As Industry Minister Jim Prentice prepares to introduce new copyright legislation, crown copyright is unlikely to be part of the reform package. According to documents obtained under the Access to Information Act, there may be a disturbing reason behind the government's reluctance to address it – crown copyright costs Canadians hundreds of thousands of dollars while being used as a tool to suppress public criticism of government programs.
Dating back to the 1700s, crown copyright reflects a centuries-old perspective that the government ought to control the public's ability to use official documents. Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission. While permission is often granted, it is not automatic.
The Canadian approach stands in sharp contrast to the situation in the U.S. where the federal government does not hold copyright over work created by an officer or employee as part of that person's official duties. Government reports, court cases, and Congressional transcripts can therefore be freely used and published.
The existence of crown copyright affects both the print and audio-visual worlds and is increasingly viewed as a barrier to Canadian film making, political advocacy, and educational publishing. For example, while U.S. governmental reports are freely available and often used for commercial purposes without the need for prior permission, Canadian publishers seeking to release a Canadian report as a commercial title would need approval from the government to do so.
To obtain permission, the publisher would be required to provide details on the intended use and format of the work, the precise website address if the work is to appear online, as well as the estimated number of hard copies if the work is to be reprinted. If the work is to be sold commercially, the publisher would be required to disclose the estimated selling price.
Film makers and educational publishers face similar barriers. Unlike their U.S. counterparts, they must budget for lengthy, expensive approval processes for the use of government clips in their films or documents in their textbooks.
Beyond the policy reasons for abandoning crown copyright, internal government documents reveal other concerns. Financially, the federal crown copyright system costs taxpayers hundreds of thousands of dollars. Documents from Public Works and Government Services Canada, which administers the crown copyright system, reveal that in the 2006-7 fiscal year, crown copyright licensing generated less than $7,000 in revenue, yet the system cost over $200,000 to administer.
In most instances, Canadians obtain little return for this investment. Ninety-five percent of crown copyright requests are approved, with requests ranging from archival photos to copies of the Copyright Act.
More troubling are the five percent of cases where permission is declined. While in some instances refusals stem from the fact that the government does not have rights in the requested work, government documents reveal that some requests are declined for what appear to be politically motivated reasons.
For example, an educational institution request to reproduce a photo of a Snowbird airplane was denied on the grounds that the photo was to be used for an article raising questions about the safety of the program. Similarly, a request to reproduce a screen capture of the NEXUS cross-border program with the U.S. was declined since it was to be used in an article that would not portray the program in a favourable light. Although it seems unlikely that crown copyright authorization was needed to use these images, the government's decision to deny permission smacks of censorship and misuse of Canadian copyright law.
Given the significant costs associated with a program that does more harm than good and that appears susceptible to political manipulation, any new copyright reform should eliminate crown copyright and adopt in its place a presumption that government materials belong to the public domain to be freely used without prior permission or compensation.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.