Commons:Canadian Crown Prerogative Copyright

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The goal of this advisory essay is to outline the legal principles at play regarding images under Canadian crown copyright, and how they interact with Commons official policies and guidelines. As contributors are not expected to be legal experts, this guide has been created to provide a solid overview and understanding of the legal concepts at play without having to invest a great deal of time conducting the necessary legal research themselves.

The following is an overview of Canadian crown copyright, the use of prerogative, and how it applies to certain works hosted on Commons. More specifically, it shows that works under Canadian crown copyright may be protected under the Copyright Act for a term in excess of the normal 50 year time period. In addition, any derivatives of these works are similarly protected, even if these derivatives contain elements original to the author and are published in a different media (such as an SVG rendering). In addition to the fact that works protected under Canadian copyright are generally protected in the United States due to the Berne Convetion, Commons Official Policy necessitates that works need to be in the public domain in both the United States and the originating country in order to be hosted on Commons. The following sections have been broken up by topic, and show the relevant primary sources and their explanatory secondary sources. Portions from the sourced quotes have been highlighted for ease of use.

Term of Crown Copyright Protection

Unless otherwise specified, any copyrightable work created or produced by an organisation or person employed or under contract to the Crown (Canadian state), is subject to Crown copyright. Canadian Crown copyright usually subsides 50 years after the year a work is published. However, this term is established in Canadian copyright law notwithstanding the rights or privileges of the Crown (state). In this way, in certain rare cases, Canadian Crown copyright may be maintained beyond the normal 50 year term under prerogative copyright.

Primary Sources

The Copyright Act states that Crown copyright expires after 50 years, however the notwithstanding clause at the outset of Section 12 within the legislation is made in recognition of what is known within Canadian constitutional law as Royal or Crown prerogative.

The Berne Convention, which is not law itself but is legislated in Canadian law through the Copyright Act, supports the use of copyright terms beyond 50 years through Section 7 of the Convention which states that specific terms are a matter of local legislation.

The Copyright Act and the Interpretation Act (Canada)

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 and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.

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 Berne Convention

From Section 7 of the Convention:

"(6) The countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs."

"(8) In any case, the term shall be governed by the legislation of the country where protection is claimed"

Secondary Sources

Normally, copyright in Canada "exists for the life of the author/creator, the remainder of the calendar year in which he is deceased, plus fifty years after the end of that calendar year". For crown copyright however, there is a slight difference.

Crown copyright is sometimes thought of as a single idea encompassed by a single statutory section in the Copyright Act, but it is more accurately conceptualized as having three general sources: 1) section 12’s substantive provision; 2) the historic royal prerogative referred to in the introductory clause to section 12 which predates statutory copyright provisions and is of perpetual duration; and 3) general copyright provisions in the Copyright Act, including such provisions as the ownership rules governing copyright of works by employees.

The royal prerogative is not a type of copyright right but more properly a property right, or a prerogative right, granting a monopoly in printing of perpetual duration. It is not subject to the usual statutory copyright term. The royal prerogative is referenced at the start of section 12 of the Copyright Act - the section is "without prejudice to any rights or privileges of the Crown".

In this way, "work produced by government departments, whether published or unpublished, may be protected either permanently or at the whim of the Crown". Subsequently, Crown copyright can be, in certain cases, "said to be perpetual...and not to lapse through non-use or non-assertion", and that a "right to certain works by prerogative amounts to a perpetual term of copyright protection".

The prerogative right of the Crown to the exclusive printing of Acts of Parliament, Orders in Council, state papers, and other public documents is well established. The Crown prerogative, unlike rights under the Act, continues in perpetuity and is not limited to the term specified in the Act ... Crown immunity is a part of the Crown prerogative. It is presumed that the crown is not bound by statutory law unless states otherwise. This has been incorporated into the Federal Interpretation Act which states that 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.

[50] When undertaking this inquiry, the following facts should be kept in mind. First, section 12 grants Her Majesty rights in works prepared or published by or under her direction or control...Second, the rights granted in section 12 generally limit the protection to 50 years following the first publication of the work whereas it is arguable that Crown copyright under the Crown prerogative is perpetual. Put another way, Crown copyright under the Crown prerogative is wider in scope and duration than what section 12 provides.

