No Copyright Crown immunity

The Copyright Board has released its reasons for denying a claim of Crown immunity by various provincial governments in Access Copyright’s request for a tariff on reproductions by government employees.The governments had challenged the legality of the tariff on the basis that tariffs under the Copyright Act did not apply to the government.

The Board released its decision in January and the reasons were released a few days ago. The proceeding is Access Copyright – Provincial and Territorial Governments Tariffs (2005-2014). The Board held that the principle of crown immunity was engaged but was rebutted by the principle of necessary implication and waiver.

Section 17 of the Interpretations Act states that:

“17. 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 Board accepted the argument that the government would suffer prejudice if required to pay the tariff so the immunity principle is engaged. The Board emphasized that the Copyright Act “does not provide rights in property.”[14] and therefore does not engage common law principles of expropriation.[15]

The Board determined that the government was bound by the Copyright Act because “because such an intention is revealed when
provisions are read in the context of other textual provisions.”[28]

Section 12 of the Copyright Act was reviewed closely by the Board and it was found to be directed to Crown copyright rather than a general immunity(“Without prejudice to any rights or privileges of the Crown…”).[39]

The Board then turned to a series of exceptions that appear in the Act that specifically address various activities of the Crown. The Board concluded that:

“When analyzing the whole of the Act contextually, we are irresistibly drawn to the logical conclusion that the 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.”[68]

In this decision, the Board considered the implication of this decision to apply to all tariffs before the board and all branches of the Crown, not just to these parties and this the specific tariff before the Board.[70]

It will be interesting to see if a judicial review is sought to the Federal Court of Appeal from this decision.

Thanks to Arial Katz for alerting me to the earlier order.