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David VAVER[*]
Osgoode Hall Law School
York University, Toronto

In Canada, the government has copyright in the works it produces; in the US, the government does not.

That, at least, is what a reader quickly scanning the relevant Canadian and US copyright sections might conclude:

Canada: Copyright Act 1921, s. 12 US: Copyright act 1976, 101,105
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.1
101. A "work of the United States Government"
is a work prepared by an officer or employee
of the United States Government as part of
that person's official duties.

105. Copyright protection under this title
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.

But, as often happens, matters are less clear-cut than at first they appear. Reading the Canadian provision, one is immediately struck by the obscurity of the opening words: "without prejudice to any rights or privileges of the Crown". What rights or privileges are these? On investigation, we find this refers to the ancient royal prerogative: the crown's "sole right of printing a somewhat miscellaneous collection of works, no catalogue of which appears to be exhaustive."[2] This non-exhaustive catalogue -- which in the 17th century was said to encompass everything written[3] -- is said today to include statutes, orders-in-council, proclamations, admiralty charts, and (some even say) judicial decisions.[4] The right is conveniently said to be perpetual (so it would cover statutes long ago repealed) and not to lapse through non-use or non-assertion.

The next striking thing is the breadth of the following phrase in section 12. On top of the prerogative power, this allocates copyright to the crown in "any work [that] is, or has been, prepared or published by or under the direction or control of Her Majesty or a government department." If those "or"s are truly conjunctive, that phrase of 24 words potentially includes 24 classes of material.[5] Unsurprisingly, it appears wide enough for the government to publish a work prepared by a freelancer, divesting her copyright and revesting a new 50-year copyright in the government![6]

To cap matters, we find that, if section 12 fails it, the government can rely on the parts of the Copyright act applying to private sector employers. It is on this theory that it has claimed the copyright in all creative work produced by prisoners serving their sentence. Recently, an inmate served his time, opened an art business and wanted to reclaim a painting he had done in jail as part of his rehabilitation. A federal judge decided the government owned both the painting and its copyright. Not only had the inmate been an involuntary tenant of Her Majesty, but also (unbeknownst to him) an employee of Her Majesty paid at the rate of $6 per day. His employer therefore owned copyright in his job output. The artist could not even photograph his painting without the leave of the government.[7]

Small wonder that section 12 has attracted abuse such as "legislative monstrosity" and "atrocious drafting", nor that as recently as 1981 a study by Barry Torno bore the title Crown Copyright in Canada: a Legacy of Confusion.8 For to understand what copyrights the federal and provincial governments could claim at the end of the 20th century, Torno had to retreat into mid 17th century Britain to the time of the restoration of Charles II, well before the passage of England's first copyright law in 1710. Not surprisingly, he found confusion then, let alone now, about exactly what the ancient law was or meant at a time when the role of the monarchy was changing and, with it, the extent of its despotic power.[9]

An exercise like this is only for the dedicated antiquarian, masochist or crown lawyer -- of which I am none. Sadly, nothing has changed in the 14 years since Torno wrote. The "legislative monstrosity" with its "atrocious drafting" sits there in its pristine glory and, in the waning years of Elizabeth II, decisions made by Charles II's judges are still relied on by the governments of Canada and the provinces to support their claims of copyright. The smell of the crumbling pages of 17th century law reports hangs over the dancing pixels on the electronic highway.

Nothing is to be gained in retracing Torno's steps, discussing his conclusions, or hurling further abuse at those responsible for the situation. Instead, I shall examine the US and Canadian laws on government copyright to see what light each sheds on the other. I shall then consider some implications of my findings for government copyright today.

Why no copyright for US government works?

I start by asking why the US does not allow copyright for the works of its government. No clues appear off the face of 105 of the US Copyright act[10] but some hypotheses are easily testable, for example:

1. Government works are valueless and so not worth protecting. I have not seen this suggested, yet, and it seems implausible. As a class, government material seems no less valuable than private sector material.