"The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author's death, but parties are free to provide longer terms".

Crown Prerogative Copyright and Copyright Terms

As can be seen above, under the Copyright Act any time a work is created by or under the direction of the Government of Canada (Crown), Crown Copyright automatically applies. Crown prerogative copyright however, is fairly limited in terms of copyright and images hosted on Commons. From the following sources, it can be seen that the Royal Prerogative is used whenever arms, flags, or badges are granted to a crown organisation or agency, or whenever the physical crown itself is depicted in any official state symbols:

"Crown copyright is described in section 12 of the Copyright Act...Crown 'prerogative' describes certain powers, rights, immunitites and privileges necessary to the maintenance of government...It is known, however, that this exclusive right to certain works by prerogative amounts to a perpetual term of copyright protection".

Only a few prerogative powers are exercised personally by the Queen or her representatives. While there is no conclusive list of Royal Prerogative powers, it is generally accepted that, in Canada, these powers include: ... grants of coats of arms, flags and heraldry (the Canadian Heraldic Authority) [and] use of the Crown in symbols and of the title “Royal” for organizations".

A grant of Arms is an honour from the Crown and an exercise of the Royal Prerogative. In Canada, this is overseen by the Canadian Heraldic Authority, a part of the Office of the Governor General...The use of the two Royal Crowns was approved personally by The Queen (“Approved Elizabeth R”)...Permission to include the Crowns, [is] an act of grace by the Sovereign...

Gradually, monarchs took control of the official granting and use of coats of arms, which allowed them to honour people and groups. Coats of arms thus developed as grants of honour received from a sovereign exercising his or her personal prerogative.

By 1988, a Canadian Heraldic Authority was created in the office of the governor general to exercise the royal prerogative of granting coats of arms, badges, and flags, which had previously been exercised through the heralds in England and Scotland.

The granting of armorial bearings or coats of arms is the prerogative of the Sovereign. In Canada, the exercise of this prerogative now rests with the Governor General, who has established the Canadian Heraldic Authority at Government House to administer this responsibility.

The common law has determined the contents of the Crown prerogative. It is now possible to propose a current non-exhaustive contents list: a. Foreign affairs, b. War and peace, c. Treaty-making, d. Other acts of state in matters of foreign affairs, and e. Defence and the armed forces. Other powers and privileges considered Crown prerogatives include those respecting passports, power of mercy, diplomatic appointments, public inquires, hiring and dismissal of public servants, administration and disposal of public lands, copyright, armorial bearings, and honours and titles.

And from the above secondary sources: "The royal prerogative ... a prerogative right, granting a monopoly in printing of perpetual duration. It is not subject to the usual statutory copyright term. The royal prerogative is referenced at the start of section 12 of the Copyright Act", and "a right to certain works by prerogative amounts to a perpetual term of copyright protection".

Original and Derivative Works

According to Canadian and U.S. copyright law, a derivative work is any work which adapts, reproduces, modifies or transforms an original work (or any part of an original work), in any form. In order for a work to be recognised as a derivative, and not simply a copy, it must have a significant original addition that is original to the author (i.e. original elements within the work, not copied from other works). For example, tracing or otherwise copying a two-dimensional work into a SVG file would be considered to be a copy, whereas an author drawing his own version of a work, regardless of media, would be considered a derivative. However, ideas or concepts always remain within the public domain. Subsequently, if an author were to use a very generalized description of an artistic work (such as a blazon), without any reference to the original drawing, then the new drawing would not be considered a derivative work, but a new and original work in itself.

Primary Sources

The Copyright Act (Canada)

3. (1) For the purposes of this Act, "copyright", in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof".

United States Copyright Law

"§ 101 . Definitions...A 'derivative work' is a work based upon one or more preexisting works, such as a[n] ... art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a 'derivative work'".

"§ 106 . Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; ..."

Secondary Sources

The plain meaning of the word "original" suggests at least some intellectual effort, as is necessarily involved in the exercise of skill and judgment. The Concise Oxford Dictionary (7th ed. 1982), at p. 720, defines "original" as follows: "a. existing from the first, primitive, innate, initial, earliest; . . . 2. that has served as pattern, of which copy or translation has been made, not derivative or dependant, first-hand, not imitative, novel in character or style, inventive, creative, thinking or acting for oneself". "Original"'s plain meaning implies not just that something is not a copy...an "original" work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original.

