The Supreme Court of Canada today released its decision in Keatley Surveying v. Teranet, a case that involves the application of the Copyright Act’s crown copyright provision to land surveys registered or deposited in provincial land survey offices. The Government of Ontario argued that crown copyright applies to the surveys. The surveyors argued that it did not and were seeking compensation for their inclusion in a database service run by Teranet under licence from the province. The court ruled in favour of the province, concluding that the surveys are covered by current crown copyright provision.
I’ll address the challenges with that decision in an upcoming post, though it is clear that the majority decision written by Justice Abella is open to legislative reform:
“This provision is a century old. Since this is the first time this Court has reviewed its scope, our approach has taken into deliberative account the jurisprudential developments in copyright law in recent decades. Parliament is of course free to consider updating the provision in its current review as it sees fit.”
The concurrence also recognizes the limits of the provision, adding the need for it to apply solely to government works, which it defines to includes “a work that serves a public purpose and in which vesting the copyright in the Crown furthers that purpose.” It also assuages concerns about the application of crown copyright to primary legal documents by noting that their copyright status “raises unique and complicated issues that are beyond the scope of this case.”
More notable for the purposes of this post is majority’s emphasis on users’ rights in its framing of Canadian copyright law. In fact, the decision expands users’ rights by clarifying that they should be interpreted using “a large and liberal interpretation.” If that language sounds familiar, it is because the court has previously used it to describe how fair dealing should be interpreted. Fair dealing is only one example of a users’ right, however, and the court now says that the same broad standard should be used to interpret all users’ rights. Moreover, the court again emphasizes the “vital role” played by users’ rights and the need for a balance between creators rights and users rights.
The court begins by placing the shift toward a copyright balance in perspective:
“As Binnie J. noted in Théberge, the Copyright Act aims to achieve “a balance between promoting the public interest in the encouragement and dissemination of works … and obtaining a just reward for the creator” (para. 30). Creators’ rights must be recognized, but achieving the proper balance between the Act’s objectives requires curtailing their scope. As he said, “[i]n crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them” (para. 31).
This Court’s post-Théberge jurisprudence has sought to calibrate the appropriate balance between creators’ rights and users’ rights. This balance infused the Court’s treatment of fair dealing in CCH, for example, where McLachlin C.J. noted that “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence . . . . The fair dealing exception, like other exceptions in the Copyright Act , is a user’s right” (para. 48).”
Having noted that fair dealing is a users’ right, the decision then builds to an expansion of the role of users’ rights, stating that fair dealing is only one example (an “emblematic” part of copyright) and noting the need for a large and liberal interpretation of fair dealing and users’ rights:
“In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36,  2 S.C.R. 326 (SOCAN), and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37,  2 S.C.R. 345, the Court confirmed that fair dealing — and users’ rights — are to be given a large and liberal interpretation. In SOCAN, the Court emphasized the vital role played by users’ rights in promoting the public interest. The ability to access and use “works” within the meaning of the Copyright Act , are “central to developing a robustly cultured and intellectual public domain” (paras. 9-10).
Fair dealing is, of course, only one component of Canada’s copyright law. It is, however, an emblematic one as it presents a clear snapshot of the general approach to copyright law in Canada — an approach which balances the rights of creators of works and their users. As Professor Michael Geist has noted, the users’ rights framework, so integral to Canadian copyright law, is “increasingly cited as the paradigm example for emphasizing both creator and user rights” (Michael Geist, “Introduction”, in Michael Geist, ed., The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013), iii, at p. iv). All provisions of the Copyright Act , including s. 12 , must be interpreted with this balance in mind so that the Copyright Act continues to further the public interest.”
This last sentence is worth repeating: the balance between creators rights and users’ rights (which must be interpreted in a broad and liberal manner) applies to the entire Copyright Act, not just fair dealing. While this analysis is important for crown copyright, it will also be important for numerous other copyright issues. As will be further discussed in an upcoming post, today’s decision provides a reminder of the need for statutory reforms of the outdated crown copyright rules that are a poor fit for the modern world, but its impact extends beyond that issue by solidifying the importance of balance in copyright and the integral role played by users’ rights in Canadian copyright law as part of that balance.