2. Government works will be produced anyway, with or without the spur of copyright. Giving the government a copyright will not increase the production of worthy works. This may be true too of other works,[11] but it is especially true of government works. Only budget cutbacks slow down their production.

3. Government works are so valuable or important everyone should have them. Everyone should have the fullest possible access to government works, at least so long as their cost of production is recovered. So everyone is free to copy works as they like, and distribute them freely or for whatever price others are willing to pay. This assures fullest possible access at the lowest price.

This sounds plausible, although copyright cheerleaders might find it uncomfortable: it suggests that the more socially useful a work, the less a copyright is justified. The strongest justification for protection would then exist for trash.[12] Nor does the proposition easily explain why it might pay anybody to copy and sell a public domain work commercially: yet this happens quite often, e.g., if the government print run is low or not easily accessible, or if the commercial seller makes the work more attractive than the official publication by adding value to it.

4. Since the government belongs to the people, so do its works; or since the people pay their officials, the officials' works are the people's.[13] This also sounds plausible as an outcrop of democratic theory, under which the government, as part of the people, should serve the people. It should not seek to profit from them, or enable one group of the people to profit from another.

5. The government might use copyright as a tool of patronage. Disallowing it therefore removes the temptation and makes for cleaner government.

This has some truth if former British royal practice is regarded. Both before and after copyright was formally introduced in the early 18th century, the monarch claimed a prerogative right to control all printing and granted patents to his or her supporters (and their supporters) to print useful books.[14] Powerful publishers could be useful allies.

This argument seems trivial today. There are more valuable forms of government patronage around than awards of copyright; and, in any event, if patronage were the problem, the solution would be general rules discouraging it, which would work as (in)effectively in the copyright sector as elsewhere.

6. The government might use copyright as a tool of censorship. The government might try to stop the publication of material it would prefer, for political reasons, to keep hidden. Copyright then runs counter to democratic notions of open government and freedom of information.

This too seems plausible for historically copyright in England was "secreted in the interstices of the censorship",[15] and modern experience in the Commonwealth (including Canada) shows governments successfully using copyright as a weapon of censorship when all else fails.[16]

A little dose of US history and US law publishing

The actual history of US 105 seems partly influenced by the US constitution's first amendment guarantee of free speech and the attitude 19th century US judges assumed toward law publishing. Many struggling lawyers had difficulty affording law books, which affected the quality of law practice and justice. So when, in 1834, Henry Wheaton, the former reporter of the US supreme court reports, took the current reporter Richard Peters Jr to (where else?) the US supreme court for producing a condensed version of the reports under Peters' name, the judges seemed unenthusiastic about giving either man a monopoly over the court's decisions. Peters was doing a good job spreading news of the court's work cheaply (without the arguments of counsel and the annotations Wheaton had included) and so giving the court greater national prominence. So, after a long disquisition on the nature and history of copyright, the court disposed of the issue in a single off-hand sentence at the end of its opinion:

It may be proper to remark that the court are unanimously of opinion, that no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.[17]

Law publishers besides Peters' took this to heart. Cheap versions of state law reports and legislation began appearing throughout the US as courts extended Wheaton to the decisions of all courts and to all legislation (including delegated legislation). No legislature or private person could copyright this material, although they could copyright added value such as headnotes or annotations.[18] Officials other than judges were also affected by Wheaton. True, President George Washington was allowed common law copyright in his unpublished letters and writings,[19] but lower level bureaucrats could not object to their work being put into the public domain by the government.[20]

An 1895 law on the government printing office partly confirmed this activity. It provided that "no publication reprinted from [duplicate] stereotype or electrotype plates and no other Government publication shall be copyrighted."[21] This became 8 of the US Copyright act of 1909: "No copyright subsists .. in any publication of the United States Government, or any reprint, in whole or in part, thereof...".[22]

The observant reader will note the lack of any reference to state court decisions and legislation, but nobody doubted the judges would continue leaving these in the public domain, and so it has proved. Publishers have naturally tried to limit the reach of Wheaton and its progeny, with mixed success and some arbitrary results. Thus, a state building code, largely drafted by private industry, was put in the public domain,[23] but officially approved zoning plans and carrier tariffs were not.[24] Extraordinarily, the page numbering of law reports has also been protected, preventing a legal database from inserting those numbers in the reports it made available on-line;[25] one trusts this error will not be repeated.[26]

Why copyright for Canadian government works?

