* I thank my colleagues Harry Glasbeek and Reuben Hasson, and my friend George Klippert, for usefully commenting on earlier drafts.

1 Section 12 was borrowed in 1921 from s. 18 of the Copyright act 1911 (UK), with only punctuation changes and an inconsequential change in syntax. The only significant change since came in 1994 in the legislation implementing NAFTA. As for all other classes of work, the copyright term for crown works now runs to December 31 in the year in which it would otherwise expire, i.e. to the end of the 50th year after publication, instead of 50 years to the day after publication. The change came in the words starting with "the remainder of the calendar year...." to the end of the sentence, which replaced "a period of fifty years from the date of the first publication of the work." See NAFTA implementation act, S.C. 1993, c. 44, subs. 60(1).

2 R. v. Bellman [1938] 3 D.L.R. 548, 553 (N.B.,A.D.), by Baxter C.J. In Britain this catalogue included, since the time of James I, the authorized version of the bible, as well as other authorized religious readings (psalms, catechisms, prayer books, etc.): Manners v. The King's Printers (1828) 3 W. & S. 268 (H.L.). These are presumably off the list in Canada, where there is no established religion. In the 19th century, Québec's archbishop failed in his attempt to control printing of the catechisms of the catholic church; the court said "there seem to be public considerations deserving of grave consideration, why a book of the nature in the one in question should not lightly be admitted to the tenure and franchise of private property": Langlois v. Vincent (1874) 2 Can. Comm. L.R. 164, 168 (Qué.).

3 See Feather, Publishing, Piracy and Politics: An Historical Study of Copyright in Britain (1994), 11.

4 A claim that in 1828 was called "perfectly ridiculous" (Robert Maugham, A Treatise on the Laws of Literary Property (London, 1828), 103) and seems little better now: see, e.g., Taggart, "Copyright in Written Reasons for Judgment" (1984) 10 Sydney L.Rev. 319. How a claim of prerogative squares with the untrammelled growth of private law reporting in England from well before the 18th century is inexplicable.

5 Richard & Carrière (eds.), Canadian Copyright Act Annotated (1993, Carswell), vol. 2, p. 12-4.1 catalogues 12 classes, without considering that the words "is, or has been prepared" double these possibilities to 24.

6 Ironside v. A.-G. [1988] R.P.C. 197, 202-3 (Ch.D.).

7 Hawley v. Canada (1990) 30 C.P.R.(3d) 534 (Fed. T.D.). On this theory, Canada needs no "Son of Sam" law (under which the state applies the proceeds of a criminal's written exploitation of his/her crime to settle claims the victims may have in respect of the crime), at least for works produced while the criminal is still in prison.

8 Ministry of Supply & Services Canada (1981). The pejoratives are found in this study at p. 51, referring respectively to counsel's comment in A.-G. (N.S.W.) v. Butterworth & Co (Aust.) Ltd (1938) 38 S.R. (N.S.W.) 195, 258 (S.C.) and the criticism of the Patent and Trademark Institute of Canada in a 1978 brief to a copyright committee.

9 Ibid., pp. 38 ff., 51. Taggart, note above, at 322 caps this by relying on events 150 years earlier, in 1508.

10 Here are some reasons suggested by US bureaucrats in the late 1950s when asked by the Copyright Office: "as a matter of principle, material produced by the Government is public property and should be freely available to the public for reproduction; the widest possible dissemination of information developed by the Government should be encouraged, and dissemination might be inhibited by copyright; no private person or firm should be given the exclusive right to publish material prepared at Government expense; the centralization of the printing and publishing of Government material in the Government Printing Office and the Superintendent of Documents should be maintained; the Government should not seek to exact payment for the private use of its published material; if copyright were made available for Government publications, the agencies would receive many unnecessary requests for permission to reproduce their uncopyrighted publications".

See Berger, "Copyright in Government Publications", Study No. 33 prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the US Committee on the Judiciary (86th Cong., 2d Sess.), 27, 39 (1959).

11 Academics may write articles for reasons other than copyright: e.g., the sheer intellectual thrill of it all, (more prosaically) to achieve tenure, or (if tenured) to convince sceptical colleagues they are still alive and breathing.

