Chapter 19

Crown Copyright and Copyright Reform in Canada
Elizabeth F. Judge 

This chapter seeks to call attention to Crown copyright, an area that is not included on the current copyright reform agenda but is slated for review as a “medium-term” issue. It recommends that Canada should engage in a comprehensive review of Crown copyright in the short term and suggests changes to the Crown copyright system. Crown copyright, or government copyright, refers generally to copyright in materials produced by the government. The tension with Crown copyright has been between, on the one hand, the acknowledged need to provide wide access to government information, particularly laws, in a free and democratic society and, on the other hand, the inclination to exercise government control over the printing of government materials. Canada’s conclusion thus far has been that Crown copyright must be retained in order to ensure accuracy and integrity of government materials. The exercise of Crown copyright is sometimes combined with permissive licensing to reproduce materials, as is the situation with federal law. 

In support of the joint objective of review and reform, this chapter provides a summary of other jurisdictions’ approaches to government ownership of government-produced works. The chapter recommends that Crown copyright in Canada should not apply to public legal information because those works are produced with the obligation to make them available for the purposes of public access and notice of the law. Accuracy and integrity of those materials are important objectives, and copyright may have been an appropriate legal mechanism at one time to achieve those ends; however, other legal and technological mechanisms are better suited now to ensure accuracy and integrity, while at the same time facilitating the public’s access to those materials. The chapter also recommends that the royal prerogative should be eliminated so that the scope of Crown copyright is clearly ascertainable from the statutory provisions. 

With respect to government-produced works other than public legal information, the article recommends that the Crown copyright statute should be re-drafted to clarify (and narrow) the category of works to which it applies and to specify reciprocal obligations by government to publish these materials in publicly-accessible formats and media using appropriate updated technologies. These recommendations comply with international copyright obligations and are consistent with other jurisdictions’ approaches and with movements to facilitate public access. 


About the Author: 

Elizabeth F. Judge, Ph.D., is an assistant professor at the University of Ottawa, Faculty of Law, Common Law Section, where she specializes in intellectual property and privacy law and is a member of the law and technology group. She holds a Bachelor of Arts from Brown University, a Juris Doctorate from Harvard Law School, a Master of Arts from the University of Toronto, and a Master of Laws and a Doctor of Philosophy in English Literature from Dalhousie University. She served as a law clerk to the Honourable Mr. Justice Ian Binnie at the Supreme Court of Canada. Professor Judge is co-author with Daniel Gervais of Intellectual Property: The Law in Canada and several publications on law and literature. She is Editor-in-Chief and Faculty Advisor for the University of Ottawa Law & Technology Journal and Associate Editor of the Canadian Patent Reporter. Professor Judge is a member of the Law Society of Upper Canada and is admitted to the Bars of the State of California and the District of Columbia.