Why then does the Canadian government exercise copyright over its works? Looking at section 12 of the Copyright act and the treasury board rules implementing it,[27] we may posit the following:

1. If ordinary citizens can have copyright in their works, so should governments. Arguments for equality and equal protection are often attractive,[28] but they founder here because:

* the crown is already treated better than everyone else: e.g., it retains its perpetual prerogative power, and it automatically allocates to itself copyrights that freelancers would hold had they been hired in the private sector.

* the ascription of formal equality to the Crown overlooks the substantive inequality between the government and the people: ask any defendant on criminal legal aid.

* as noted earlier, the government would still produce virtually everything it produces now without the spur of copyright.

* the government can make or break this equality at a stroke: after all, government copyright is created and maintained by the government; no private person has this power.

2. The government has copyright to ensure accuracy. This was a major reason given for the royal prerogative over printing legislation or the authorized religious writings.[29] People had to know how to behave legally and morally: where would society be if someone printed the ten commandments or the criminal code without all those "nots"?[30]

These fears may have been realistic at a time when the state tried to enforce morality through blasphemy and sedition laws, but they are not so now. Government control or licensing does not guarantee accuracy, any more than unlicensed private sector publishing guarantees inaccuracy.

On government accuracy: we all no doubt have our favourite example of mistakes by official printers. My favourite in this context is a passage in the official report of Canada's supreme court in the leading copyright case of Massie & Renwick Ltd v. Underwriters' Survey Bureau Ltd,31 issued under the aegis of the king's printer of Canada. Because of a series of editing errors, the report makes the chief justice of Canada, Sir Lyman Duff, look as if he has plagiarized a former lord chancellor of England![32] Is it not piquant that a decision on copyright, over which the crown itself claims copyright ostensibly to ensure accuracy, is reported in a way that is not only misleading but also defamatory of the chief judicial officer of the land? It took the private publishers of the court's decision, who transcribed it accurately, to resurrect the chief justice's honour.[33]

As to private sector inaccuracy: the market should take care of that.[34] A publisher with a record of inaccuracy will be shunned by those for whom accuracy is critical. Informal sanctions also encourage accuracy. For example, courts may accept only the government printer's version of legislation as authentic evidence,[35] and in the past have refused to accept citations to law reporters with a reputation for imprecision.

3. Government copyright helps prevent material from being used inappropriately. This appears a major worry according to the treasury board manual, which states that permission to copy government material can be refused if the copy would

- be in an undignified context;

- be considered as an unfair or misleading selection;

- be used for advertising purposes in an undesirable manner;

- be used in a context that may prejudice or harm a third party;

- be considered inappropriate by the institution in question for legal or other specifiable reasons.[36]

It is hard to imagine conditions like these surviving parliamentary scrutiny. What counts as an "undignified" context, or "undesirable" advertising? What business is it of the government that a third party may be "prejudiced or harmed" (can't she look after her own interests)? What is "inappropriate for legal or other specifiable reasons"? If a publication is illegal, it may be dealt with on that ground. Is the vagueness of "inappropriate for .. specifiable reasons" tolerable in a democracy?

Assume an artist takes the Copyright act and, after copying it, proceeds to do unspeakable things to it in the name of art. If this activity is not proscribed by the ordinary criminal or civil law, why should copyright -- designed to protect the economic interests of authors and distributors -- be the government's weapon of choice? And if the artist is foolish enough to seek the government's permission to do her art, how could a prior restraint on free speech be justified morally, let alone under the Charter of Rights and Freedoms?

