CCCT Court Web Site Guidelines – Some Complexities Underlying Court Web Sites – Copyright & Licensing

About a year ago, I announced the creation of a Canadian Centre for Court Technology (CCCT) “IntellAction” working group with the mandate to promote the modernization of court web sites in Canada by way of producing guidelines on topic. We have now finished our first draft and invite you to take a look, in upcoming weeks, to selected parts of the guidelines. Your comments and suggestions are welcome!

The complete guidelines are divided in 5 parts:

• Context – It’s a Brave New World: Features & Characteristics of Modern, Forward-Looking and Interactive Web Sites
• Issues – Some Complexities Underlying Court Web Sites
• Principles – Cutting Through Context and Issues: What Principles Should Guide the Design of Court Web Sites?
• Guidelines – Applying Principles to Design: What You Need to Know
• Tools – Resources to Assist You in Following the Guidelines

The principles have been presented on slaw last summer (post 1, post 2, post 3 and post 4).

Next, we wish to present to you, in the next series of posts, the following issues in relation to court web sites:

• Facilitating the Flow of Information: Licensing Information Found on Court Web Sites
• Balancing Privacy and Public Access to Court Information: The Need for Confidentiality Rules
• The Administrative Control of Court Web Sites: A Sensitive Issue

This post is about the first issue: Facilitating the flow of information and licensing information found on court web sites. The following text is our draft on topic.

The information published on a court web site may come from a variety of authors: judges, court staff (e.g. employees of courts administration), the justice department/ministry, public servants, lawyers (e.g. if factums are available on the court web site), etc. Unless a clear copyright and licensing policy is published on the court web site, it may be difficult for users to ascertain the copyright or licensing status of the various types of information. For example, to whom does the copyright of judicial decisions belong? Can those decisions be re-used in a commercial context, or not?

The CCCT recommends that each court web site displays a link in its footer, or other readily accessible place, pointing to a Copyright & Licensing Information page. This page should explain to users of the web site:

• what is the copyright status of each type of information found on the site
• what is the licensing status of each type of information found on the site
• practical examples of what can be done, and not done with the information subject to copyright and licensing terms

The copyright of information produced by or under the direction and control of the Crown is governed by the Copyright Act, c. C-42, s. 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 (…)

According to s. 12, above, information produced by public servants is subject to Crown copyright. The executive branch in each Canadian jurisdiction (provinces, territories, federal) is free to enact its own copyright and licensing policy in relation to the work product of its public servants, and so does in a variety of ways, some more permissive than others (see Noel Cox, “Copyright in Statutes, Regulations, and Judicial Decisions in Common Law Jurisdictions: Public Ownership or Commercial Enterprise?” Statute Law Review, 27(3), 185 at pp. 193ff).

When it comes to judicial decisions, it is not clear if copyright in “works” produced by the Courts vests in the Crown by operation of s. 12, because the wording of s. 12 relates to works “prepared or published by or under the direction or control of Her Majesty or any government department”. On the other hand, one might ask, if it does not vest in the Crown, who owns copyright in judicial decisions? Unlike the United States, Canada does not have a legislative and case law basis confirming that judicial decisions are in the public domain, so copyright does attach to judicial decisions in Canada.

In any event, this issue appears to have been settled by the Reproduction of Federal Law Order, SI/97-5, P.C. 1996-1995 (19 Dec 1996):

Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.

Whether this order is ultra vires of the executive branch (in relation to judicial decisions and reasons for decisions) is beyond the scope of these guidelines. These guidelines assume that courts have no difficulty with the substance of this order in relation to judicial decisions.

In short, there are three types of information likely to be found on court web sites, and corresponding copyright & licensing frameworks:

• Judicial decisions. According to the Reproduction of Federal Law Order, quoted above, a license attaches to judicial decisions allowing their reproduction and re-use provided that (a) their integrity is maintained; and (b) they are not represented as an official version.
• Information authored by public servants (Justice department/ministries, courts administration, etc.). The copyright & licensing policy of the applicable jurisdiction applies (federal, provincial or territorial). In some cases, for example at the federal level, a decision can be sought to attach a license to Crown-copyrighted materials (from the Public Works & Government Services Canada – PW&GSC – Copyright & Licensing Office).
• Information authored by third parties (e.g. litigants and their counsel). Court documents provided by third parties that are part of a court case, not subject to a publication ban and available on a court web site (e.g. factums) could not be subject to an inferred license because one cannot infer a license when copyright attaches. There may be an inferred right for the Court to publish such information on a court web site, but that right does not extend to users of the web site.