Federal Court of Appeal Decides in Favour of Writers and Publishers in “Crown Immunity” Decision

Via Access Copyright

On April 3, 2013, the Federal Court of Appeal released its decision on the “Crown immunity” argument raised by the objectors in the Provincial and Territorial Governments Tariff. The decision was in Access Copyright’s favour.

While this legal process may seem a distant one for affiliates and members, it’s important to know that it’s a positive turn of events-especially given the pressures writing and publishing is facing in Canada with regard to the overly broad and damaging interpretations of fair dealing of some of our educational institutions.

More about the Decision

At a very high level, “Crown immunity” is a legal concept which states that governments cannot commit legal wrongs and are therefore immune from lawsuits.

The argument that was advanced by the provinces and territories in the Provincial Tariff was that, since a government cannot commit legal wrongs, they are immune from the Copyright Act, and therefore have no obligation, ever, to pay royalties or seek authorization for the copying of copyright-protected works.

For a number of reasons, over a year ago the Copyright Board found that the Crown was bound by the Copyright Act. The Objectors in the tariff applied to the Federal Court of Appeal to judicially review this decision. The Court dismissed this appeal on Wednesday.

Why was it dismissed? The main reason is that the Copyright Act contains a number of detailed exceptions which exempt governments from claims of copyright infringement (schools, Library and Archives Canada, etc). If the Crown was immune from the Copyright Act, the Court said there would be no need for those exceptions. Therefore, governments are bound by the Copyright Act and the provinces and territories will have to pay the tariff once it is certified.

Further Reading and Next Steps

If you are interested in reading the full Court decision, it is available here: http://decisions.fca-caf.gc.ca/en/2013/2013fca91/2013fca91.html.

The provinces have 60 days to decide whether they would like to seek leave to appeal to the Supreme Court.






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