Date:
20130403
Docket:
A-119-12
Citation: 2013 FCA 91
CORAM: SHARLOW
J.A.
GAUTHIER J.A.
MAINVILLE
J.A.
BETWEEN:
THE GOVERNMENTS OF THE PROVINCES
OF MANITOBA,
NEW BRUNSWICK, NOVA SCOTIA, PRINCE EDWARD ISLAND,
AND SASKATCHEWAN
Applicants
and
THE CANADIAN COPYRIGHT LICENSING
AGENCY
Operating as "ACCESS
COPYRIGHT"
Respondent
REASONS
FOR JUDGMENT
GAUTHIER
J.A.
[1]
The
governments of the Provinces of Manitoba, New Brunswick, Nova Scotia, Prince
Edward Island and Saskatchewan (the Applicants) seek judicial review of the
decision of Copyright Board of Canada (the Board) dismissing their objection
that the Board has no jurisdiction to establish a tariff that would apply to them
in respect of the reprographic reproduction of copyrighted works in the
repertoire of the Canadian Copyright Licensing Agency, operating as “Access
Copyright” (Access).
[2]
Before
the Board, the Applicants and a number of other provinces and territories who
are not parties to this application argued that by virtue of section 17 of the
Interpretation Act, R.S.C. 1985, c. I-21, they are entirely immune from the
Copyright Act, R.S.C. 1985, c. C-42 (the Act) and therefore would
not be subject to the proposed tariffs for the years 2005-2009 and 2010-2014
filed by Access for certification by the Board pursuant to section 70.15(1) of
the Act. Section 17 of the Interpretation Act reads as follows:
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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.
|
17. Sauf
indication contraire y figurant, nul texte ne lie Sa Majesté ni n’a d’effet
sur ses droits et prérogatives.
|
[3]
The
Board concluded that the Act, construed contextually, is intended to
bind the Crown, and on that basis rejected the Applicants’ claim of Crown
immunity.
[4]
The
Applicants challenge this finding. For the reasons that follow, I have
concluded that their application should be dismissed.
BACKGROUND
[5]
On
March 31, 2004 and March 31, 2009 Access filed with the Board proposed tariffs
relating to the reproduction of published works in its repertoire by employees
of all provincial and territorial governments (with the exception of Quebec). All these provinces and territories filed timely written objections with the
Board.
[6]
Further
to a joint request by all those concerned, the Board agreed to hear a
preliminary challenge to its statutory power under the Act to consider
the proposed tariffs. In the course of this challenge, the Applicants argued
that the presumption of Crown immunity applies and the Act does not bind
them.
[7]
The
Board released its decision dismissing this challenge on January 5, 2012, with
accompanying reasons on March 15, 2012 (Reasons). Since then, the Board has
proceeded to hear the parties’ representations on the merits, and the
Applicants have participated in the said hearing on a without prejudice basis.
[8]
As
mentioned, some of the original objectors before the Board have decided not to
challenge the decision under review. Also, Access did not seek the Board’s
approval for a tariff in respect of the federal government or the provinces of Ontario, British Columbia, and Quebec. Ontario, British Columbia and the federal government
have each made an agreement with Access. The province of Quebec has done the
same with the parallel collective societies in Quebec.
[9]
The
factual underpinning of the Applicants’ claim for Crown immunity is set out in
a jointly filed Statement of Agreed Facts.
[10]
At
this stage, it is worth noting that the Applicants have long standing policies
and practices whereby they abide by the provisions of the Act by seeking
authorization and paying royalties to copyright holders. They emphasize that
they intend to continue these practices, which they consider to be voluntary.
The Board’s
decision
[11]
First,
the Board rejected the argument of Access that the Applicants’ claim for Crown
immunity conflicts with the common law principle that there can be no
expropriation without just compensation. It held that the common law cannot
overcome the clear statutory language of section 17 of the Interpretation
Act. In its view, the fact that the Applicants would be prejudiced if the
proposed tariffs were approved and imposed on them is sufficient to entitle
them to assert their claim to Crown immunity.
