Crown bound by Copyright Act: Manitoba v Access Copyright

April 5th, 2013 by Barry Sookman Leave a reply »

The Federal Court of Appeal ruled this week that the Crown is bound by the Copyright Act. In Manitoba v. Canadian Copyright Licensing Agency (Access Copyright), 2013 FCA 91 the Court made it clear that the structure of the Act, its legislative history and evolution all lead to this conclusion:

Having carefully examined the wording of section 12 in its overall context, including the structure of the Act, its legislative history and evolution, and other provisions, such as section 89, I agree with the Board that the words “[w]ithout prejudice to any right or privilege of the Crown” set out in section 12 are intended to refer to and preserve the Crown’s rights and privileges of the same general nature as copyright that may not fall within the meaning of the rest of this provision. These rights and privileges could otherwise be excluded by the general principle set out in section 89 which provides that no person is entitled to copyright otherwise than under and in accordance with the Act or any other Act of Parliament…

In my view, the references in the Act to very strict conditions, to tariffs fixed by the Board, to the consent of the copyright owners, and to the power of the court when the defendant is an “educational institution”, including a federal or provincial government department, all point to only one logical and plausible conclusion as to the intent of Parliament: the Crown is bound.
I have considered that the Act, unlike other statutes such as the Patent Act, R.S.C., 1985, c. P-4, s.2.1, does not contain an “expressly binding” clause at the beginning, as was recommended in the 1985 report entitled A Charter of Rights for Creators. I am still irresistibly drawn to the conclusion that Parliament clearly intended to bind the federal and provincial Crowns by the express language of the Act and through logical inference.

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