“I am monarch of all I survey” is a quote attributed to the English poet William Cowper (1731-1800), and has become a well-known phrase. “All I Survey” was used, for example, by the novelist G.K. Chesterton, for the title of his book of essays in the 1930s. For the purposes of this blog posting, it is going to refer to the charts that land surveyors create when hired by property owners or developers to measure and record land dimensions for purposes of land title. You know, those guys with the rods and little telescopes, furiously writing down compass points and angles. It takes a lot of skill and creativity to produce those charts. After all the on-the-ground measurement is done, the results have to be turned into the charts—at one time paper and now mostly digital—that are relied on for many legal and other purposes. They are almost like works of art. Almost is the operative phrase. An artist can copyright a work of art, but in Canada—according to a recent Supreme Court ruling–a surveyor cannot hold the copyright to a plan or chart that they have produced if that plan has been deposited with the Land Registry Office—as is often required in order to comply with legal requirements attached to the purposes of the survey.
Keatley Surveying v Teranet Inc.
The story goes back a few years, in fact to 2007 when Keatley Surveying brought a class action suit in Ontario on behalf of all land surveyors in the province who had registered and deposited plans of survey in the provincial government’s Land Registry Office (LRO). The complaint was that Teranet Inc., a private company that manages (on behalf of the LRO) Ontario’s Electronic Land Registry Services, known as ELRS, infringed surveyors copyright by digitizing, storing and copying surveyors’ plans. Teranet then charged the public for access to the plans while remitting no copyright fees to the surveyors who had drawn them. ELRS has digitized what was previously a paper-only survey and land registration system. Under the old hard-copy system, which in Ontario dates back to the early 19th century, the public could always get copies of surveys for a fee. The fee was charged to cover the making of copies, but no part of that fee ever went to the surveyor who prepared the plan. Under the ELRS Teranet is licensed by the province to provide a service to the public for access to digital survey records. At issue is the question of whether Teranet, a service provider to the provincial government (“the Crown”), is violating the copyright of the surveyors through digitization. Teranet’s defence rests on Crown copyright, that is, the copyright of a deposited survey vests in the Crown (the government of Ontario) and therefore there is no violation of the surveyors’ rights. Whether there is copyright in the survey plans is not the issue; who owns the copyright is the point of dispute.
Keatley lost the first round and appealed to the Ontario Court of Appeal. In that case the court laid out four non-controversial facts (1) copyright exists in surveys as they are considered artistic works (2) the surveyor who prepares the survey is the first owner of copyright in the work (3) the case concerns only surveys deposited in the ELRS and (4) there is no obligation on surveyors to deposit their surveys with the ELRS (although not to do so would seem in many cases to nullify the purpose of undertaking the survey in the first place). The court concluded that on the basis of these four elements, Teranet had not expropriated copyright in the works. However, the real question was whether or not the copyright of surveys deposited with the ELRS belongs to the Crown.
The Court of Appeal held that it did and this has now been reaffirmed by the Supreme Court of Canada in Keatley Surveying v Teranet Inc. It is worthwhile to explore the Court’s reasoning and the implications of its decision. Section 12 of the Copyright Act confers copyright on the Crown for, among other criteria, any work “prepared or published by or under the direction and control of…any government department”. Government copyright lasts for 50 years beyond the date of publication. Do the works digitized and made available (published) by Teranet fall within the ambit of this description? Logic would indicate that they do, and both the provincial Court of Appeal and the Supreme Court have confirmed this. Even though Teranet is a private company, it is acting as the licensee of the provincial government’s Land Registry Office and performs its duties under the direction and control of a government department or agency. On its face, that much seems pretty clear.
Section 12 of the Copyright Act
But what about the wider implications of Section 12 with regard to works published by or under the direction and control of the government? Section 12 could arguably be read to suggest that the Crown could take copyright in any work simply by publishing it, or directing that it be published. For example, if the Department of Agriculture decided to publish, or re-publish, a book on horticulture in which the copyright was held by the author, would Section 12 give the copyright to the government? If the Department of Health decided to republish a health monograph produced by a noted medical researcher, could the Crown claim copyright? How about a collection of modern prints published by the National Gallery of Canada, a government agency? Do the artists lose their copyright reproduction rights? These are all hypothetical but valid questions. The question of who owns surveys deposited with ELRS in Ontario thus raises broader issues.
