The Crown, the Copyright, and the Law

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Citation for this paper:

Nayyer, K. (May 2018). The Crown, the Copyright, and the Law. [PowerPoint presentation].

UVicSPACE: Research & Learning Repository

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Faculty of Law

Faculty Publications

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The Crown, the Copyright, and the Law Kim Nayyer

May 2018

This PowerPoint was originally presented at CALL/ACBD 2018 Conference –

Canadian Association of Law Libraries, Halifax NS. https://www.callacbd.ca/event-2574534

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The Crown, the Copyright, and the Law

Kim Nayyer University of Victoria May 2018 CALL/ACBD 2018, Halifax ©Kim Nayyer CC BY-NC-SA

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Ingest with caution; thoughts welcome

• These are thoughts I’ve researched, discussed with others, and thought way too much about • I’m continuing to explore these ideas

• This isn’t a legal opinion!

I thank these people, but errors in logic etc are mine: • Professor Bob Howell, UVic

• Daniel Hoadley, ICLR • Corynne McSherry, EFF

• Xavier Beauchamp-Tremblay, CanLII

• Ken Fox, CALL/ACBD Copyright Committee • Amanda Wakaruk, UAlberta

©Kim Nayyer CC BY-NC-SA

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Proposition:

Crown copyright should not apply to primary law

This conceivably is the correct

interpretation now in respect of case law

Now is the time to acknowledge that primary law is in the public domain

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Outline

• a quick look at s 12: what does it say

• a bit about the origin of the Copyright Act and the Royal Prerogative

• another look at s 12 in light of other provisions in the Act

–some statutory interpretation here: defined words, organization of Act, language, what’s not said

• a look at some case law and interesting word choices

• then a look at some other countries and the way things have evolved

• and a return to the proposition—it’s time

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s 12

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Context of s 12—it’s about term

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Look at Interpretation section (s 2)

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Look at s 5 to see where copyright

subsists

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Look at Interpretation section (s 2)

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Look at Interpretation section (s 2)

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s 12

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s 12

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s 12

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Royal Prerogative re primary law—

modern utility?

•Far predates any kind of copyright legislation •Seems to refer to the printing prerogative, one of the privileges of the King

–Millar v. Taylor (1769) 4 Burr. 2303

–Stationers v. Patentees re the printing of Rolls Abridgment (1661) Carter 89, 124 ER 842

–Licensing of the Press Act 1662 (14 Car. II. c. 33)

•Even that discontinued when practice licensed to ICLR

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Royal Prerogative re primary law—

modern utility?

•Era of court reporter recording a summary was said by the judges

•Own words

•Private reporting rather than issued by court itself

•Right to print held by reporter

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Statute of Anne

1710

Modern copyright’s statutory basis is the Statute of Anne 1710

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Statute of Anne 1710

•Long title:

"An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the

Authors or Purchasers of Copies, during the Times therein mentioned”

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Statute of Anne 1710

•Preamble:

Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be

Printed, Reprinted, and Published Books, and

other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the

Encouragement of Learned Men to Compose and Write useful Books; May it please Your Majesty, that it may be Enacted ...

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s 89

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Case law:

CCH Canadian Ltd v LSUC, 2004 SCC 13

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Case law:

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Case law:

CCH Canadian Ltd v LSUC, 2004 SCC 13 para 33

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Case law:

CCH Canadian Ltd v LSUC, 2004 SCC 13 para 35

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Other countries:

UK 1911 statute

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UK 1988 statute

•Removed reference to the Royal

Prerogative or reservation of Crown rights •But explicitly brought legislation within statutory copyright coverage

•However, a long period in place of indefinite duration

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http://www.nzlii.org/nz/legis/consol_act/ca1994133/

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It’s time:

Prerogative powers over primary law were about Crown control and are outdated

Concerns about integrity and authenticity version can be addressed technologically

Copyright-free primary law promotes access to justice and creative ventures

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Proposition:

Crown copyright should not apply to primary law

This conceivably is the correct

interpretation now in respect of case law

Now is the time to acknowledge that primary law is in the public domain

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The Crown, the Copyright, and the Law

The Crown, the Copyright, and the Law

Ingest with caution; thoughts welcome

Proposition:

Outline

s 12

Context of s 12—it’s about term

Look at Interpretation section (s 2)

Look at s 5 to see where copyright

subsists

Look at Interpretation section (s 2)

Look at Interpretation section (s 2)

s 12

s 12

s 12

Royal Prerogative re primary law—

modern utility?

Royal Prerogative re primary law—

modern utility?

Statute of Anne

1710

Statute of Anne 1710

Statute of Anne 1710

s 89

Other countries:

UK 1911 statute

UK 1988 statute

It’s time:

Proposition:

Thank you!

Questions?