"In Canada, the adaptation right is defined according to the English method...A 'derivative work' is a work based on a previous work that has a significant original addition"..."As to the adaptation right, currently it is stipulated in Article 12 of the Berne Convention that: '[a]uthors of literary or artistic works shall enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works"

"The term 'drawing' is very broad and presumably would include any two-dimensional work in which shapes are depicted by lines...Copyright in artistic works does not extend to ideas, conceptions or methods, but is confined to their expression in material form...Copyright in an artistic work means the sole right to: a) produce or reproduce the work or any substantial part of the work in any material form whatever; b) if unpublished, to publish the work or any substantial part of it".

"Similarly, although the Canadian Act does not expressly provide the owner of the copyright in an artistic work with a general right to produce derivative works based on it, the language in subsection 3(1) - 'to reproduce the work or any substantial part thereof in any material from whatever' - is wide enough to encompass such a right. In King Features Syndicate Inc. v. O.M. Kleemann Ltd., for example, the House of Lords held that the copyright in the cartoon strip 'Popeye the Sailor' was infringed by the manufacture and sale of objects in three dimensions - in that case, brooches, charms and plastic dolls. The conclusion that a three-dimensional object can substantially reproduce a two-dimensional work means that, in effect, the owner of the copyright in an artistic work will have the exclusive right to make certain derivative works in different media based on his work."

"Derivative Work means a work that produces or reproduces the Work or any substantial part thereof in any material form ... If you Use the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give credit...in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., 'French translation of the Work by Original Author,' or 'Screenplay based on original Work by Original Author'). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit."

"In short, all transfers of a creative, copyrightable work into a new medium count as derivative works", and "all other modifications whose outcome is a new, creatively original work"..."As opposed to an exact copy or minor variation of a work (e.g. the same book with a different title), which does not create a new copyright, a derivative work creates a new copyright on all original aspects of the new version"..."By taking a picture with a copyrighted cartoon character on a t-shirt as its main subject, for example, the photographer creates a new, copyrighted work (the photograph), but the rights of the cartoon character's creator still affect the resulting photograph. Such a photograph could not be published without the consent of both copyright holders: the photographer and the cartoonist. It doesn't matter if a drawing of a copyrighted character's likeness is created entirely by the uploader without any other reference than the uploader's memory. A non-free copyrighted work simply cannot be rendered free without the consent of the copyright holder, not by photographing, drawing nor sculpting".

"In order for a work to be considered original in Canada it must be original to its author, not copied from another work, and requires more than trivial or mechanical intellectual effort."

"A derivative work is something that is 'based on or derived from' another work."

"...do not upload works derived from other copyrighted works onto Commons, or they will be deleted".

Application of the Berne Convention in Canadian Copyright Law

The Berne Convention, while the primary document governing international copyright, is not in itself copyright law. It is up to each individual signatory to amend or adopt its own legislation to conform to the minimum standards set out in the convention, and up to each country on how they wish to implement their interpretation of it.

"The phrase in Berne Article 2(3)...opens a significant ambiguity about the legal status of a derivative work created without permission from the copyright owner of the underlying work. It is clear, as the WIPO Guide to the Berne Convention observes, that unless the underlying work is in the public domain, the author's consent is needed to translate, adapt, arrange, or otherwise alter the work".

"The Berne Convention is the primary legislative document governing international copyright. Signatory states agree to amend their legislations to meet the minimum requirements of this convention, but the convention itself is not law. Signatory countries have the right to "opt out" from a few of its paragraphs (most are mandatory and non-negotiable, though), and how any particular country implements the Berne Convention is a question of local legislation."

"The adhesion of Canada to the Berne Convention as a full member of its own (rather than as a British dominion) was problematic in view of the serious disharmony between the Canadian requirements of registration for copyright protection and the liberal principle entrenched in Article 4 of the Berne Convention under which the enjoyment and the exercise of the rights of the authors shall not be subject to the performance of any formality. For Canada to accede to the Berne Convention, it was therefore necessary to modify its copyright legislation and, hence, the Copyright Act...was adopted."