[12]
Relying
in part on R. v. Eldorado Nuclear Ltd., [1983] 2 S.C.R. 551 (Eldorado),
the Board noted at paragraph 23 of the Reasons that section 17 of the Interpretation
Act creates a presumption that the Crown is not bound by any statute, but
that presumption is rebutted where it can be demonstrated that there exists a contrary intention to bind the Crown.
[13]
After
agreeing with the parties that “there are no expressly binding words which
establish that the Crown is bound by the Act” (paragraph 28 of the
Reasons), the Board proceeded with a contextual analysis of the Act, as
required by the modern rule of statutory interpretation, to determine whether
there are other provisions from which it might be inferred that the Crown is
intended to be bound by the Act.
[14]
The
Applicants relied on section 12 of the Act, which reads as follows:
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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.
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12. Sous réserve de tous les droits ou privilèges de la
Couronne, le droit d’auteur sur les œuvres préparées ou publiées par
l’entremise, sous la direction ou la surveillance de Sa Majesté ou d’un
ministère du gouvernement, appartient, sauf stipulation conclue avec
l’auteur, à Sa Majesté et, dans ce cas, il subsiste jusqu’à la fin de la
cinquantième année suivant celle de la première publication de l’œuvre.
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[15]
Section
12 appears in Part I of the Act, which defines the rights of copyright
holders. After carefully and thoroughly considering the legislative history and
evolution of section 12, the Board rejected the Applicants’ argument that
section 12 should be read as expressly providing for Crown immunity from the Act.
The Board’s analysis began with a recognition of the history of Crown copyright
under the Crown prerogative particularly its right to print and publish.
This right goes back hundreds of years, and includes the right to print and
publish statutes, court decisions, and authorized versions of the Bible, among
other things. The Board expressed the view that, “Crown copyright under the
Crown prerogative is wider in scope and duration than what section 12 provides”
(see paragraph 50 of the Reasons). It then reasoned that section 12 must be
read in context with section 89, which provides in part that “[n]o person is
entitled to copyrights otherwise than under and in accordance with this Act”.
In the absence of the opening phrase of section 12, section 89 would operate to
eliminate all remaining common law copyright held by the Crown. The Board
concluded that the words “without prejudice to any right or privilege of the
Crown” in section 12 of the Act are necessary to maintain that common
law Crown prerogative, and the scope of section 12 should be limited
accordingly.
[16]
The
Board noted that Parliament introduced an exception targeting an emanation of
the federal Crown in 1987, and added a large number of very specific exceptions
for both the federal and provincial Crowns in 1997 (see paragraph 66 of the
Reasons). Thus, apart from section 12, the Act contains a score or more
of exceptions that expressly benefit the Crown such as those that benefit the
Crown at large (for example, paragraph 45.1(b) and subsection 32.1(1); see
paragraph 60 of the Reasons), those that benefit educational institutions (for
example, subsection 29.4(2) and section 30.3; see paragraphs 61-63 of the
Reasons) and those that concern Library and Archives Canada (for example,
section 30.3; see paragraphs 64-65 of the Reasons).
[17]
The
Board then held at paragraph 66 of its Reasons:
The number and
the detailed nature of these exceptions seem to indicate a purposeful, explicit
intention on the part of Parliament to identify and circumscribe activities
that do not infringe copyright. If the Crown benefited from an overall immunity
from the Act, why would Parliament spend so much time and effort in
crafting these exceptions?
[18]
The
Board rejected the Applicants’ argument that these exceptions were adopted out
of an abundance of caution or as historical incidents, as in Alberta Government Telephones v. Canadian Radio-Television &
Telecommunications Commission, [1989] 2 S.C.R. 225 (AGT).
The Board distinguished AGT, where a single, somewhat unclear reference
to “government railways” could be explained away in this manner.
