Copyright provides the exclusive legal right to reproduce, publish, and sell a work. The (assumed) incentive this provides for creators is reasonable when the work wouldn’t otherwise be produced (i.e., without financial motivation). Financial motivation is not a factor with government information and yet copyright controls exist for the works created by the legislative and executive branches of government in Canada.
Publicly distributed government works are public goods paid for by Canadian residents. When access and distribution to these works is controlled with legal threat of infringement, the democratic deficit grows larger and conditions conducive to censorship exist. Cultural memory organizations and individuals alike must be able to access, share, and reuse information produced by their government without unnecessary barriers.
- The Government of Canada does not appear to be interested in managing its copyright in a way that is consistent with the public interest. In addition to permission requests from libraries being ignored or denied, attempts to implement open licensing schemes have not resulted in either legacy content or current materials being assigned an open licence in a systematic, comprehensive way.
- As a result of the above, works produced by government scientists, analysts, and researchers receive reduced visibility and impact. In addition, cultural memory organizations are unable to act as stewards for government information, resulting in losses of cultural works and the reduced ability of scholars, journalists, and citizens to hold their governments to account (for evidence, see here and here).
- In September 2019 the Supreme Court of Canada disagreed about how to interpret the provision that concerns Crown copyright, which supports the position that the Crown copyright regime in Canada must be reviewed and reformed.
Removing copyright controls from government works will allow individuals, corporations, and other organizations to make better use of these important resources. It will also allow librarians to continue their role as stewards of government information in a digital world.
Any controls required by the government over the works it produces are already available via the exemptions and exclusions found in freedom of information legislation.
Copyright Act review 2018/2019
The House of Commons e-petition 1116 was drafted in 2017 with the intention of bringing the issue of Crown copyright to the attention of Members of Parliament (MPs) as they began a 2018 review of the Copyright Act. On March 29, 2018, the House of Commons launched its statutory review of the Copyright Act.
Information about meetings and hearings related to the review can be found here. My personal submission to the Committee, focused solely on the issue of Crown copyright and the impact of its misuse on cultural memory organizations, can be found here.
The following individuals and organizations submitted briefs to parliament that stated that the current system of Crown copyright is flawed and asked for its reform or abolishment (in alphabetical order):
- Campus Stores Canada
- Canadian Association of Law Libraries (CALL)
- Canadian Council of Archives (CCA)
- Canadian Association of Research Libraries (CARL)
- Canadian Association of University Teachers (CAUT)
- Canadian Federation of Library Associations (CFLA)
- Canadian Legal Information Institute (CANLII)
- Council of Atlantic University Libraries
- Council of Post Secondary Library Directors BC
- Creative Commons Canada
- Dalhousie Faculty Association
- Langara College
- Library Association of Alberta
- Macewan University
- Maple Ridge Family History Group
- Meera Nair
- Mount Royal University
- Southern Alberta Institute of Technology
- University of Alberta
- University of Alberta Library and Information Studies Students
- Amanda Wakaruk
The following witnesses provided testimony to parliament and/or responded to questions from MPs about Crown copyright. None supported the current system of Crown copyright:
- Canadian Association of University Teachers (questions from MP Terry Sheehan and MP David de Burgh Graham, with responses from Charlotte Kiddell and Paul Jones)
- “Overall, as a matter of principle, we would look towards moving away from crown copyright. I know that in the United States there’s no equivalent of that.”
- Canadian Association of Research Libraries (statements by Susan Haigh and Mark Swartz)
- Canadian Federation of Library Associations (statements by Victoria Owen and Katherine McColgan)
- Dalhousie Faculty Association (questions from MP Majid Jowhar, with statement and responses by David Westwood)
- “We don’t believe that crown copyright serves a good educational purpose in the sense that many of those works were funded already by the public purse and paying for them again doesn’t, in our view, seem to make much sense.”
- Dr. Jean Dryden (open mic statement)
- “The point is, crown copyright is long overdue for a comprehensive rethink. It’s time to transform this outdated monstrosity into a measure that serves the public interest in the digital age. It’s time to do what was recommended in 1977.”
- Brianne Selman (open mic statement)
- “Remove crown copyright in favour of public domain. Many government publications, despite being released to the public, are still not freely available for the public to use.”
- Canadian Association of Law Libraries (question from MP Terry Sheehan with response from Kim Nayyer)
- Susan Paterson (open mic statement)
- “Crown copyright is creating very real barriers to the use and reuse of governments works. In practice, librarians are unable to preserve and provide access to digital versions of government publications without first asking permission. As a result, many publications were deleted and subsequently lost as part of the 2012 overhaul of government websites.”
- Wikimedia Canada (questions from MP Frank Baylis and MP Maxime Bernier, with responses from Jean-Philippe Béland)
- “Contributors to Wikimedia projects are very enthusiastic about accessing quality content from the Canadian government to improve articles in the free encyclopedia. To date, there is a major barrier to the use of this content. Indeed, it is protected by default by crown copyright, which prohibits its use in Wikipedia and other Wikimedia projects.”