12 Some might argue this is, to a significant extent, empirically true.

13 This is untrue in one sense: people may still be charged if they want to buy a government work.

14 The Statute of Monopolies of 1623, 21 Jac. 1, c. 3, in s. 10 exempted "any letters patent or grant of privilege heretofore made or hereafter to be made for or concerning printing" from its prohibition.

15 As Kaplan aptly mangles Henry Maine's aphorism in An Unhurried View of Copyright (1967), p. 4.

16 E.g., in Ontario for cabinet documents and prison manuals: A.-G. (Ont.) v. Gowling & Henderson (1984) 12 D.L.R. (4th) 623, 630 (Ont.); in the UK for defence ministry documents relating to cruise missiles: Secretary of State for Defence v. Guardian Newspapers Ltd [1984] Ch. 156 (C.A.), affd on other grounds [1985] A.C. 339 (H.L.); in Australia for foreign policy documents relating to Indonesia's takeover of East Timor: Australia v. John Fairfax & Sons Ltd (1980) 32 A.L.R. 485, 494 (Aust. H.C.).

Even without censorship, governments have other potent weapons of indirect censorship: e.g., firing government officials who publish confidential, not necessarily classified material, and taking any publication profits off them. See, e.g., Snepp v. U.S. 444 U.S. 507 (1980) (ex-CIA agent who failed to get agency's pre-publication clearance of book containing unclassified material held profits on constructive trust for the government); Palmer's Law of Restitution (1993 Supp. by Eisenstein), 55 ff., amending §2.11 of the original work; A.G. v. Guardian Newspapers Ltd [1990] 1 A.C. 109 (H.L.) (ex-MI5 agent Peter Wright's publication of Spycatcher denied UK copyright so he could get no royalties there; alternatively, he held copyright as trustee for the crown, entitling the crown to the royalties).

17 Wheaton v. Peters 33 U.S. (8 Pet.) 591, 668 (1834). For a valuable discussion of the case's background, see Joyce, "The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy" (1985) 83 Mich. L.Rev. 1291; also Patterson & Joyce, "Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations" (1989) 36 U.C.L.A. L.Rev. 719, 731-4.

18 State statutes: Davidson v. Wheelock 27 F. 61 (D. Minn., 1866), (Minnesota laws); Howell v. Miller 91 F. 129 (6th Cir., 1898) (Michigan laws). State courts: Banks v. Manchester 128 U.S. 244 (1888); Callaghan v. Myers 128 U.S. 617 (1888). A court reporter may, however, sell transcripts of evidence to the parties and, under the court's supervision so as to prevent abuse, to third parties: Lipman v. Commonwealth of Massachusetts 475 F.2d 565, 568 (1st Cir., 1973) (Mary Jo Kopechne inquest).

19 Folsom v. Marsh 9 Fed. Cas. 342 (No. 4,901) (D. Mass., 1841). More recently, President Ford was found to have copyright in his memoirs, although not in parts reproducing congressional testimony: Harper & Row Pubs. Inc v. Nation Enterprises 723 F.2d 195, 205-6 (2d Cir., 1983), revd on other grounds 471 U.S. 539 (1984).

20 Heine v. Appleton 11 Fed.Cas. 1031 (No. 6,324) (S.D.N.Y., 1857).

21 28 U.S. Stat. 608 (1895).

22 For the legislative history of the 1895 and 1909 laws, see Berger, note above, pp. 29-35.

23 Building Officials & Code Administrators Int'l Inc v. Code Technology Inc 628 F.2d 730 (1st Cir., 1980). Contra: Frank M. Winstone (Merchants) Ltd v. Plix Products Ltd (1985) 5 I.P.R. 156, 159 (N.Z.C.A.) (designer of kiwifruit trays can enforce copyright against copier of official specifications incorporating the designer's specifications).

24 Rocky Mountain Motor Tariff Bureau Inc v. G.R. Leonard & Co 652 F.Supp. 1473 (D. Colo., 1987); Del Madera Properties v. Rhodes & Gardner Inc 637 F.Supp. 262 (N.D. Cal., 1985).

