Library Boy: Canadian Association of Law Libraries Wants to Intervene in Supreme Court of Canada Copyright Case

The Canadian Association of Law Libraries (CALL) is considering whether to seek intervenor status in an upcoming appeal to the Supreme Court of Canada dealing with Crown Copyright.

In a communication sent to all CALL members today, the Executive Board of the association wrote:

Keatley Surveying Ltd v Teranet Inc, SCC docket 37863 (Ontario) (Civil) (by leave): Proposed motion by CALL/ACBD to intervene
On June 21, 2018, the Supreme Court of Canada granted leave to appeal in the matter of Keatley Surveying Ltd v Teranet Inc. The decision now under appeal, 2017 ONCA 748, held that copyright in plans of survey deposited with Teranet belong to Ontario, by operation of s 12 of the Copyright Act.

This case is important to law librarians and the legal profession (among other groups, such as government information professionals and copyright professionals) because it will be the first time the SCC squarely considers s 12 of the Copyright Act. Section 12 is the current iteration of the legislative provision that brought the notion of Crown copyright into Canadian law in 1911.

Crown copyright and primary law:

The memorandum of argument of the applicant/appellant (Keatley) which supported the successful leave application makes clear that the question of the interpretation of the words in s 12 is a key question before the court:

32.The applicant submits that this case raises the following issues of national and public importance:

(1) What is the test for determining whether a work is “prepared or published by or under the direction or control of Her Majesty or any government department” within the meaning of s. 12 of the Copyright Act? (...)

CALL/ACBD has directly addressed Parliament twice on the question of the interpretation of these very words, and since 2009 has made a total of at least three consistent statements in favour of the position that Crown copyright should not or does not apply to primary law.

In advance of the 2012 Copyright Act amendments, CALL/ACBD, submitted a letter to the Bill C-32 review committee. Among the submissions CALL/ACBD made was a recommendation that Parliament review Crown copyright provision and legislatively make clear that the words of s 12 do not encompass primary law.

Earlier this year, during the current statutory review of the Copyright Act, CALL/ACBD again addressed a Parliamentary committee and again included submissions that squarely addressed Crown copyright. The submission included the recommendation that Parliament make clear that primary law is outside the scope of s 12’s application. The Copyright Committee’s work on CALL/ACBD’s written brief to Parliament is in progress and is foreseen to reiterate this position on Crown copyright.

Fortuitously, the Copyright Committee sponsored a well-attended session at the 2018 conference on this question of Crown copyright and primary law, and that session presented Canadian, historical, comparative, and policy research to support the legal position. That research can support the work of any counsel retained if an intervention application proceeds. Also, members of the legal profession, copyright academia, and copyright bar informally have expressed the view there is merit in this legal position.

Crown copyright and regulatory schemes:

The second question Keatley raised is also within CALL/ACBD’s interests, from a different perspective:

(2) Does s. 12 of the Copyright Act operate to transfer copyright from the creator of a work to the government when the government makes available to the public a work that was submitted to government as part of a filing requirement under a regulatory scheme?

Unlike the first question, this one does not focus on the meaning and scope of application of the words central to the first question and CALL/ACBD’s previous work on Crown copyright and primary law. Nevertheless, this question may also be of interest to CALL/ACBD’s membership because it raises the possibility by extension that any work, including legal briefs, submitted to government as a part of a regulatory scheme becomes the property of the Crown.

Timelines:

The parties will file their formal notices of appeal and cross-appeal by August 21. The factums are due on or before September 25. By Rule 55 of the Rules of the Supreme Court of Canada, any intervention application must be filed within four weeks of that date. The SCC has now specified in the Docket that the deadline for motions to intervene is October 23, 2018.