- Canadian Council of Archives (questions from MP Frank Baylis, MP David de Burgh Graham, and MP Mary Ng, with responses from Nancy Marrelli)
- “We’ve been promised changes to crown copyright for decades and decades. Crown copyright provisions, as they stand now, do not serve the public interest in the digital age. They’re long overdue for a comprehensive overhaul.”
- Paul Gagnon (question from MP Dan Albas)
- Creative Commons Canada and Open Media (questions from MP David de Burgh Graham, with responses from Kelsey Merkley and Laura Tribe)
- “Canada should reform Crown copyright regime, because all Canadians should have the right to access and reuse, without restriction, work produced by their government. Canada should place these materials directly into the public domain at the time of publishing.”
- Dr. Jeremy de Beer (question from MP Dan Albas)
- Dr. Michael Geist, Bob Tarantino, Casey Chisick, and Dr. Ysolde Gendreau (questions from MP Dane Lloyd, MP Brian Masse, and MP David de Burgh)
- “I think that lots of countries can live without the equivalent of a Crown copyright. This is a system where they have reinforced Crown copyright in the U.K. I don’t think we should follow that train. I think it makes sense, because they are government works, that they should belong to the public, because the government represents the public.”
- Dr. Meera Nair, Dr. Carys Craig (statements)
The lead Committee submitted its recommendations to parliament on June 3, 2019. Its recommendation related to Crown copyright does not appear to follow from its own summary. As stated in a blog post by Adrian Sheppard:
Section 12 of the Copyright Act deals with copyright that belongs to the government. Many have called for Crown Copyright to be abolished, and the Committee points out that “no witness supported its continuation, at least in its current form — a rare point of consensus”(p.43). In light of this, Recommendation 11 may be the most puzzling recommendation in the report. This recommendation does not suggest revising the Act in relation to Crown Copyright, but simply suggests “adopting of open licences in line with the open government and data governance agenda”(p.46). This falls far short of abolishing Crown Copyright, even to the limited extent of statutes and regulations, official orders and notices, and decisions of courts and administrative tribunals. The amendment to the Copyright Act that is included in the recommendation is focused on potential copyright infringements by the Government of Canada, which is unrelated to the issues and concerns around Crown Copyright that had been brought before the Committee.
Both the Conservative Party of Canada (p.154) and the New Democratic Party (p.155) in their formal responses to the report took a much stronger position in favour of abolishing Crown Copyright than did the Committee.
Bill C-209, MP Brian Masse (Windsor West, NDP), February 19, 2020. An Act to Amend the Copyright Act (Crown copyright).
Bill C-440, MP Brian Masse (Windsor West, NDP), April 9, 2019. An Act to Amend the Copyright Act (Crown copyright). CPAC Press conference, April 10, 2019.
Bill C-442. MP Robert Kaplan (York Centre, Liberal), June 2, 1993. An Act to Amend the Copyright Act (Crown copyright).
Recent articles and statements
- Geist, Michael. Podcast with Amanda Wakaruk and Jeremy de Beer, Episode 30: It’s Only Going to Get More Important (Crown copyright in Canada). November 4, 2019. http://www.michaelgeist.ca/2019/11/lawbytespodcast-episode30/
- Benton, Emily, “Abolishing Canadian Crown Copyright: Why Government Documents Should Not be Subject to Copyright” (August 2019). Master of Studies in Law Research Papers Repository. 7. https://ir.lib.uwo.ca/mslp/7
- Joint statement from the library and archives community: Next Steps in Advancing Changes to Crown Copyright. August 2, 2019.
- Freeman, Alan. Government should do the right thing and end Crown copyright. iPolitics, April 26, 2019.
- “Canada’s Crown Copyright: Outdated and unnecessary.” Open Shelf. OLA. (October 2, 2018). http://open-shelf.ca/181002-canadas-crown-copyright-outdated-and-unnecessary/(French translation by Mélanie Brunet, University of Ottawa.)
- Canadian Federation of Library Associations. Position Statement: Modernizing Crown Copyright. September 2018.
- SHOUT for Libraries. Canadian Copyright. https://soundcloud.com/cjsrfm/s4l-copyright CJSR Podcast, January 19, 2018. (interview with Amanda Wakaruk)
- CAUT. The case for balanced copyright. https://www.caut.ca/bulletin/2017/12/case-balanced-copyright. Bulletin, December 2017.
- Dryden, Jean. September 22, 2017. Crown copyright law is outdated and requires comprehensive reform. The review is an opportunity to transform it into a measure that serves the public interest. Policy Options. http://policyoptions.irpp.org/magazines/september-2017/rethinking-crown-copyright-law/
- Climenhaga, David. CANADIAN GOVERNMENT PUBLICATIONS STILL DON’T BELONG TO THE PEOPLE AS OTTAWA MAINTAINS ITS IRON GRIP ON CROWN COPYRIGHT. Alberta Politics. September 14, 2017.
- University of Alberta Libraries. A Simple Fix for Cringeworthy Crown Copyright. University of Alberta Libraries News. September 13, 2017.