Section 12 was incorporated into Canadian law almost a century ago, in 1921, drawn from the British copyright statute. Keatley v Teranet is the first time that it has been litigated and interpreted by the courts in all that time, and a fresh look at the terms of the legislation is long overdue. While reaffirming in a 7-0 ruling that the digitized surveys published by Teranet fell within the definition of Crown copyright according to Section 12, the Supreme Court justices went to considerable length to address the broader questions raised by the wording of the statute and attempted to ring-fence this particular case to limit the potential for assertion of Crown copyright in other circumstances. How did they do this? Copyright lawyer Barry Sookman, who acted for Teranet, has provided a detailed analysis of the Court’s reasoning. The Court provided two arguments; while all agreed that Section 12 conferred copyright on Teranet as an agent of the Crown, the majority took the view that for a work to be published under the “direction and control” of a government agency, it is essential that the Crown “exercises direction or control over the publication process, including both the person publishing the work and the nature, form and content of the final, published version of a work”. Put another way, if a government agency simply republished someone else’s work, this would not qualify for Crown copyright.
The minority, while agreeing on Crown ownership of the copyright in the registered survey plans, argued that for a work published by the government to fall within Crown copyright, it had to be a “a work that serves a public purpose (emphasis added) and in which vesting the copyright in the Crown furthers that purpose”. Works serving a public purpose would be those “for which accuracy, integrity and dissemination will be important for the works to effectively fulfill their public purposes”. In other words, works on which the public relies, and where authenticity and easy access are important. The caveats were added by both the majority and the minority in an attempt to prevent an overly broad and expansive interpretation of the Keatley/Teranet ruling.
It is easy to understand that the right to publish and protect documents essential for the effective functioning of public governance, such as laws, statutes and regulations, should fall within the exclusive prerogative of government. This is in fact the case, and in Canada Crown prerogative is a property right that extends well beyond copyright, providing for protection in perpetuity. Other documents integral to the smooth functioning of society and the legal system may not qualify for Crown prerogative yet still merit protection. If they meet the criteria for copyrighted works, Crown copyright may apply as a result of Section 12. Registered private survey plans are an example of the kind of document that seems to fall into this category. (NB: It has been pointed out to me that some surveys, such as Ordnance maps created by government agencies, may be subject to Crown prerogative). However there still remains a grey zone where potentially the copyright of authors could be, in effect, expropriated by government through the act of publication (according the wording of Section 12) even where there may be no public policy justification for the exercise of Crown copyright. This is a danger of which the Supreme Court was clearly conscious. Because of the risk of over-reach, the UK itself repealed its version of Section 12 in the 1980s and Justice Abella, writing for the majority in the Keatley/Teranet case, in effect invited the Canadian Parliament to reconsider the legislation during its current review of Canada’s Copyright Act;
“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.”
It is also worth noting that in its recent review of the Copyright Act, the Industry, Science and Technology Committee of the Canadian Parliament (INDU Committee) noted that a number of witnesses had criticized the existence of Crown copyright in its current form. The Committee made a couple of recommendations including the adoption of open licences for any work prepared or published by or under the control of a government in Canada and in the public interest. The Committee also recommended that legislation be introduced so that the Crown cannot infringe copyright when acting under its statutory authority.
Some US Parallels
The issue of interpreting government copyright is not unique to Canada and has come up in a recent case in the US, currently under litigation at the US Supreme Court. While different in many respects, there are some interesting parallels. The first point to note is that in the US, unlike in Canada or other Commonwealth countries, the federal government cannot own copyright in works that it has created. According to Section 105 of the US Copyright Act, the United States Government cannot hold copyright (in the United States) for any work it publishes or produces. However, that restriction does not apply to state-level governments, and the issue before the US Supreme Court is whether state government copyright exists over documents that the state has authorized for publication, but which do not carry the force of law.
