Teresa Scassa - Blog

The Ontario Court of Appeal has just handed down its decision in Keatley Surveying Ltd. v. Teranet Inc. The case involved a copyright dispute between land surveyors and the private company retained by the Province of Ontario to run its land titles registry. There are relatively few court decisions that discuss Crown copyright in Canada, and so this case has been an interesting one to watch.

It has long been accepted that land survey plans are works in which copyright subsists and that the author of a plan of survey is the surveyor. Under the Copyright Act, this creates a default presumption that the surveyor is the owner of copyright in the work. The dispute in this case is about what happens when that plan is deposited in the provincial land titles registry. While such deposits have been taking place for decades, the issue only became controversial after Ontario moved from its old paper-based registry to an electronic system run by a private company on behalf of the province. Under the electronic system, Teranet, the private company, charges fees for access and for the downloading of documents, including plans of survey. The plaintiff, representing the class of surveyors, objected to what it saw as Teranet profiting from the commercial reproduction and dissemination of their copyright-protected works.

For the surveyors to succeed with their action, they had to establish that they owned the copyright in their works. Section 12 of the Copyright Act reads:

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.

The trial judge found that since they did not create the works under the direction or control of Her Majesty, the Crown could not be said to be the owner of copyright in the plans. However, he was unwilling to find that copyright remained with the surveyors, since to do so might jeopardize the land titles system. Instead, he found that copyright in the plans of survey is “transferred to the province” when plans are deposited. This conclusion is somewhat problematic. As I pointed out in my post on this earlier decision, the Copyright Act requires a signed assignment in writing in order for a transfer of ownership to take place. If the provincial legislation effected a transfer of ownership other than according to the terms of the federal Copyright Act, then this would seem to be a potentially unconstitutional interference with federal jurisdiction over copyrights.

Although constitutional issues were raised before the Court of Appeal, the Court of Appeal arrived at its decision in a way that managed to evade them. The Court agreed that surveyors were the authors of their plans and were thus the original copyright owners. It also agreed that the Crown in right of the Province of Ontario ended up as the copyright owner once the plans became part of the registry. However, Justice Doherty, writing for the unanimous court, disagreed with the approach taken by the trial judge, and rejected the idea that there was a transfer of ownership when plans were deposited in the land titles registry. Instead he adopted a rather interesting interpretation of Crown copyright.

Section 12 of the Copyright Act provides thatthe Crown is the owner of copyright in any work that “is, or has been, prepared or published by or under the direction or control of Her Majesty […]”. Justice Doherty agreed that the plans were not prepared under the direction or control of Her Majesty, but focused instead on the “or published” part of s. 12. In his view, “[m]ere publication” by the Crown does not give rise to Crown copyright – the publication has to be “by or under the direction or control of Her Majesty”. Justice Doherty reviewed the legislation and regulations that related to the land titles system. He noted that the legislation provides for deposit of plans of survey with the province’s Land Registry Office. The statutory scheme also sets strict parameters for the form and content of any plans of survey that are to be deposited. The plans are subject to review, and the Examiner of Surveys can raise questions about the plans with the surveyors, and can require changes to be made before the plans are finally accepted. Justice Doherty noted that this review process did not constitute the “direction or control” necessary to give rise to Crown copyright on the basis that the works were prepared under the direction or control of Her Majesty. However, he found it relevant to the question of whether the “subsequent publication of the registered or deposited plans occurs under the “direction or control” of the Crown.” (at para 37).

Justice Doherty also noted that once a survey plan is deposited in the register, the surveyor is no longer able to make any changes to it without permission from the Examiner of Surveys. He observed that s. 145(6) of the Land Titles Actalso permits the Examiner to make changes at the behest of a third party. Both the Land Titles Act and the Registry Act provide that “certified copies of registered or deposited plans of survey must be made available to members of the public upon payment of the prescribed fee.” (at para 39) Justice Doherty found that the statutory obligation to provide copies of a work “is fundamentally inconsistent with the claim by the document’s author to a right to control the making of copies of the document.” (at para 40) He observed as well that O.Reg 43/96 to the Registry Act provides that no plan deposited in the registry can include “any notes, words or symbols that indicate that the right to make or distribute copies is in any way restricted.” (s. 9(1)(e)).