[19]
The
Board then drew upon R. v. Ouellette, [1980] 1 S.C.R. 568
(Ouellette), and concluded at paragraph 68 of the Reasons:
[…] when
analysing the whole of the Act contextually, we are irresistibly drawn
to a logical conclusion that the Act generally binds the Crown.
[20]
The
Board went on to consider the implications of a finding that the Crown is
immune from the Act. In its view, this would mean that the Board would
have to reject on its own motion any tariff filed in respect of any emanation
of the Crown, unless immunity had been waived. This would also mean that Crown
corporations such as Telefilm, the National Film Board, and the CBC could use
copyrighted works without regard to the rights of their authors or copyright
holders. This would leave a significant gap in the enforcement of copyright by
rights holders which, in the Board’s view, supports the logical implication
that the Crown must be bound (paragraph 73 of the Reasons).
[21]
The
Board added at paragraph 75 of the Reasons that the Act would make no
sense unless it bound the Crown, given the reach of government action in the
copyright market and the extent to which governments must rely on the Act
to enforce their own copyrights. That said, the Board noted that excluding the
Crown and its agents from the reach of the Act would not totally
frustrate the Act (See Friends of the Oldman River Society v. Canada
(Minister of Transport), [1992] 1 S.C.R. 3 (Oldman River)). This
finding should, however, be considered together with the Board’s statement at
paragraph 28 of the Reasons that “it will not be necessary to decide whether
there would be a resulting absurdity were the Crown not so bound”, given that
Parliament’s intention is revealed when the provisions are read in the context
of other provisions.
[22]
Having
so concluded, the Board stated that no further analysis would be required to
dismiss the preliminary objection. Nevertheless, given the importance of the
legal issues involved, the Board explained that it would be useful to comment
on whether in any event the Applicants had waived their immunity either in
relation to the totality of the provisions contained in the Act, or
alternatively, in relation to certain of its provisions.
[23]
The
Board considered the applicable legal principles set out in Sparling v. Québec (Caisse de dépôt & placement), [1988] 2 S.C.R. 1015 (Sparling), and then noted that
the conduct of the Applicants since the first adoption of the Act spoke
volumes. The Applicants’ behaviour, coupled with the fact that they have
enjoyed benefits under sections 3, 15, 18 and 21 of the Act and
exercised their rights in relation to a number of related provisions, showed
that they had waived Crown immunity (see paragraph 82 of the Reasons). This did
not mean that, in the future, the Applicants could not reclaim their immunity
if any, but that simply, at this stage, they could not do so.
THE
ISSUES
[24]
The
Applicants submit that the Board erred in law when it concluded that the Act
binds them by necessary implication. In that respect, they advance four main
points:
a.
the
Board misapplied AGT by failing to abide by the Supreme Court of
Canada’s direction that the necessary implication exception should be narrowly
confined (AGT at page 277);
b.
the
Board erred by finding that the presence of exceptions that benefit the Crown
necessarily imply that the Crown is bound by the Act;
c.
the
Board erred by reading words into section 12 of the Act in order to
restrict the introductory words of that section to a Crown prerogative relating
to the printing and publishing of works; and
d.
the
Board erred by considering the possible consequences of a finding that the
Crown is immune to the Act.
[25]
With
respect to the Board’s obiter that the Applicants had waived their
immunity, if indeed they were immune from the Act, the Applicants claim
that the Board misunderstood the test to be applied. They argue that the Board
failed to appreciate that there must be a sufficient nexus between the benefits
and the burdens involved to apply this doctrine. They advance that the Board
misapplied the said test to the facts of this matter, failing to appreciate
that the Applicants’ practice of voluntarily respecting the rights of copyright
holders was simply the result of the Crown trying to act as a good citizen, as
was found by the Ontario Court of Appeal in Collège d'arts
appliqués & de technologie La Cité collégiale v. Ottawa (City) (1998), 37 O.R. (3d) 737 (OCA) at paragraph 19. Given the conclusion I
have reached on the other grounds of appeal, I do not consider it necessary to
consider this issue, and I have not done so.