4. The government should be able to make money off its works. This at least is plausible, and probably has history on its side. Note that, of all the departments of government with a possible interest in crown copyright, it is the Treasury Board that has produced the rules for its administration.

Now governments are free to decide that some of their services should break even or even make a profit. Even in the US, postage stamp designs and compilations of "standardized scientific and technical reference data" can be copyrighted.[37] So a business wanting to make a textile design from a postage stamp or to use StatsCan data can hardly complain if it has to ask for a licence or pay for these private for-profit uses. But isolated examples like these hardly justify across-the-board control of all government material.

5. Government copyright can be used to advance general economic welfare. The government could advance economic or social welfare by encouraging or discouraging particular activities through giving or withholding copyright permission, and charging or not charging royalties. So the treasury board rules[38] offer preferential treatment to

* uses that "assist in the achievement of program objectives" of a department;

* non-profit organizations;

* Canadian publishers reproducing statutes, statutory orders and regulations and judicial decisions.[39]

Except for the boost to Canadian law publishing, no coherent policy emerges from this. The general rule -- permission must be sought, it can be denied, and royalties are anyway payable -- does nothing to maximize the use of government material to help the economy or society.

Whether the government can be trusted even to recognize when an activity may "assist in the achievement of program objectives" is doubtful. Take the case of the report on the competition in the petroleum industry issued by the competition director in 1981. This 7-volume report was tabled in parliament and then published for $70. Many free copies were nonetheless distributed, including to public libraries. Along came a small publisher called Lorimer who thought a one-volume condensed version of the report would sell well. But speed was essential lest his project turn into Canadian history. Lorimer spoke with department officials but was met with foot-dragging. So he decided to go ahead anyway. He spent two weeks cutting and pasting, and issued the condensed version at $14.95 two weeks later. Meanwhile Lorimer wrote to the minister of supply and services offering 8% royalty on retail sales of his book.[40] The ministry's lawyer wrote back refusing permission and complaining that the use of the competition director's name on the cover of Lorimer's book suggested the director had also authored the abridgment. Lorimer corrected that by covering the director's name with stickers carrying his publishing company's name. This was still not good enough. Instead of giving him a medal for making the report available cheaply to a wider audience cheaply, the government took Lorimer to court and got an injunction, damages at 8% on past sales, delivery up of all existing stocks, and the costs of the action.[41]

The government admitted it had not lost anything by Lorimer's publication and that widest possible dissemination of the report was an important goal. But all this was set aside to establish the principle of full control over government publications. Whether publications like Lorimer's are any more possible today because of speedier clearance is uncertain. What is certain is that such versions would more likely occur if pre-clearance was unnecessary. The greater distribution of information that would result would surely "assist in the achievement of program objectives" more than any fallout from the occasional unworthy republication.

6. The government has "the right or privilege" to control disclosure or publication of its works. This may historically be the real reason for crown copyright. Crown copyright comes from and is justified by a particular non-democratic conception of government. Look at how section 12 opens: by telling us the "rights or privileges of the Crown" are retained. Note, first, the absence of any reference to preserving the rights or privileges of the people. Why? Because they had none to retain. It is the government, not the public, that has rights and privileges over disclosure and publication of government works. Note, second, the absence of any reference to duties: the crown has rights and privileges, but no duties. It takes no Hohfeld to recognize that the government owes no-one a duty to disclose or publish anything it does not want to.

Taken together, these two silences reveal much about how the legislative and the executive arms of government view their relationship with the people. While the US Copyright act talks of extending copyright to "nationals and domiciliaries" of the US and other nations,[42] the Canadian Copyright act extends copyright to "citizens, residents and subjects".[43] This is the relationship section 12 reflects: that of CROWN and subject, of monarchical government, under which the crown through its delegates does what it thinks best for its people, and the people as the crown's subjects accept this as the best because the crown can do no (or perhaps today, not much) wrong. Under this theory, a government that decides not to publish does so because it has decided the public interest favours secrecy.