In the case of State of Georgia v. Public.Resource.Org Inc., the Court is tasked to decide whether annotated legal codes (relating to statutes passed by the State of Georgia) are copyrightable as creative works. Although there is no restriction on state-level governments holding copyright, there is an established common law principle in the US that statutes and judicial opinions should not be subject to copyright in order to ensure wide public access. However the State of Georgia argues that annotations to the legal codes (explanations written by scholars and legal experts that explain and expand upon the historical scope and language of the statutes) are creative works, and are distinct from the statutes themselves. As such, the State’s position is that the annotations are protectable. It is common practice for state governments to “farm out” the production of the annotations to outside publishers, who are granted the exclusive right to publish and sell them, backed up by the state’s ownership of the copyright in the annotated codes. Unannotated codes are clearly in the public domain. Public.Resource.Org Inc, a well-known advocate for weaker copyright laws, argues that the public domain should extend to the codes including the separately produced annotations.
There are a number of arguments supporting the right of state governments to copyright annotated codes, viz. state governments have the legal right to own copyrights, annotations are creative expressions of the law but do not constitute the law, providing copyright protection to the annotations helps ensure their publication and wide dissemination and copyright protection for the annotations reinforces the benefits of copyright, such as incentivizing the creation of new works. (For more detail, see here).
While the circumstances of Crown copyright in registered survey plans in Canada and state government copyright in annotated legal codes in the US are different in many respects, including of course having a different legislative basis, the cases are not that far apart in terms of principle. Common to both is the question of whether government copyright extends to documents that are not statutes or regulations but which are nonetheless integral to the smooth functioning of government and provision of government services, and where government copyright facilitates accuracy and wider dissemination of information to the benefit of the public. There is in fact an interesting case in the US relating to government ownership of maps and plans, Suffolk County, NY v First American Real Estate, in which the US Court of Appeals ruled that Suffolk County owned the copyright to its official tax maps. Suffolk County had sued First American for violating its copyright by publishing and marketing the maps without the County’s permission. First American argued that New York State’s Freedom of Information Law barred Suffolk County from asserting a copyright in the maps. In this case, as in the Keatley/Teranet case, government copyright was affirmed.
But what are the limits to government copyright? The Supreme Court of Canada in reaching its decision confirming Crown copyright in registered survey plans tried to establish some criteria, and encouraged Parliament to consider amending Section 12 to clarify when government can claim copyright. In another case before the US Supreme Court, the question of state sovereign immunity in copyright cases will be decided. The court will decide whether US state governments can invoke sovereign immunity as a defence in cases of alleged copyright infringement. I have written about this case before. (here and here).
In a particularly egregious case of misuse of the state’s right to own copyright, the State of North Carolina passed legislation–colloquially known as “Blackbeard`s Law”–to in effect expropriate the copyright of film-maker Rick Allen, who had produced a documentary film recounting the discovery of Blackbeard`s pirate ship off the North Carolina coast. After a dispute with the state over payment of royalties for use of the film, the N.C. state legislature passed a law appropriating to itself the copyright in all “photographs, video recordings or other documentary materials relating to derelict vessels and shipwrecks” in North Carolina. You can’t get much more targeted than that. When Allen sued, North Carolina claimed sovereign immunity in accordance with the Eleventh Amendment to the US Constitution. This amendment, which dates to 1795, has been interpreted to provide state governments with immunity from being sued in federal courts (copyright being a federally regulated issue). But copyright is also guaranteed to authors by Article 1 of the Constitution, and in 1990 the US Congress passed legislation specifically providing for an exemption from state sovereign immunity in copyright cases. The Court will decide if this legislation overrides the Eleventh Amendment.
This outcome of this case, Allen v Cooper, will be illuminating in determining whether state governments can claim sovereign immunity as a defence against infringing the copyright of others. (Some state-run universities have used the same sovereign immunity argument when accused of infringing publishers’ copyright). While a decision in favour of Rick Allen would not limit the ability of US states to own copyright, if they could be sued for infringement this would likely limit abusive actions such as hijacking and invalidating the copyright held by others in order to suit their own ends, as has happened in the Blackbeard case.
In both Canada and the US, albeit under different circumstances, the courts are grappling with the issue of government copyright, and determining when and how it applies. The solution is not to abolish government copyright (where it exists) but to ensure that it is applied only in situations where required to deliver legitimate public policy objectives, and that it is not used in an abusive or expropriatory manner.
©Hugh Stephens, 2019. All Rights Reserved.
The eighth paragraph has been updated to make reference to the fact that some survey plans, such as Ordnance (military) surveys, are subject to Crown prerogative. Copyright is not an issue in such cases as the Crown owns such documents in perpetuity.