Miscellaneous

Commons Policy

Public domain content: Content that is in the public domain is welcome! It is important however that you confirm the public domain status of the content under the law of the United States of America as well as the laws of any other countries as required by the specific Project edition. When you contribute content that is in the public domain, you warrant that the material is actually in the public domain, and you agree to label it appropriately.

Commons is an international project, but its servers are located in the U.S., and its content should be maximally reusable. Uploads of non-U.S. works are normally allowed only if the work is either in the public domain or covered by a valid free license in both the U.S. and the country of origin of the work. The "country of origin" of a work is generally the country where the work was first published.

When uploading material from a country outside the U.S., the copyright laws of that country and the U.S. normally apply. If material that has been saved from a third-party website is uploaded to Commons, the copyright laws of the U.S., the country of residence of the uploader, and the country of location of the web servers of the website apply. Thus, any licence to use the material should apply in all relevant jurisdictions; if the material is in the public domain, it must normally be in the public domain in all these jurisdictions (plus in the country of origin of the work) for it to be allowable on Commons.

Almost all countries in the world are party to the Berne Convention for the Protection of Literary and Artistic Works ... Following this convention, countries enforce copyrights from other countries, according to certain rules. One consequence of these rules is that we should always care about the laws of the country of origin of the work.

Administration of Crown Copyright

As of November 18, 2013, Crown Copyright and Licensing is no longer centrally administered. For specific Crown copyright information, the department or agency that created the information must be contacted. This has resulted in varied approaches by different organisations, where "the non-commercial licence has disappeared from the Public Works and Government Services site and it is unclear whether it remains active", and where "some departments have denied permission or asserted crown copyright to take down content."

Copyright in works prepared by, or under, the direction and control of the Government of Canada is owned by the Crown, and can be transferred in accordance with the provisions of the Surplus Crown Assets Act or under Order in Council. Government of Canada employees do not have the legal authority to transfer Crown copyright. Some departments, and even individual employees, have entered into agreements transferring ownership in copyright in works created during the course of their employment with the Government of Canada. These agreements are invalid. Government employees cannot transfer ownership in what they do not own, and any government department that wants to transfer ownership in a Crown work must act in accordance with the provisions of the Surplus Crown Assets Act as well as the Treasury Board of Canada Secretariat’s policy titled “Disposal of Surplus Moveable Crown Assets”, or by an Order-in-Council.

Unpublished Crown Works

Crown copyright not involving Crown prerogative lasts for 50 years following the end of the calendar year the work was published. However, for unpublished Crown works copyright is perpetual.

"An unpublished government/Crown work retains copyright in perpetuity".

"Crown works that are unpublished remain protected under copyright law in perpetuity."

What is "Official Publication"?

Publication, according to the Copyright Act, means:

"2.2 (1) For the purposes of this Act, “publication” means

(a) in relation to works,

(i) making copies of a work available to the public,

(ii) the construction of an architectural work, and

(iii) the incorporation of an artistic work into an architectural work, and

(b) in relation to sound recordings, making copies of a sound recording available to the public,

but does not include

(c) the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording, or

(d) the exhibition in public of an artistic work.

(2) For the purpose of subsection (1), the issue of photographs and engravings of sculptures and architectural works is not deemed to be publication of those works.

(3) For the purposes of this Act, other than in respect of infringement of copyright, a work or other subject-matter is not deemed to be published or performed in public or communicated to the public by telecommunication if that act is done without the consent of the owner of the copyright".

And where "Copyright in works prepared by, or under, the direction and control of the Government of Canada is owned by the Crown, and can be transferred in accordance with the provisions of the Surplus Crown Assets Act or under Order in Council. Government of Canada employees do not have the legal authority to transfer Crown copyright".

Does posting something only online constitute publication, exhibition in public, or communication to the public?

[112] As for the [litigant's] argument that this may render publication technologically non-neutral, works distributed only by making them available for download on the Internet would not be considered as published, whether this is the inescapable conclusion about the meaning of s. 2.2(1) remains to be seen in a case where the issue arises. Indeed, there is some authority suggesting that "[w]ork available online or sitting in a public database may therefore be considered ‘published’", and this notwithstanding the fact that a work conveyed over the Internet constitutes a communication to the public by telecommunication (Vaver, at pp. 157 and 172-73).

See Also

• Wikipedia - Canadian Crown Prerogative Copyright