The judges are supposedly there to mediate the public interest -- but in practice this means backing the government unless it has gone egregiously wrong in its calculation of that interest. In the rare case where a British court overrode copyright and allowed a publication to occur in the public interest -- significantly not a case involving a government document -- one of the judges cautioned that the decision should not be treated as a "mole's charter": "there is a world of difference," he intoned, "between what is in the public interest and what is of interest to the public."[44]

If one were designing new coats of arms for judges, this would be as good a motto as any; for few Canadian courts take the public interest defence seriously.[45] Consider Lorimer:46 while Jerome ACJ there said "the copyright laws ought not be used to assist the suppression of information when it is in the public interest that that information be made known", he did not recognize any public interest in making published information more widely available.[47] Still he was willing to let the abridgment continue, so long as the publisher paid an 8% royalty; this view did not hold on appeal, where an injunction issued.[48]

When theory meets practice: plus c'est différent, plus c'est la même chose

The Canadian and US laws seem so different on their face that one would expect different outcomes in the two countries. This is true -- to a point. Thus, a report issued by the Canadian government or a body that is an "agent" of the crown would have copyright in Canada; the same report, if issued by any branch of the US federal government, would have no copyright in the US.[49] Also, while the federal and provincial governments, not being bound by the Copyright act, are immune from suits for infringement,[50] the same is not true for their US counterparts.[51]

There are nonetheless some striking similarities between the two systems:

1. Canadian provincial and municipal governments can claim copyright; so can US state and municipal governments. Canadian provincial and municipal governments own the copyright in works produced by their employees, just as any private sector employer does.[52] This is comparable with the US, where state and local governments, also like private employers, have copyright in works produced by their employees or independent contractors,[53] except of course for legislation and judicial decisions; for US 105 explicitly applies only to works of the US government.

2. All governments in Canada and the US can acquire copyrights. Any level of Canadian government can acquire a copyright by assignment or otherwise, as may US state and local governments. And US 105 explicitly states the US government may hold copyrights transferred to it by "assignment, bequest or otherwise". So the governments can, to the same extent as private persons, acquire copyrights from a trustee in bankruptcy and levy execution on them for unsatisfied judgment debts, e.g., for unpaid taxes.[54] More significantly, as governments outsource more of their work, government-financed private contractors in both countries may be compelled to assign to the government copyrights in work they have developed.

105 gives the US government plenty of room to manoeuvre. In one a case, a US government agency contracted with the Pittsburgh affiliate of the public broadcasting service for the production of television films for the US bicentennial. The contract assigned copyright to the government. The court held the assignment valid on a third party challenge to the deal. The court said it was "reluctant to cabin the discretion of government agencies to arrange ownership and publication rights with private contractors" unless there was a subterfuge to avoid 105. Had government employees been detailed as consultants or employees of the broadcaster, the assignment might have been invalidated as a subterfuge. But that was not this case: the films were "neither produced by current or former employees nor related to the official duties of any Government employee."[55]

3. Government contractors in Canada and the US can acquire copyrights. Perhaps as significantly, all levels of governments in Canada[56] and the US[57] may allow contractors they fund to acquire private copyrights in their own names. The reasons for this exception for the US federal government appear from 105's legislative history:

[105] deliberately avoids making any sort of outright, unqualified prohibition against copyright in works prepared under Government contract or grant. There may well be cases where it would be in the public interest to deny copyright in the writings generated by Government research contracts and the like; it can be assumed that, where a Government agency commissions work for its own use merely as an alternative to having one of its employees prepare the work, the right to secure a private copyright would be withheld. However, there are almost certainly many other cases where the denial of copyright protection would be unfair or would hamper the production and publication of important works. Where, under the particular circumstances, Congress or the agency involved finds that the need to have a work freely available outweighs the needs of the private author to secure copyright, the problem can be dealt with by specific legislation, agency regulations, or contractual restrictions.[58]

On this basis, the US court in the bicentennial film case approved of private copyrights for public television producers for instrumental reasons: without copyright, the loss of revenue generated through licensing "would lead to requests for more government money, fewer original programs, or both."[59]

This may be uncontroversial for public television, but not everywhere else. For, as governments cut back the public service and outsource formerly in-house work, less publicly funded material will end up in the public domain. Previously freely accessible and reproducible information may be charged for or even suppressed by private owners. Governmental reorganization may therefore undercut the policy objectives of 105.[60]

The same policy concern exists in Canada, although the Copyright act leaves it entirely to the government's discretion whether to hold copyright in its own name or give the contractor the right to acquire it.

