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Compliance Not Optional: Crown Not Immune from Copyright Act

Posted in Case Comments, Intellectual Property, Media
Helen Richards

Is the Crown immune from paying tariffs under the Copyright Act? On March 31, 2004 and March 31, 2009, the Canadian Copyright Licensing Agency, operating as Access Copyright, filed proposed tariffs claiming royalties for the reproduction of published works by employees of the provincial and territorial governments other than Quebec. The provinces and territories objected to the tariffs and, as a preliminary matter, challenged the ability of the Copyright Board of Canada to consider the proposed tariffs claiming they were immune from the Copyright Act. The Board dismissed this challenge on January 5, 2012, and some of the Applicants sought judicial review of the Board’s decision.

The Federal Court of Appeal Decision

The Applicants sought a declaration that the Crown is immune from the Copyright Act in its entirety on the basis of section 17 of the Interpretation Act, which states:

17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

The Federal Court of Appeal dismissed their application.

Citing Oldman River, the Court held that the Board had applied the appropriate three prong test to determine whether the Crown is immune from a particular statute pursuant to section 17 of the Interpretation Act:

Thus, once the Board acknowledged in its analysis that there is no section stating clearly that “this Act shall bind her Majesty” (first prong of the exception), it had to consider, through a purposive and contextual statutory analysis, whether it could discern a clear parliamentary intention to bind the Crown (second prong of the exception). Only if it were unable to find such a clear intention would it have to proceed to the next step of determining whether the third prong of the exception provided for in relation to section 17 applies (frustration or absurdity).

Having recognized that there was no expressly binding words in the Act, and thus that the first prong of the test did not apply, the Court went on to consider whether there was a clear intention to bind the Crown, revealed through a contextual interpretation of the statute. The Court reviewed the objectives of the Act and considered various provisions of the Act that expressly refer to the Crown. It determined that the second prong of the test was satisfied because the Court was “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.” Therefore, the Court held that the Act applies to the Crown.

Potential Significance

As a result of this decision, the Crown, who used to allegedly comply “voluntarily”, is now clearly subject to the Act. More generally, this judgment is interesting as it arguably broadens the exception to the presumption of Crown immunity.

Case Information

The Governments of the Provinces of Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Saskatchewan v. The Canadian Copyright Licensing Agency, 2013 FCA 91 (CanLII)

Docket: A-119-12

Date of Decision: April 3, 2013