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Thursday Thinkpiece: Crowne on Judicial Plagiarism

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Judicial “Copying” does not affect Independence or Impartiality: Supreme Court of Canada 
Emir Crowne
(July 29, 2013). Journal of Intellectual Property Law & Practice (Oxford), Forthcoming

(Footnotes converted to endnotes and renumbered)

. . . . The Chief Justice, in particular, must have been aware of the copyright implications[1] of her reasons in Cojocaru [Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30], yet paid little attention to them. The furthest inquiry the Court makes into the copyright realm is where the Chief Justice noted that:

judicial opinions, especially trial judgments, differ from the kind of writings that traditionally attract copyright protection, with the concomitant demands of originality and attribution of sources. Judgments are “usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche” (Stern, at p. 2). Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. Appellate judges may incorporate paragraphs borrowed from another judge on the case or from a helpful law clerk. Often the sources are acknowledged, but often they are not. Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.[2]

This deflection of the judicial duty to attribute sources ignores the fact that all writing is derivative. Indeed, the Supreme Court of Canada has tirelessly stated that copyright is a “creature of statute”[3], and that creature states that “copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work”[4]. Despite extensive copyright reform in Canada[5], there is no statutory exemption for judges or judicial proceedings as there is in the UK[6].

Given the Copyright Act’s non-exhaustive definition of literary work as “[including] tables, computer programs, and compilations of literary works”[7], the written submissions of counsel undoubtedly qualify as original, literary works. There is also no written waiver of counsels’ moral rights in those works. The unattributed judicial incorporation of such works into judgments is not only plagiarism, but a breach of copyright and moral rights.

Furthermore, throughout the Cojocaru judgment the Chief Justice emphasizes that the unattributed copying, in this case, did not impair judicial impartiality[8]. Yet, little attention is paid to the impairment to judicial integrity that unattributed copying can give rise to. The Canadian Judicial Council[9], chaired by the Chief Justice, sets out the “Ethical Principal for Judges”[10]. In it, the Council sets out the general expectations with respect to judicial integrity, among other things:

Principles:

1. Judges should make every effort to ensure that their conduct is above reproach in the view of reasonable, fair minded and informed persons.

2. Judges, in addition to observing this high standard personally, should encourage and support its observance by their judicial colleagues.

Commentary:

1. Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or uninformed criticism, or simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary. Another factor which is capable of undermining public respect and confidence is any conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment. The Canadian judiciary has a strong and honourable tradition in this area which serves as a sound foundation for appropriate judicial conduct. . . .

3. . . . The judge should exhibit respect for the law, integrity in his or her private dealings and generally avoid the appearance of impropriety.[11]

It may be that the trial judge’s reasons, in this case, showed evidence of impartiality (as the Court found), but it is difficult to see how the unattributed and wholesale reproduction of over 85% of the plaintiff’s submissions did not severely undermine judicial integrity.[12] The Supreme Court’s unwillingness to seriously explore the copyright and moral rights implications of this “copying” might stem from the not too distant revelation that judicial integrity was indeed compromised, and is always compromised, when there is rampant and unattributed wholesale reproduction of counsel’s submissions.

 


[1] The Chief Justice, while sitting as such, also penned the foreword for David Vaver’s book on copyright law (David Vaver, Copyright Law (Concord, Ont: Irwin Law Books, 2000)).

[2] Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at para. 33 (emphasis added) (see also, See also, Crowne-Mohammed, Emir, “The Copyright Issues Associated with Judicial Decision-Making (or, Hold on to Your Briefs: Are Judges Required to Cite Material Written by Lawyers?) (June 20, 2011). Intellectual Property & Technology Law Journal, Vol. 22, No. 4, April 2010).

[3] Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, [2012] 2 S.C.R. 231 at para. 47; Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 S.C.R. 336, at para. 5; Compo Co. v. Blue Crest Music Inc., [1980] 1 S.C.R. 357, at p. 373; Bishop v. Stevens, [1990] 2 S.C.R. 467, at p. 477.

[4] Sub-section 5(1), Copyright Act, R.S.C., 1985, c. C-42.

[5] With significant reforms in 1988, 1997 and 2012 (see “Copyright Reform Process: A Framework for Copyright Reform”, Government of Canada. 12 March 2008. 11 October 2008. <http://www.ic.gc.ca/epic/site/crp-prda.nsf/en/rp01101e.html> with respect to the 1998 and 1997 reforms; and the Copyright Modernization Act, S.C. 2012, c. 20 for the 2012 reforms).

[6] Section 45 of the UK’s Copyright, Designs and Patents Act 1988, c. 48 provides that:

(1) Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings.

(2) Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.

[7] Section 2 (“literary work”), Copyright Act, R.S.C., 1985, c. C-42.

[8] Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 at paras. 22, 26, 55, 56, 60 and 73.

[9] “The Canadian Judicial Council is a federal body created under the Judges Act with the mandate to promote efficiency, uniformity, and accountability, and to improve the quality of judicial service in the superior courts of Canada.” (emphasis in original) (Canadian Judicial Council, “About the council”, available at: http://www.cjc-ccm.gc.ca/english/about_en.asp?selMenu=about_main_en.asp).

[10] Available at: http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf.

[11] Available at: http://www.cjc-ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf.

[12] As Sir Stephen Sedley poignantly remarked in Crinion & Anor v. IG Markets Ltd, [2013] EWCA Civ 587:

Information technology has made it seductively easy to do what the judge did in this case. It has also made it embarrassingly easy to demonstrate what he has done. In principle, no doubt, it differs little from the modus operandi of the occasional judge, familiar to an earlier generation of counsel, who would pick up his pen (sometimes for the first time) and require the favoured advocate to address him at dictation speed. But in practice, for reasons which Lord Justice Underhill has described, the possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for, as Lord Justice Underhill says, appearances matter. (emphasis added).

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