ANALYSIS
[26]
As
this application for judicial review concerns a question of law of general
application in respect of the Act, the standard of review is correctness
(Rogers v. Society of Composers, Authors and Music Publishers of Canada,
2012 SCC 35 at paragraphs 10 and 20).
[27]
Before
considering the issues, it is worth noting that, at the hearing, the Applicants
confirmed that they are not relying on any constitutional argument in this
case. They also confirmed that despite what appears in paragraph 69 of the
Board’s Reasons, they were and still are seeking a declaration that they are
immune from the Act as a whole, not only in respect of the proposed
tariffs in the current proceeding before the Board.
[28]
The
principles to be applied in determining whether the Crown is immune from a
particular statute on the basis of section 17 of the Interpretation Act
are now well established. In Oldman River, the most recent
pronouncement of the Supreme Court on this issue, Laforest J. summarized the
situation as follows, at pages 52-53:
However, any uncertainty in the law on these points was put
to rest by this Court's recent decision in Alberta Government Telephones,
supra. After reviewing the authorities, Dickson C.J. concluded, at p.
281:
In my view, in light of PWA [Her Majesty in right
of the Province of Alberta v. Canadian Transportation Commission, [1978] 1
S.C.R. 61] and Eldorado [supra], the scope of the words
"mentioned or referred to" must be given an interpretation
independent of the supplanted common law. However, the qualifications in Bombay [Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C.
58] are based on sound principles of interpretation which have not entirely
disappeared over time. It seems to me that the words "mentioned or
referred to" in s. 16 [now s. 17 of the Interpretation Act] are
capable of encompassing: (1) expressly binding words ("Her Majesty is
bound"); (2) a clear intention to bind which, in Bombay
terminology, "is manifest from the very terms of the statute", in
other words, an intention revealed when provisions are read in the context of
other textual provisions, as in Ouellette, supra; and, (3) an
intention to bind where the purpose of the statute would be "wholly
frustrated" if the government were not bound, or, in other words, if an
absurdity (as opposed to simply an undesirable result) were produced. These
three points should provide a guideline for when a statute has clearly conveyed
an intention to bind the Crown.
In my view, this
passage makes it abundantly clear that a contextual analysis of a statute may
reveal an intention to bind the Crown if one is irresistibly drawn to that
conclusion through logical inference.
[29]
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).
[30]
To
rebut the presumption in section 17 of the Interpretation Act, there
must be a clear parliamentary intention to bind the Crown, or, to use the words
of La Forest J. in Oldman River, one must be irresistibly drawn,
through logical inference, to the conclusion that there is an intention to bind
the Crown. The search for parliamentary intention must be undertaken though a
contextual interpretation of the statute. In my view, the Board understood this
and applied the proper approach when it undertook its task.
[31]
As
always, context matters. AGT did not change the law in Ouellette.
On the contrary, it confirmed it (see AGT at pages 279-280). Different
results occur when the courts interpret different statutes within their
different contexts. I do not agree with the applicants that the Board gave too
much weight to the exceptions targeting the Crown or its agents in this case.
[32]
I
turn now to a detailed consideration of the provisions of the Act which
are relevant to the issues in this case. I begin with the objectives of the Act
which were described in Reference re Broadcasting Act,
S.C. 1991 (Canada), 2012 SCC 68 at paragraph 36 as follows:
36 The Copyright
Act is concerned both with encouraging creativity and providing
reasonable access to the fruits of creative endeavour. These objectives are
furthered by a carefully balanced scheme that creates exclusive economic rights
for different categories of copyright owners in works or other protected
subject matter, typically in the nature of a statutory monopoly to prevent
anyone from exploiting the work in specified ways without the copyright owner's
consent. It also provides user rights such as fair dealing and specific exemptions
that enable the general public or specific classes of users to access protected
material under certain conditions. (See,
e.g., Théberge v. Galerie d'Art du Petit Champlain inc.,
2002 SCC 34, [2002] 2 S.C.R. 336, at paras. 11-12 and 30; Mattel,
Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772,
at para. 21; D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at pp. 34
and 56). …
[33]
Section
12 of the Act is an important part of the contextual analysis. As
mentioned above, it is found in Part I of the Act. Part I is entitled
“Copyright and Moral Rights in Works”. It deals with the rights attached to
copyrighted works, the owners, and the duration of said copyright. Part III of
the Act is entitled “Infringement of Copyright and Moral Rights and Exceptions
to Infringement”, and it is where one finds a score or more of exceptions that
quite explicitly relate or apply to the Crown (federal and provincial).
