest and concern. Among the more notable reviews has been the Australian Copyright Law Review Committee on Crown Copyright (the 'Australian committee') (an Executive Summary of their report can be found at Copyright Law Review Committee — Crown Copyright, (PDF 124 KB, 16 pages)). As well, Professor David Vaver published a comprehensive review of Crown copyright in Canada and the US (available at http://www.lexum.umontreal.ca/conf/dac/en/vaver/vaver.html). Rather than repeat what those eminently qualified persons have determined, we will simply mention a few of our concerns with Crown copyright.
The first is that Crown copyright and Crown prerogative places government in a privileged position compared with other contractors or employers, and this is inconsistent with the principle of competitive neutrality. While we believe this is a valid concern, there is a danger of oversimplifying the role of Crown copyright by not recognizing the different types of works created by the various levels of governments in Canada.
On the one hand, governments create materials that are not much different than those created by other sectors of society. Booklets, guides, and program reports are just some of the materials that fall into this category. This type of work is similar to materials created by the private sector. Accordingly, similar copyright concerns exist; there can be issues with restricting changes in the future, ensuring integrity and access, and permitting mechanisms to recoup even a portion of the creation costs. These are concerns for governments too, of course, but we would argue that they can be handled just as effectively through normal copyright rules, without creating a 'super-copyright' that benefits governments to the exclusion of others.
It is the other type of work that governments create, however, which impacts organizations such as CanLII more significantly. In this category are found bills, statutes, regulations, court decisions and official records of Parliament or legislatures, to name a few. At the risk of oversimplifying, these comprise the materials that form 'law'. Only governments create these types of materials, and therefore the rationale of copyright protection is less obvious.
Many of the rules that have arisen regarding Crown copyright might be appropriate for only a subset of government materials, but by definition they apply to them all. As Professor Vaver notes in his paper, a number of reasons have been advanced to support a special copyright over these works. These include:
With respect, we do not believe that these justifications bear scrutiny, particularly in today's information-driven world. We will make a few points on each; more detail can be found in Professor Vaver's paper, and in the Australian committee's report.
While equality is attractive on the surface, this argument disregards the fact that governments currently have a superior right to copyright, due to the Crown prerogative power. We are not necessarily advocating that governments have no copyrights at all, especially on non-legislative materials. What we are saying is that, at the very least, normal rules of copyright should suffice for all parties, government and otherwise.
However the idea developed that copyright was necessary to ensure accuracy in printed legislation, regulations et al, we would respectfully submit that there is no logical reason to believe that copyright enhances accuracy in the public or private sectors.
For one thing, we live in a world where information is much more widely disseminated than ever before. Multiple copies of everything invariably exist in the internet cloud, and while it is possible that some may differ, the vast majority will remain in their original form. Even if errors creep into a particular copy, it is not difficult to return to the official record to determine the correct wording.
In addition, the existing system does not support this argument. Errors have been found in case decisions and legislation even with Crown copyright in effect.
More importantly, any entities that disseminate government materials will find it necessary, as a matter of business survival, to ensure accuracy. CanLII is a major provider of Canadian legislation and statutes to lawyers and lay-persons alike. We take great care to ensure the highest degree of accuracy for our users. Anything less will be fatal to our business, since users will not be able to trust our results. We believe this market imperative is a much more effective and efficient way of ensuring quality.
This issue is similar to argument no. 2, in that copyright is a peculiar tool to use to prevent inappropriate content. But the real question is what use is being protested? While hypothetical examples of improper usage could be imagined (just as with private party works), there are obvious free speech considerations that need to be recognized and protected. In other words, just because something is altered and presented in a manner that is unpleasant, disagreeable, or may hurt someone's feelings is no reason to rely on expanded copyright protection, even if it could prevent such usage. Our society decided long ago that encouraging a healthy and open exchange of ideas through free speech is more often a superior method of battling inappropriate views than simple suppression.
Even in circumstances where the improper use is egregious, we already have legal mechanisms that are more effective to prevent such use. The Criminal Code's prohibition of hate speech is a case in point. Copyright was not designed as a tool to filter ideas.
While this argument may be attractive, it raises the obvious question of whether government should be in the business of profiting from intellectual property. That is a philosophical, or even political, question that is not for us to determine. But even if the purpose of continuing Crown copyright is cost recovery, we submit that using the extra rights enjoyed by the Crown is akin to hammering a nail with a pile driver.
In particular, this argument ignores the significant differences between law and informational materials mentioned above. Whether one believes that a government booklet or guide bears expanded copyright protection, there are different factors in play regarding legislation, case decisions and the like. It may be trite to say that the principle of 'everyone is deemed to know the law' demands full, unfettered access to legislation and case decisions, but there is no reasonable public policy that would encourage less access to the law by citizens. CanLII is just one example of an entity encouraging broader access to legal information, and that access can only benefit citizens and the country as a whole. Put simply, we believe that access to information on the law is too important to leave subject merely to the ability to pay.
If any government ever began seeking to profit from legislation or case decisions, it could lead to even larger issues that would be detrimental to our society. Obviously, no government has considered that approach to date; that itself is an example of how Crown copyright is an unnecessary restraint to apply in this arena.
Given the above, CanLII believes that the Crown copyright/prerogative should be removed from Canadian law. Any vestigial issues can be handled by leaving the normal copyright regime to apply where necessary. At the very least, we suggest that Canada adopt measures similar to that recommended by the Australian committee when dealing with legal materials. Their recommendation 4 could be applied, namely:
Recommendation 4: The Committee recommends that copyright in certain materials produced by the judicial, legislative and executive arms of government be abolished. Those materials are:
Even this minimal measure would help protect democratic ideals and our traditional reliance on the rule of law, equally applicable and accessible to all citizens.
Again, we appreciate the opportunity to provide this submission, and we look forward to working with you as the reform process proceeds. If you have any questions or would like us to provide further information, please contact me and we would be happy to oblige.