4. All governments may own copyrights abroad. US state, Canadian provincial and local governments in both countries may obviously enforce foreign copyrights for works for which they enjoy local copyright. But governments that may be unable to claim copyright within their territory may be able to claim it outside: copyright is a territorial right and it is irrelevant that a work is unprotectable in its country of origin if it otherwise qualifies for protection in the country where protection is sought.[61] So a US publisher issuing Canadian legislation or judicial decisions in the US may infringe US copyright in this material, just as the Canadian publication of US legislation or case law may infringe Canadian copyright.

This is unexplored terrain. It would no doubt be an interesting exercise to discover who in Canadian law qualifies as the author and owner of material that in the US is deemed authorless and ownerless.[62] Who would by US law be judged to have US copyright in works that in Canada are protected only by crown prerogative is an equally interesting point.

As interesting is the question of how, or even whether, differential treatment based on territory is enforceable in respect of electronic databases like those on the Internet. Are territorial borders relevant any more, where the location of a database is fortuitous and international accessibility is the norm? Is differential treatment justifiable, given the movement toward common standards and national treatment signalled by NAFTA and the World Trade Organization agreement of 1994?

5. Government employees may acquire copyright in non-official work. Government employees in Canada and the US may have copyright in work produced outside their official duties. This is an amorphous area. The copyright in works such as public speeches, memoirs, private diaries, or articles produced by officials who do not have to engage in these activities should belong to the official.[63] Similarly, officers engaged as instructors in military schools may produce teaching material in which they own the copyright. Like university professors, they may be obliged to teach, but the way they teach -- orally or using written teaching material -- is usually left to the individual.[64] The production of the material is then technically "outside" the employment. On the other hand, military illustrators assigned to produce a sculpture under the army's supervision and at the army's cost were said to act in the course of their employment, and so had no copyright in the product.[65]

6. Authors may have moral rights of attribution and integrity. Wherever copyright may or may not initially lie, authors of government works in Canada and the US may retain and vindicate their moral rights of attribution or integrity.[66] The treasury board rules thus suggest authors of formal research and technical publications should be named, while for other publications they should usually be acknowledged in the foreword or acknowledgment page.[67]

The Québec government also explicitly recognizes its officials have moral rights, except where material like government or ministerial policy statements is involved.[68] So, for example, ministers may use or abuse the speeches their ghostwriters produce for them without regard to the author's integrity right, nor would the writer would expect any credit line for her contribution. On the other hand, a justice department lawyer writing a legal opinion for another department can insist that her signature accompany the opinion, but that it be removed if her superior wishes to change the language of the opinion in a way that does not sit comfortably with the original writer.

Implications of government copyright today

Government copyright is quite unsatisfactory in both the US and Canada. A number of things should be done:

In both countries, the copyright status of publicly funded work needs rethinking. The conditions under which the public should have access to this work should mirror more closely the conditions for government works. Where copyright is outsourced, the extent to which the contractor can enforce it should be delineated. Some contractors may not need to retain copyright beyond the time necessary to recoup their investment and a fair profit, after which the right could revert to the government or be abandoned. The same principles should apply where the government acquires copyright from a contractor.

The copyright status of provincial and state government works should parallel the status of federal works, for democratic theory applies to all levels of government. People should be able to obtain comparable material on similar terms throughout the country, from whatever level of government it originates.

Canada's law should be clarified to reflect the imperatives of a modern democracy, not the ancient hierarchy of Crown and subject. In particular:

C.L. Mardi 6 juin 1995