- Wakaruk, Amanda. Opinion: Government belongs to the people; so should its documents. Edmonton Journal, June 3, 2017.
Additional suggested reading
- Benton, Emily. Copyright and Public Sector Information: A Comparative Study. Government Information Day East. November 28, 2019. https://www.governmentinformationday.ca/uploads/1/1/2/0/112034557/11-benton_govinfoday.pdf
- Canada. Department of Consumer and Corporate Affairs. Copyright in Canada, Proposals for a Revision of the Law. (Keyes-Brunet Report) 1977.
- Canada. Department of Consumer and Corporate Affairs. (Judy Erola, Francis Fox). From Gutenberg to Telidon, a white paper on copyright : proposals for the revision of the Canadian Copyright Act. 1984. [relevant excerpt: white paper recommended that guidelines be created to prevent unduly restrictions to public access to government works]
- Canada. Industry Canada. Preparing Canada for a digital world : final report of the Information Highway Advisory Council. 1995. [report from the Information Highway Advisory Council advocated that federal government information be in the public domain by default]
- Canada. Parliament. House of Commons Sub-Committee of the Standing Committee on Communications and Culture on the Revision of Copyright. A Charter of Rights for Creators. 1985. [recommended that, “Crown copyright be abolished for some categories of materials and that the scope be greatly restricted for other categories”]
- Canada. Parliament. House of Commons Debates. Waddell, June 12, 1981, page 10545 and Kaplan, June 2, 1993, page 20215.
- Canada. Ministry of Supply & Services Canada. (Torno, Barry.) Crown copyright in Canada: a Legacy of Confusion. 1981.
- Freund, Luanne and Elissa How. “Quagmire of Crown Copyright: Implications for reuse of government information.” Canadian Law Library Review. 40.4 (2015). https://issuu.com/callacbd/docs/cllr_40_4_final.1
- Geist, Michael. Government of Canada Quietly Changes its Approach to Crown Copyright. November 25, 2013. http://www.michaelgeist.ca/2013/11/crown-copyright-change/
- Geist, Michael. Records Indicate Government Misusing Crown Copyright. May 12, 2008. http://www.michaelgeist.ca/2008/05/crown-copyright-column-post/
- Jasserand, Catherine and P. Bernt Hugenholtz. “Using Copyright to Promote Access to Public Sector Information: A Comparative Survey.” WIPO for the Institute for Information Law University of Amsterdam, The Netherlands, June 2012. http://www.ivir.nl/publicaties/download/WIPO_June_%202012.pdf
- Judge, Elizabeth F. “Enabling Access and Reuse of Public Sector Information in Canada: Crown Commons Licenses, Copyright, and Public Sector Information.” in Geist, Michael, ed. From Radical Extremism to Balanced Copyright: Canadian Copyright and the Digital Agenda. Toronto: Irwin Law, 2010. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1956549
- Judge, Elizabeth F. “Copyright, Access, and Integrity of Public Information.” Journal of Parliamentary and Political Law. (March 2008).
- Judge, Elizabeth F. “Crown Copyright and Copyright Reform in Canada.” in Geist, Michael, ed. In the Public Interest: The Future of Canadian Copyright Law. Toronto, ON: Irwin Law, 2005. https://www.irwinlaw.com/sites/default/files/attached/Three_05_Judge.pdf
- Vaver, David. Copyright and the state in Canada and the United States. 1995. https://lexum.com/conf/dac/en/vaver/vaver.html
- Wakaruk, Amanda. February 2016. “Canadian Crown Copyright Conundrum.” Fair Dealing Week 2016 blog post. https://era.library.ualberta.ca/files/b2b88qc23g#.VtYEdlsrJaQ
- Wakaruk, Amanda. December 9, 2016. “Could it be a case of the emperor’s new clothes? Crown copyright and Canada’s commitment to open government.” Toronto, Ontario. Government Information Day. https://doi.org/10.7939/R3Z60C59R
Copyright controls over government works in other countries
In 1895 the US Congress mandated that federal government works are not subject to copyright protection.
Section 105, Subject matter of copyright: United States Government works. “Copyright protection is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.”
A witness at a parliamentary Copyright Act Review hearing stated that, "many encyclopaedic articles on topics of interest to Canadians are illustrated with photographs from the U.S. government, as they are in the public domain."
Legislation varies by country. Some countries exclude broad categories of government works from copyright protections and/or make it clear that Creative Commons licences have been assigned to other broad categories of government works. (Sub-page on this topic coming soon.)
Article 1.2 of the (model) European Copyright Code was drafted by legal scholars in includes the following section:
Art. 1.2 – Excluded works
The following works are not protected by copyright:
a. Official texts of a legislative, administrative and judicial nature, including international treaties, as well as official translations of such texts;
b. Official documents published1 by the public authorities2.
1The term ‘published’ does not imply that a work must formally have been published in an Official Journal or equivalent. However, secret or confidential information can not be considered as ‘published’.
2As to ‘official’ works by private authors, these will be protected until they become ‘official’. Also, questions of moral rights could still arise despite the exclusion.