What’s yours is mine — Crown copyright in Canada


The Supreme Court of Canada recently issued a decision discussing the provision of Canada’s Copyright Act that provides that the copyright in certain works—irrespective of who authored them—belongs to the Crown. Section 12 of the Act states as follows:

12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

In other words, subject only to any agreement with the author, any work prepared or published by or under the direction or control any government department will belong to the government.

In the case before the court, the works in issue were plans of survey registered or deposited in Ontario land registry offices. Members of the public could request a copy of those documents for a fee and the surveyors, the folks who created the plans, received nothing.

A motion was filed by a surveyor to certify a class action on behalf of all land surveyors in Ontario claiming that the Ontario system infringed their copyright in surveys deposited or registered in the land registry system.

The court first hearing the motion determined, based on the wording of s. 12, that the Province of Ontario had control over the plans of survey once they were deposited or registered in a land registry office. Therefore, the court decided that copyright in the surveys passed to the government.

The surveyor appealed. The Ontario Court of Appeal agreed with the motions judge and focussed on whether the plans of survey were published by or under the direction of the Crown, noting that under the Copyright Act “publication” is defined as “making copies of a work available to the public.” In short, the appellant court also found that the government owned the copyright in the surveys.

The surveyor appealed again, this time to Canada’s top court. The Supreme Court does not hear every appeal parties seek to bring before it. The court saw this as a first opportunity to deal with the scope and application of Crown copyright, noting the provision in issue was enacted in 1921.

Naturally, the Supreme Court reviewed the historical bases for Crown copyright and noted that it would apply where necessary to guarantee authenticity, accuracy, and integrity in the public interest while, at the same time, balancing the need to protect the interests of the authors of works.

Noting the two “branches” of s. 12:

  • works “prepared” for the Crown belong to the government if the Crown exercises direction and control over both the person preparing the work and the work ultimately prepared; and
  • works “published” by the Crown belong to the government if 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 the work.

In the case before the court, the plans of survey clearly were not prepared by or under the direction of the Crown. They were, however, found to be published under the direction of the government. Therefore, applying the above analysis, copyright in the plans of survey were found to belong to the government.

It is important to note that plans of survey of land are tightly regulated and must meet certain requirements before they can be deposited or published by government offices. Not all submissions to the Crown will rise to the same standard of government control. Nevertheless, those who do submit works to the Crown should take notice of the decision in this case as the government may claim ownership, without compensation.