25 West Pub. Co. v. Mead Data Central Inc 799 F.2d 1219 (8th Cir., 1986), cert. den. 479 U.S. 1070 (1987).

26 See the persuasive attack on West in Patterson & Joyce, note above. The creative spark of originality later demanded in Feist Publications Inc v. Rural Tel. Serv. Co 111 S.Ct. 1282 (1991) (which cites Patterson & Joyce's article approvingly) as a condition of copyrightability is also lacking in West. See also Bellsouth Advertising & Pub. Corp v. Donnelley Information Pub. Inc 999 F.2d 1436 (11th Cir., 1993), denying protection to a yellow pages telephone directory.

27 The relevant part of the treasury board manual appears as Appendix I, pp. ff., below.

28 They allow judges to proffer the amusing notion that "the Crown is [not] to be treated differently than [sic] other litigants": R. v. James Lorimer & Co Ltd [1984] 1 F.C. 1065, 77 C.P.R.(2d) 262, 268 (C.A.).

29 So Lord Camden in Donaldson v. Becket (1774, H.L.) in Parks (ed.), The English Book Trade 1660-1853: The Literary Property Debate: Six Tracts: 1764-1774, (Garland, 1975), p. 31: "Ought not the promulgation of your venerable codes of religion and law to be intrusted to the executive power, that they bear the highest mark of authenticity, and neither be impaired, or altered, or mutilated? These printed Acts are records themselves, are evidence in a court of law, without recurring to the original parliamentary roll." See also His Majesty's Printers v. Buchan (1826) 1 Faculty Decs. 491, 526 (Scot.), affd sub. nom. Manners v. The King's Printers, note above: "From analogy of the acts of Parliament, how could the people be made amenable if spurious copies [of the bible] be put into their hands?"

30 The Treasury Board rules, in paragraph 5 of s. 5.4, also worry that material quoted from Crown copyright material "is accurately reproduced". See Appendix I, p. below.

31 [1940] S.C.R. 218, 227.

32 See Appendix II, p. below.

33 See Massie & Renwick Ltd v. Underwriters' Survey Bureau Ltd [1940] 1 D.L.R. 625, 630-1 (S.C.C.).

34 The treasury board rules found in Appendix I were taken from Richard & Carrière, note above, vol. 2, pp. 12-31 to 12-37. A gap will be seen in the English version of s. 5.4, para. 6, as I have reproduced it in Appendix I, p. below. This is because I have erased a printer's error that had crept into the book's reprint of the rules.

35 See Interpretation act, R.S.C. 1985, c. I-21, subs. 25(2); Donaldson v. Becket, note above.

36 Treasury board manual, s. 5.4, para. 4. See Appendix I, p. below.

37 Nimmer on Copyright (1994), §5.06[A], n. 6.

38 Treasury board manual, s. 5.4, paras. 7 and 8. See Appendix I, p. , below.

39 The preference to Canadian publishers is permitted by the "cultural industries" exemption in NAFTA, Appendix 2106 and arts. 2106, 2107. No such exemption appears in the World Trade Organization agreement of 1994. When this comes into effect in 1996, Canada may be allowed to discriminate only against its NAFTA partners, who then may complain to a WTO trade panel of "arbitrary or unjustifiable discrimination" as compared with other WTO members: see Vaver, "Tripping through TRIPs: Canada and Copyright", (1994) 22 Canadian Newsletter 53, 54 (ABA Committee on Canadian Law/Section of International Law & Practice).

40 The treasury board rules, not then in force, now stipulate a royalty of 10% of net sales revenue, subject to negotiation and to prorating where the government work forms less than the whole of the new work. See Appendix I, s. 5.4, final paragraph, at p. below.

41 R. v. James Lorimer & Co Ltd, note above.

42 US Copyright act, §104.

43 Copyright act, subs. 5(1), passim.

44 Lion Laboratories Ltd v. Evans [1985] Q.B. 526, 553 (C.A.), by Griffiths L.J. Soon after, Griffiths was promoted to the House of Lords, where he continued to deliver useful apothegms like: "If I invite a lady to my house one would naturally think of a duty to take care that the house is safe but would one really be thinking of a duty not to rape her?" Stubbings v. Webb [1993] A.C. 498, 508 (H.L.) (refusing to allow limitation period to be extended for intentional wrongs, like child rape and incest, as distinct from mere negligence); contra: M.(K.) v. M.(H.) (1992) 96 D.L.R.(4th) 289 (S.C.C.).

