In Chapter 4 of my soon-to-be-completed LL.M. thesis on access to law-related information in Canada in the digital age, I argue that the retention in Canada of Crown copyright and Crown prerogative over printing of statutes (and perhaps case law) and other government law-related information is anachronistic and a damper on easy access to law-related information. I claim no orginality in this argument since a number of critics have already made the case. However, in the age of the Internet, it is time for the Canadian federal (and provincial governments) to articulate a clearer information policy that includes that abolition of Crown copyright and prerogative over most forms of government information, particularly legislation and case law.
Professor Geist is one of many commentators critical of the government’s approach on Crown copyright. I particularly like Professor Vaver’s statement on this issue that “the smell of the crumbling pages of 17th century law reports hangs over the dancing pixels on the electronic highway” (David Vaver, âCopyright and the State in Canada and the United Statesâ? (1996) 10 I.P.J. 187 at 192).
Denis Marshall summed up the situation nicely:
On the face of it, two relatively small doctrines, Crown prerogative and Crown copyright, have determined our public policy on the publication of, and access to, legal information. These doctrines control ownership in statutes, regulations, judicial decisions and decisions of administrative boards. Ownership means controlling the publication and distribution of this information, whether in print or electronic form. It means control over access to the âlaw of the landâ? ( Denis Marshall, âCrown Copyright: Navigating the Watersâ? (1993) 18 Can. L. Libraries 175 at 175).
Historically, through Crown prerogative and its licensing schemes, the English Crown was able to control and censor printing. Even under statutory Crown copyright, we have examples of control/censorship – see The Attorney-General v. Butterworth & Co. (Australia) Ltd. (1938), S.R.N.S.W. 195, where the court upheld the attempt by the Australian government to prohibit a private legal publisher from publishing (annotated) statutes without permission of the government.
Perhaps the strongest justification for Crown copyright is the need to ensure the integrity and accuracy of legislation and judicial decisions. Given that one of the reasons for the prerogative power was the duty of the monarch to ensure the laws were accurately represented, this argument perhaps has some validity. Or does it? In a jurisdiction where there is no Crown copyright, such as the United States, shouldnât there be evidence of abuses and risks of inaccurate legislation or case law permeating throughout the jurisdiction? However, there is no evidence that this is a problem in the United States, calling into question the concern over accuracy as justifying the policy for Crown control. Vaver also makes the point in his usual humorous fashion that there is always a risk of some inaccuracies whether it is the government providing the information or the private sector:
The reason for the Crownâs having the right is said to be ensure accuracy â the same reason that justified the British Crownâs claim to control publication of the authorized version of the English and Scottish Bibles. The fear was someone might publish the Ten Commandments with a few choice revisions: miss out a ânotâ? here and there, and where would society be? (Perhaps a great deal more interesting, but certainly not the exemplar of âpeace, order and good governmentâ? the British upper classes expected of others, if not of themselves.) This reason assumes the infallibility of government printers and the relative sloppiness of private sector publishers; neither charge is entirely true today (David Vaver, âCopyright Inside the Law Libraryâ? (1995) 53 The Advocate 355 at 357).
Patterson and Joyce note, for example, that, after the decision in 1834 in Wheaton v. Peters, where the U.S. Supreme Court ruled that the goverment had no copyright in judicial decisions, publishers scrambled to publish case law reporters once the monopoly over reporting had been removed; this resulted in more publications being available to the public at a lower cost (L. Ray Patterson and Craig Joyce, âMonopolizing The Law: The Scope of Copyright Protection for Law Reports and Statutory Compilationsâ? (1989) 36 U.C.L.A. L. Rev. 719 AT 734).
Marshall makes a similar point, that âhaving legal information in the public domain would encourage vendors to âadd value,â enhance competition, market the information to a larger audience and allow publishers to target special groups (e.g., educational users)â? ( Denis Marshall, âCrown Copyright: Navigating the Watersâ? (1993) 18 Can. L. Libraries 175 at 177).
To the extent that Crown copyright or prerogative reserves to the government the potential for excessive control or censorship over law-related information that is in its possession, this is an unacceptable situation. Governments currently have a large number of exceptions in access to information legislation that can legitimately protect the disclosure of sensitive information. For government produced information that is law-related and needed by citizens to enforce or discover their legal rights, the added control provided by Crown copyright and prerogative is anachronous and can potentially lead to censorship. As such, Crown copyright and prerogative in legislation and case law and closely-related materials should be abolished.