Justice Doherty found that this combination of provisions created a context in which the Crown has “complete control over registered or deposited plans of survey and complete control over the “publication” of those plans of survey within the meaning of the Copyright Act.” (at para 44) As a result, the plans are works that are published under the direction or control of the Crown, giving rise to Crown copyright in the documents. He stated:

Considered as a whole, the provisions demonstrate that plans of survey registered or deposited in the ELRS are held and published entirely under the Crown’s direction and control. Ownership of copyright does not, however, flow from the provincial land registration scheme. It is s. 12 of the Copyright Act that vests the copyright in the Crown by virtue of the publication of those plans under the “direction or control” of the Crown. (At para 45.)

The solution arrived at by the Court of Appeal is certainly more elegant than that proposed by the trial judge. Nevertheless, it does raise important questions. The first is what actually happens to the original copyright of the surveyors. The Court accepts that they are the first owners of copyright, and that the legislative system does not effect a transfer of rights. Yet at the end of the day, the Court finds that the Crown has copyright in the works. Presumably this extinguishes the copyright of the surveyors, but on what basis? If it is not a transfer, is it an expropriation? What level of statutory/regulatory control is required to trigger such a shift in ownership?

It might not have been necessary for the court to go so far as to find that the Crown assumed copyright over these works. At one point Justice Doherty states that: “The copyright rests in either the Province or the land surveyor who prepared the plan of survey. If the land surveyor has copyright, the making and distribution of paper or digital copies of the plan of survey is a breach of copyright whether done by an employee of the Province or by a third party hired by the Province to perform that function.” (at para 19). What this statement overlooks is the possibility of a licence – one that might well be implied once a surveyor deposits a plan with the land titles registry. Essentially, the same provisions of the statutory regimes governing the registration of plans of survey could be used to support the view that a surveyor who deposits a plan with the registry provides a broad, perpetual licence to the government to reproduce and disseminate the plans as part of the land titles system.

Crown copyright has been a thorn in the side of many who see it as unnecessary at its most benign and a threat to open government at its worst. This decision may breathe complicated new life into this controversial fixture of the Canadian copyright regime.

Published in Copyright Law

A recent Alberta Provincial Court decision raised interesting issues about access to law in the internet and open government era. The case involved a prosecution for alleged violations of the Safety Codes Act for non-compliance with the Alberta Fire Code (AFC). The accused, Mr. Khan, was ultimately acquitted of all counts – the alleged breaches of the AFC were related to either an improper conversion of his property into a rooming house or the improper addition of a secondary suite. The court ultimately found that it had not been established that he had done either of these things.

The access to law issues arose because Mr. Khan, in his defence, raised a number of arguments regarding the relative inaccessibility of the Alberta Fire Code (AFC), and thus his inability to know what rules applied to his actions. In particular, he argued that the AFC was insufficiently published and distributed such that it would be a violation of section 7 of the Canadian Charter of Rights and Freedoms to find people bound by its provisions. He also argued that the defence of “Invincible Mistake of Law” applied to him since the AFC cannot be sufficiently known or followed because of the defects in its publication.

The Alberta Fire Code is one of those sets of rules that occupy a rather odd conceptual space. It sets out binding rules that must be followed, but it is not a provincial regulation enacted by the sitting government and published through the normal channels. Instead, it is a code that is developed by (in this case) the National Research Council, through the participation of volunteer experts from relevant stakeholder groups that include government, industry and the public. Codes developed by the NRC (which include the Fire Code, the Building Code, the Plumbing Code and the Enercy Code) are then adopted by provincial and territorial governments. For example, in Alberta, it is the Fire Code Regulation under the Safety Codes Act that adopts the AFC and declares it to be in force in the province.

In the good old analog days, the difference in accessibility between laws, regulations, and codes like the AFC would have been much harder to spot. Anyone wanting to know what the Safety Codes Act or the Fire Code Regulation provided would have had to get themselves to a library that carried legal texts. They would likely have also found a copy of the AFC at the same library. Alternatively, they could have paid the Queen’s Printer for print copies of the statute and the regulation. The provincial department of municipal affairs would have been happy as well to sell them a copy of the AFC. As far as access goes, it was not wildly convenient – but there were both free and for-fee options, each requiring varying levels of effort.