45 An exception may be Hutcheon J.A., who instanced "a judge's reasons for judgment" as a case where a copyright claim might be contrary to public policy: B.C. Jockey Club v. Standen (1985) 8 C.P.R.(3d) 283, 288 (B.C.C.A.).

46 Note above.

47 Unreported reasons for judgment (Fed. T.D., No. TD-2216-81, April 30, 1982), pp. 17-19.

48 The court said the government was a copyright owner comme tous les autres; it was entitled to an injunction and delivery up, even if it had suffered no economic loss; refusing an injunction was "tantamount" to granting a compulsory licence without statutory authority: note above, C.P.R. at 269. But an injunction is always discretionary. On the court's theory, any time an injunction is refused the court is issuing an unauthorized compulsory licence; which is nonsense. A US appeals court proposed exactly this remedy against the makers of videorecorders it thought were contributing to infringement by home tapers: Universal City Studios v. Sony Corp 659 F.2d 963, 976 (9th Cir., 1981), revd 5:4 on liability 464 U.S. 417 (1984) (the dissenters agreeing with the lower court on remedy, U.S. at 499-500). More recently, a US appeals judge is encouraging more use of damages instead of injunctions in copyright infringement cases, to minimize incursions on free speech: Leval, "Campbell v. Acuff-Rose: Justice Souter's Rescue of Fair Use" 13 Cardozo Arts & Ent. L.J. 1, 23-6 (1994).

49 On what constitutes an agent of the crown, see Dableh v. Ontario Hydro (1993) 33 C.P.R.(3d) 544 (Fed. T.D.). For the analogous US position, see Goldstein, Copyright: Principles, Law & Practice (1989), §, nns. 49, 50.

50 Vaver, Canada, in Nimmer & Geller (eds.), International Copyright Law & Practice (updated to 1994), §8[2][b].

51 US Copyright act, §511 (added in 1990); Deni, "Copyright and the Federal Government: Ghosts of Protection for Authors" 6:4 Communications & The Law 15 (1984).

52 Private sector employers acquire first ownership of copyright in any material their employees produce as part of their job, as do those who hire freelancers to produce portraits, engravings and photographs: Copyright act, subss. 12(3), 12(2); Sec. of State for Defence v. Guardian Newspapers Ltd, note , above. In A.-G. (Ont.) v. Gowling & Henderson, note , above, provincial cabinet documents and a prison manual were protected, inter alia, by copyright owned by the province. Note also that provincial governments can claim crown copyright under section 12: see A.-G. (N.S.W.) v. Butterworth & Co (Aust.) Ltd, note above, at p. 249.

53 US Copyright act, §§201(b), 101 ("work made for hire"); National Conference of Bar Examiners v. Multistate Legal Studies Inc 495 F.Supp. 34, 35 (N.D. Ill., 1980), copyright claim affd 692 F.2d 478 (7th Cir., 1982); Nodiff, "Copyrightability of Works of the Federal and State Governments under the 1976 Act" (1984) 29 St. Louis L.J. 91, 112-3.

54 Copyrights in unfinished or private work may not always be seizable, nor does every Canadian province allow summary seizure of copyrights: see Vaver, "Can Intellectual Property be Taken to Satisfy a Judgment Debt?" (1991) 6 Banking & Finance L.Rev. 255.

55 Schnapper v. Foley 667 F.2d 102, 109 (D.C. Cir., 1981).

56 In Canada, there may be some vague public policy limits on this right. For example, the government should not be able validly to contract to prevent access to legislation or caselaw until a private publisher gets round to publishing this material. If the royal prerogative creates this right, it also imposes a constitutional duty on the government to make the laws available to those bound by them: His Majesty's Printers v. Buchan, note , at pp. 508-9. One sanction for breach of this duty is for judges to refuse to enforce laws to which people have no access: Lim Chin Aik v. R. [1963] A.C. 160 (P.C.).