In fact, the Australian Copyright Law Review Committee has recently recommended that âcopyright in certain materials produced by government should be abolished where there is a strong public interest in their wide disseminationâ? – see: Copyright Law Review Committee (Australia), Crown Copyright 9.27 (April 2005), available online: http://www.ag.gov.au/agd/www/Clrhome.nsf. In this category, the Committee had included primary legal materials. In doing so, they did not find convincing the traditional argument that copyright is needed to provide incentives to authors since the government, in their role as the promulgator of primary legal materials, does not need the incentives to do so provided by copyright law:
The Committee considers that the main reasons traditionally claimed for copyright ownership, that is, providing an incentive for creators and safeguarding the integrity of material, are not persuasive in relation to primary legal materials. Judgments, legislation and similar materials will be produced regardless of financial incentives, and the Committee believes they should be available as widely as possible and at minimal or no cost (para 9.28).
Nor was the committee too concerned about the argument that the government needs to retain copyright or a prerogative right in order to ensure accuracy in its law-related materials:
The Committee also considers that the argument that copyright ensures the integrity of material is over-stated in relation to primary legal materials. There is no incentive for legal publishers to misrepresent legislation or judgments when publishing them, as their reputations for accuracy and due care are crucial. Nor does the Committee consider it likely that there would be any increased tendency to plagiarise or misrepresent judgments if copyright were removed, as was suggested during the inquiry. The Committee notes the comment that âIt is … clear that in those countries that do not restrict the copyright of primary legal materials, a majority worldwide; there is no glut of bogus legislation.â (para 9.31)
In addition, the Committee took into account the likelihood of putting government law-related information into the public domain would provide better incentives for private publishers to publish value-added material:
The Committee does not consider that there will be significant impact on the market for âvalue-addedâ products if copyright is removed; indeed, it has been suggested that the removal of restrictions on reproduction is more likely to stimulate the production of value-added resources (para 9.31).
The Committee was also concerned that the retention of Crown copyright and Crown prerogative could give rise to censorship by the government:
In addition, the Committee is concerned about the capacity for copyright to be used as a tool of censorship, as Sir Laurence Street warned. It is desirable that governments should not be able to withdraw their consent to publish legal materials, an option which is always available if copyright subsists (para 9.30).
In making these recommendations, the Committee also noted the trend in other countries for this sort of law-related information to be made freely available:
There is a worldwide trend to make such material freely available, as evidenced by the growth of international websites which provide free access. Many countries, such as the federal government of the USA and civil law countries such as France, Germany, the Netherlands, Sweden, Finland and Spain, do not recognise copyright in legislation or judgments. Moreover, there is no obligation at international law to protect such materials, and the Committee notes that the European Commission is encouraging member States to make such material freely available . . . . (para 9.29)
In addition to recommending the abolition of Crown copyright and Crown prerogative in legislative and judicial materials, the Committee extended its recommendations to other government-produced materials that should be made freely available, including:
bills, statutes, regulations, ordinances, by-laws and proclamations, and explanatory memoranda or explanatory statements relating to those materials;
judgments, orders and awards of any court or tribunal;
official records of parliamentary debates and reports of parliament, including reports of parliamentary committees;
reports of commissions of inquiry, including royal commissions and ministerial and statutory inquiries; and
other categories of material prescribed by regulation.
The Committee also recommended in its Recommendation #5 that the governments of the Commonwealth, States and Territories be under a statutory duty to disseminate legislation and judgments.
On a related point, it remains extremely frustrating that Canadian federal and provincial governments are slow or loathe to make their online versions of legislation “official” versions. This reluctance to make online versions of legislation official apparently stems from a concern over security and tampering with the data. However, given the ability to verify online sources from other print sources, this risk is not very realistic and is overly cautious, especially since the risk of forgery exists even in a print only environment:
It is contended that the potential for deliberate manipulation of text, to commit fraud or with some other evil intent, is much exaggerated. This potential has always existed with print-based legislation, but, as is the case with print-based text, there are simply too many alternative sources that can be used for verification. Such an act could only be successful by alteration of the text on the government server, which will be well protected by fire-walls and backups (Nicholas Pengelley, âA Not Unhappy Place: Web-based Legislation in Australia and Canadaâ? (2001) 26 Can. L. Libraries 139 at 142).