By contrast, today anyone seeking a copy of a law or regulation can find these quickly, for free, and from anywhere they have internet access, either by visiting the website for the relevant legislature or by visiting the one-stop public resource that is CanLII. Mr. Khan’s arguments were all based around the fact that while the Safety Codes Act and the Fire Code Regulations are publicly available online and for free, the AFC is not. The AFC is still only available for free through a visit to a public library that has one in its collection (not all do). Alternatively, one can purchase a hard copy for $220, or pay for access through an online subscription (with a minimum fee of $40 for 10 days of access). The issue raised by Mr. Khan, therefore, was whether this type of access is good enough in the digital and open government era.

Judge Robertson acknowledged that “accessibility is a basic requirement of the law and forms an important fundamental of a justice system within a free and democratic society.”(at para 48) However, he found that the manner of publication of the AFC did not offend the principles of fundamental justice. He noted that the Safety Codes Act and Alberta Fire Regulation are widely available free of charge, and provide public notice of the application of the AFC. The AFC itself is available either through public libraries or by paying for access. He rejected the argument that the fees for access violated the Charter, noting that the fees charged were “diverted back to the continued maintenance and updating of the AFC, from which all citizens benefit.” (at para 64) Judge Robertson also noted that no evidence had been led to show that the cost of access would be prohibitive to “a significant percentage of homeowners” (at para 70). Further, he noted that “by the very nature of what it controls, the Fire Code is concerned with those who own capital in the form of real property. These individuals are sufficiently well-off to contemplate renovation of that property. Moreover, the purpose of such renovation would be to gain additional revenue from the use of the property as a multi dwelling unit or rooming house.”(at para 72) He found that in such circumstances, the modest cost of purchasing access to the AFC was unlikely to cause hardship.

Taking into account the fact that charges would only arise where there is non-compliance with the AFC, Judge Robertson also showed little sympathy for any defendant who had not gone through the permitting and inspection process required for renovations and who then argued that the AFC was not freely available. He noted that “Speaking generally, an individual cannot complain about the illegitimacy of secret state laws, regulations and Safety Codes, while at the same time, trying to hide unauthorized renovations or increased use of a property from the state.” (at para 75)

Perhaps most importantly from an open government perspective, Judge Robertson rejected the existence of any legal principle or case law mandating the state to “provide hard copy documents of its laws to all citizens absolutely free of charge.” (at para 76). He noted that obtaining hard copies of laws has always come with a fee; nothing has changed in this regard, even where there is also a free online alternative. As a result, there was no violation of s. 7 of the Charter.

Finally, Judge Robertson ruled that the defence of invincible mistake of law was not available. He noted that the AFC was not a secret document, was available to the public in different ways, and could be accessed both for free at some public libraries as well as at reasonable cost from the government. He noted that both the public permit system and a free inspection service provided by the Calgary Fire Department supported citizens in complying with the provisions of the Code.

Essentially, Judge Robertson finds that the current situation falls within what is constitutionally acceptable for access to laws. This does not mean, however, that accessibility could not or should not be improved. The discussion of the accessibility of the AFC and the fees charged for access was framed by a consideration of the laborious process for drafting and regularly updating safety codes such as the AFC through complex multi-stakeholder processes. While it is understandable that cost-recovery might be an objective of the publication arrangements, and while it is arguable the main market for the AFC will be those engaged in business and thus well-placed to pay the fees, the open government movement has generally pushed back against cost-recovery for data and documents regardless of the time and resources needed to prepare and publish them. Cost-recovery is only one policy factor to consider in a debate or discussion about openness. Other considerations, such as transparency and accessibility could outweigh its importance.

Judge Robertson also noted that the process of co-creation leaves copyright in the AFC shared between the federal and provincial Crowns. This means that the agreement of both levels of government is necessary for the publication and dissemination of the AFC. In other words, the decision to make such a document freely and openly available online is more complicated than it would be if only a single level of government is involved. It is worth noting that the often problematic role played by Crown copyright is the subject of a recent petition by Amanda Wakaruk, who advocates for a reform of Crown copyright when it comes to the publication of government documents. Wakaruk’s petition calls for government documents to be free of copyright restrictions once they are made public.


Published in Copyright Law

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