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INDU Committee Report

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NDP SUPPLEMENTARY RECOMMENDATION: CROWN COPYRIGHT

Crown copyright was added to the Canadian Copyright Act of 1921, based on language in the 1911 UK Act. This provision (Section 12) provides the government with control over the use, re-use, and distribution of government works, despite the fact that necessary controls are now rendered via the Access to Information Act, enacted more than 30 years ago (in 1983), and the Treasury Board Secretariat Policy on Communications and Federal Identity.

Due to this Canadians must ask for permission to re-use and distribute government works or risk a claim of copyright infringement. Such requests are often delayed and sometimes denied. In contrast, the United States Congress mandated in 1895 that federal government works in that country were not subject to copyright protection. Thus, U.S. federal works are freely available for re-use without threat of copyright infringement. This feeds the democratic deficit in Canada and creates a policy misalignment with our largest trading partner that puts Canadian innovators at a disadvantage. 

Section 12 creates unnecessary and undemocratic barriers to the access and re-use of government information. There is no justifiable rationale for the government to hold economic control over publications that were created to fulfill a government mandate.

Economic incentives related to copyright are meant to encourage the creation of new works, but the creation of government works is motivated by factors associated with good governance, not economic gain. Indeed, the government’s own policies make it clear that economic exploitation of government works is best conducted by private industry.

For more than four decades, parliamentarians (e.g., 1985 House of Commons Committee,  MPs in the House of Commons, 1981, 1993 ), government employees (e.g., 1981 study,  1984 white paper,  2002 report ), and academics (e.g., Judge,  Vaver,  Dryden ) have recommended that Crown copyright be reviewed or abolished.

During the previous review of the Copyright Act, the Government of Canada received more than 200 submissions calling for Crown copyright to be abolished. As part of the current (2018/19) review, a range of stakeholder organizations and individuals have asked parliament to review and/or abolish Crown copyright.

Restricting re-use of government works is antithetical to the aims of open government and liberal democracy. In addition, the permissions process incurs administrative costs for government departments, who have been fielding such requests since a centralized agency was removed in 2013. This decentralization (and the lack of training or education for federal employees) has resulted in inconsistent approaches between departments, creating complexities and denials for legitimate requests made by Canadians.

In 2017, Copyright Librarian Amanda Wakaruk petitioned Parliament to remove copyright protection from publicly available government works. The petition was signed by almost 1,500 Canadians.  In his response, Minister Bains (ISED) noted that parliamentarians will have an opportunity to consider provisions related to Crown copyright during the Copyright Act review.

Committee Observations and Recommendations

  • On page 45, the discussion of “two distinct functions” does not contribute meaningfully to the discussion of s.12.  The “second function” of Crown copyright, also referred to on page 45, pertains to works covered under the Act as a whole (not Crown works covered under section 12). Therefore, relevant paragraphs can be deleted and related content should be removed from this section and addressed elsewhere in the report, perhaps as a section dedicated to statutory authority (not as part of the section on Crown copyright).

Recommendation 11:

This Recommendation should be reduced to one statement rather than two, as indicated below.

  • Recommendation 11 should be revised to read: That the Government of Canada introduce legislation to amend the Copyright Act to provide that copyright is not available for:
  • (a) Statutes and regulations;
  • (b) Official orders and notices;
  • (c) Court and administrative tribunal decisions; and
  • (d) Any work prepared or published by or under the direction or control of the Government of Canada, unless there is an order of the Governor in Council that specifies otherwise in relation to a particular work.
  • Exceptional materials for which Crown copyright protection might be preserved through an order of the Governor in Council should be clearly described, with some guidance around what might be a reasonable justification for such protection. Associated regulations could be developed in this regard.

The committee’s recommendations for Crown copyright are inadequate and do not fundamentally address the problems it has created. They can be best characterized as dismissive of witness testimony, indulging in phoney arguments, undercutting significant economic concerns and further jeopardizing cultural preservation and academic research. Accordingly, they cannot be supported.

NDP Recommendation

Abolishing the current all rights reserved system of Crown copyright would support Open Government principles and related initiatives.

From the Private Members’ Bill C-440  (Act to amend the Copyright Act (Crown copyright)) introduced in the 42nd parliament on April 9, 2019, the following clauses should be passed in legislation:

Section 12 of the Copyright Act is replaced by the following:

 No copyright

  • “Without prejudice to any rights or privileges of the Crown, no copyright subsists in any work that is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department.”

Copyright ceases to subsist

  • “Without prejudice to any rights or privileges of 10 the Crown, any copyright subsisting in a work referred to in section 12 of the Copyright Act, as it read immediately before the day on which this Act comes into force, ceases to subsist as of the day of that coming into force.”

These changes would abolish crown copyright and reinforce Canada’s commitment to Open Government by making government works available for re-use without payment or permission and removes barriers to important work related to stewardship, scholarship, and journalism.

 

Written briefs to committee requesting removal of Crown copyright

 

Written briefs requesting review / reform of Crown copyright

Oral testimony supporting review or abolishment of Crown copyright

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