[34]
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.
[35]
I
turn now to the various exceptions or user rights set out in Part III in favour
of the Crown and its agents. However, a few preliminary comments are
appropriate.
[36]
First,
the Applicants appear to say that these exceptions should all be disregarded as
the Court should deduce the legislator’s intention from the first version of
the Act, adopted in 1921.
[37]
Like
the Board, I believe that section 17 must be applied to construe the Act as
it now stands. In fact, the Applicants included in Volume IV of their record
the most recent amendments to the Act, which came into force in June of
2012. These include a number of additional exceptions dealing with new
technologies, among other things, as well as detailed provisions in respect of
available remedies that, in my view, confirm Parliament’s intention as
expressed by the Board when construing the Act before them.
[38]
Second,
the Board noted that the parties felt that the parliamentary debates shed
little light on the meaning of section 12 or on the immunity issue per se.
However, I observe that the debates indicate that there was a strong opposition
to the large number of exceptions targeting the Crown or its agents included in
Bill C-32 which was adopted in 1997. These exceptions were seen to be an
unwarranted limitation of rights of copyright holders under the Act in
favour of governmental organizations (House of Commons Debates, (4 June
1997) at 3442-3443 (Mr. Louis Plamondon (Richelieu, BQ)), at 3460 (Mrs. Suzanne
Tremblay (Rimouski-Témiscouata, BQ), and at 3461-3462 (Mrs. Christiane Gagnon
(Québec, BQ)). There is no reference anywhere to the fact that these exceptions
did not really constitute a restriction on the rights of copyright holders
given that, in any event, the federal and provincial Crowns and their agents
were immune, and these provisions were included out of an abundance of
caution. This would certainly have quelled all protest. Instead, the
Parliamentary Secretary to the Deputy Prime Minister and the Minister of
Canadian Heritage responsible for the Bill stated early on that the exceptions
were proposed for reasons of public interest and that they responded to real
concerns (House of Commons Debates, (13 March 1997) at 9031 (Mr. Guy H.
Arseneault (Parliamentary Secretary to Deputy Prime Minister and Minister of
Canadian Heritage, Lib.)).
[39]
That
said, aside from the high number of exceptions noted by the Board, many are
very detailed. They are also subject to conditions which would be illogical in
the absence of a clear intent to otherwise bind the Crown. A few illustrations
will suffice to clarify what I mean here.
[40]
For
my first illustration I will use one of the exceptions dealing with educational
institutions. The definition of “educational institution” (at section 2 of the Act)
is particularly clear. It includes:
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“educational institution” means
…
(c) a department or agency of any
order of government, or any non-profit body, that controls or supervises
education or training referred to in paragraph (a) or (b),
or
|
«
établissement d’enseignement » :
[…]
c) ministère
ou organisme, quel que soit l’ordre de gouvernement, ou entité sans but
lucratif qui exerce une autorité sur l’enseignement et la formation visés aux
alinéas a) et b);
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[41]
The
exception set out in subsection 29.7 provides:
|
29.7 (1) Subject to subsection
(2) and section 29.9, it is not an infringement of copyright for an
educational institution or a person acting under its authority to
(a) make a single copy of a work or other
subject-matter at the time that it is communicated to the public by
telecommunication; and
(b) keep the copy for up to thirty
days to decide whether to perform the copy for educational or training
purposes.
