Crown Not Immune to Copyright Tariffs: Copyright Board of Canada issues reasoning in Access Copyright – Provincial and Territorial Governments Tariffs (2005-2014)
Tuesday, March 20, 2012 by Sundeep Chauhan
On March 15, 2012 the Copyright Board of Canada released its reasons for a preliminary ruling concerning the ability of Access Copyright to seek a tariff for reproductions of literary works by government employees. In allowing the tariff proceedings to continue, the Copyright Board ruled that the provincial governments could not rely on the principle of Crown immunity to evade the application of the Copyright Act and the reproduction tariffs proposed by Access Copyright.
Background
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•Access Copyright filed proposed tariffs (2005 to 2009 and 2010 to 2014) seeking royalties for the reproduction of works in its repertoire by employees of provincial and territorial governments (except Quebec)
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•The governments of Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Nunavut, Prince Edward Island and Saskatchewan challenged the legality of the proposed tariffs on the basis of Crown immunity
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•On January 5, 2012, the Copyright Board of Canada dismissed the immunity claim of the provinces on the ground that the Copyright Act binds the Crown by necessary implication
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•The Copyright Board issued its reasons on March 16, 2012
Analysis
The Copyright Board first determined whether the principle of Crown Immunity, as set out in section 17 of the Interpretation Act, was in fact engaged:
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.
The Copyright Board determined that the principle of Crown immunity was engaged. In making this determination, the Board noted that the actions of the provinces do not deprive the rights holders of their rights under the Copyright Act thereby rendering those rights useless. Rather, the provinces seek to reproduce, or make use of, literary works without having to compensate the rights holders of those works. The Copyright Board agreed that while there was a potential lack of compensation, the rights conferred under the Copyright Act remained i.) exercisable between private parties and ii.) that authors continued to control the use of their works.
The Copyright Board then turned their analysis to whether Crown immunity is a general rule of statutory interpretation or a rebuttable presumption. The Board concluded that while section 17 creates an overall presumption of immunity, that presumption can be rebutted where it can be demonstrated that there exists a contrary intention to otherwise bind the Crown. The Copyright Board determined that the Copyright Act binds the Crown as such an intention is revealed when the provisions are read in the context of other textual provisions.
In determining whether the Crown was bound by necessary implication, the Copyright Board conducted a lengthy analysis of the jurisprudence. The Board determined that when reading section 12 in the context of the Copyright Act:
the terms “without prejudice to any rights or privileges of the Crown” must be read to mean those rights and prerogatives as they relate to Crown copyright. We therefore find that section 12 relates exclusively to matters of copyright and cannot be read to infer any intent on behalf of Parliament to maintain Crown immunity.
Next, the Copyright Board turned to an analysis of other Copyright Act provisions that appeared to provide for exceptions to infringement when the Crown makes certain uses of copyright protected works. In paragraph 68 the Board noted:
When analyzing the whole of the [Copyright] Act contextually, we are irresistibly drawn to the logical conclusion that the [Copyright] Act generally binds the Crown. Certain exceptions were put in place to ensure that certain activities undertaken by the Crown – both federal and provincial – did not infringe copyright.
Having found that the provinces are bound by the Copyright Act by necessary implication, the Copyright Board stated that no further analysis was required. However, the Board stated that in the event they were wrong in their determination, that it would be useful to comment on whether the provinces had waived their immunity either i.) in regard to the totality of the provisions contained in the Copyright Act or ii.) alternatively in regard to certain provisions.
In ruling that the provinces had waived their immunity and chosen to bring themselves within the purview of the entire Copyright Act, the Board stated that the provinces viewed the issue too narrowly and did not apply the benefits/burden exception to Crown immunity correctly, namely, that it was incorrect to limit the benefit conferred on the Crown to copyright granted pursuant to section 12. The Copyright Board further stated that the benefits that the Crown enjoys under the Copyright Act go far beyond those copyrights granted to the Crown pursuant to section 12, i.e. the Crown has rights pursuant to sections 3, 15, 18 and 21 and it exercises those rights through a number of related provisions. The Copyright Board also noted that for years, the provinces i.) have applied comprehensive written policies to ensure that the Crown and its agents respect copyright and ii.) sought authorization and compensated rights holders for the use of their works.
In the end, the Copyright Board determined that the principle of Crown immunity does not apply by necessary implication, and that even if it did, the provinces had waived their Crown immunity. As such, the Copyright Act and the tariffs proposed by Access Copyright apply to the reproduction of works by employees of provincial and territorial governments.
Related Documents
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•Access Copyright - Provincial and Territorial Governments Tariffs (2005-2014) Decision (Crown immunity application) (January 5, 2012);
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•Access Copyright - Provincial and Territorial Governments Tariffs (2005-2014) Reasons (Crown immunity application) (March 15, 2012)
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•Access Copyright - Reproduction of Literary Works by Provincial and Territorial Governments (2010-2014) Canada Gazette, May 9, 2009
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•Reproduction of Literary Works in Canada by Provincial and Territorial Governments for the Years 2005 to 2009 Canada Gazette, April 24, 2004
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