57 Judicial decisions and the laws of the land are of course excluded: State of Georgia v. Harrison Co 548 F.Supp. 110, 114 (N.D. Ga., 1982). For federal contracts, there is also the proviso that the private copyright cannot be a subterfuge to avoid § 105: Schnapper v. Foley, note above.

58 Report of the US Senate Committee on the Judiciary on Copyright Law Revision, Report No. 94-473 (Nov. 20, 1975), in 1 CCH Copyright Law Reporter §15,567, at §15,578.

59 Schnapper v. Foley, note , p. 111. On the other hand, a private publisher given an advance copy of a government report that would be later officially printed by the Government Printing Office could not validly claim copyright in the report, as distinct from photographs or the introduction added by the publisher to the report: Opinion of the Comptroller General of the US, 158 U.S.P.Q. 172, 36 Cop. Off. Decisions 829 (1968), recommending that pre-release copies be made available to all publishers who want them.

60 See, e.g., Simon, "A Constitutional Analysis of Copyrighting Government-Commissioned Work" 34 ASCAP Copyright Law Symposium 39 (1987).

61 Roy Export Co Est. v. Gauthier (1973) 10 C.P.R.(2d) 11, 17 (Fed. T.D.). See also US Senate Judiciary Committee Report, note above, §15,578: "The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted, and there are no valid policy reasons for denying protection to United States Government works abroad."

62 As has been said of judicial decisions: Banks v. Manchester 128 U.S. 244, 253 (1888). Further, a person who does qualify as author or owner may not necessarily be the same under Canadian and US law. For example, the person qualifying in the US as author and copyright owner may qualify as neither author nor owner under Canadian law, and so may be unable to sue in Canada for infringement: see Vaver, Canada, in Nimmer & Geller, note above, §§ 4[1][b], 4[2].

63 U.S. v. First Trust Co of St Paul 251 F.2d 686 (8th Cir., 1958); Public Affairs Associates Inc v. Rickover 268 F.Supp. 444 (D.D.C. 1967); Harper & Row Pubs. Inc v. Nation Enterprises, note above. Note, however, Treasury Board of Canada Manual, s. 5.1, which directs employees to pre-clear copyright issues with their institution where "material relating to institutional programs", failing which copyright in the completed work "automatically becomes the property of the Crown" under Copyright act, s. 12 (see Appendix I below). Whether s. 12 justifies this instruction is doubtful.

64 Sherrill v. Grieves 57 Wash. L.R. 286 (Dist.Col., S.C., 1929). Similarly, in the private sector: Noah v. Shuba [1991] F.S.R. 14 (Ch.); Williams v. Weisser (1969) 38 A.L.R. (3d) 761, 78 Cal. Rptr. 542.

65 Scherr v. Universal Match Corp 417 F.2d 497 (2d Cir., 1969), over dissent by Friendly J.

66 Copyright act ss. 14.1, 14.2, 28.1, 28.2. Moral rights were a side-issue in the Lorimer case, note above. The cover of Lorimer's abridged version read as if person responsible for the source work had also written the abridgment. The author did not sue for false attribution but, when complaint was made on his behalf, the publisher obliterated the reference from the cover.

The US Copyright act does not have a general moral rights provision, but many equivalent rights can be vindicated through the laws of misrepresentation, unfair competition, copyright infringement or breach of contract: see, e.g., Gilliam v. ABC 538 F.2d 14 (2d Cir., 1976); Vaver, "Authors' Moral Rights in Canada" (1983) 14 IIC 329, 330 ff.

67 Treasury board manual, s. 5.2. See Appendix I, p. below.

68 The government stated it would "respecte l'intégrité des oeuvres des créateurs" and "reconnaisse a l'employé-auteur le droit de signature et, en cas de désaccord sur le contenu de l'oeuvre, le droit de retrait de signature, ces droits ne s'appliquant pas aux créations des ministères et organismes destinées à des décisions, orientations ou politiques ministérielles ou gouvernementales": Nabhan, Droit d'auteur et banques d'information dans l'Administration (Publications de Québec, 1992), Annexe 3, pp. 111-2; see also pp. 55-7.

69 Quaere whether the government is entitled to control judicial and quasi-judicial decisions: see, e.g., Hutcheon J.A. in BC Jockey Club v. Standen, note above; Maugham and Taggart, both note above.