(2) An educational institution that has
not destroyed the copy by the expiration of the thirty days infringes
copyright in the work or other subject-matter unless it pays any royalties,
and complies with any terms and conditions, fixed under this Act for the
making of the copy.
(3) It is not an infringement of
copyright for the educational institution or a person acting under its
authority to perform the copy in public for educational or training purposes
on the premises of the educational institution before an audience consisting
primarily of students of the educational institution if the educational
institution pays the royalties and complies with any terms and conditions
fixed under this Act for the performance in public.
[Emphasis
added]
|
29.7 (1) Sous réserve du paragraphe (2) et de
l’article 29.9, les actes ci-après ne constituent pas des violations du droit
d’auteur s’ils sont accomplis par un établissement d’enseignement ou une
personne agissant sous l’autorité de celui-ci :
a) la reproduction à des fins pédagogiques, en un
seul exemplaire, d’une œuvre ou de tout autre objet du droit d’auteur lors de
leur communication au public par télécommunication;
b) la
conservation de l’exemplaire pour une période maximale de trente jours
afin d’en déterminer la valeur du point de vue pédagogique.
(2) L’établissement
d’enseignement qui n’a pas détruit l’exemplaire à l’expiration des trente
jours viole le droit d’auteur s’il n’acquitte pas les redevances ni ne
respecte les modalités fixées sous le régime de la présente loi pour la
reproduction.
(3) L’exécution en public, devant un auditoire formé
principalement d’élèves de l’établissement, de l’exemplaire dans les locaux de
l’établissement et à des fins pédagogiques, par l’établissement ou une
personne agissant sous l’autorité de celui-ci, ne constitue pas une violation
du droit d’auteur si l’établissement acquitte les redevances et respecte
les modalités fixées sous le régime de la présente loi pour l’exécution en
public.
[mon souligné]
|
[42]
Further
on, the legislator provides that the institution will not have the right to the
exception set out in subsection 29.7(1) where the communication to the public
by telecommunication was obtained by illegal means (section 29.8 of the Act).
[43]
This
is only one of many similar exceptions targeting emanations of the Crown, but
it is sufficient to show how far we are from the scenario described by Dickson
C.J.C. in AGT at pages 281-282. In our case, the exceptions cannot be
explained away.
[44]
A
further illustration is found in the additional provisions added to the Act
in 2012. The legislator provides at subsection 41.1(1) that no person shall
attempt to circumvent technological protection measures relating to copyrighted
works. Further, subsection 41.2 provides that:
|
41.2 If
a court finds that a defendant that is a library, archive or museum or an
educational institution has contravened subsection 41.1(1) and the
defendant satisfies the court that it was not aware, and had no reasonable
grounds to believe, that its actions constituted a contravention of that
subsection, the plaintiff is not entitled to any remedy other than an
injunction.
[Emphasis added]
|
41.2 Dans
le cas où le défendeur est une bibliothèque, un musée, un service
d’archives ou un établissement d’enseignement et où le tribunal est
d’avis qu’il a contrevenu au paragraphe 41.1(1), le demandeur ne peut obtenir
qu’une injonction à l’égard du défendeur si celui-ci convainc le tribunal
qu’il ne savait pas et n’avait aucun motif raisonnable de croire qu’il avait
contrevenu à ce paragraphe.
[Mon
souligné]
|
[45]
Then,
in a totally different context, paragraph 45(1)(b) of the Act provides
that it is lawful for a person to do the following:
|
45. (1) Notwithstanding anything in this Act, it is lawful for
a person
…
(b) to
import for use by a department of the Government of Canada or a province
copies of a work or other subject-matter made with the consent of the
owner of
the copyright in
the country where it was made;
…
[Emphasis
added]
|
45. (1) Malgré les autres dispositions de la présente loi, il
est loisible à toute personne :
[…]
b) d’importer, pour l’usage d’un
ministère du gouvernement du Canada ou de l’une des provinces, des
exemplaires — produits avec le consentement du titulaire du droit d’auteur
dans le pays de production — d’une œuvre ou d’un autre objet du droit
d’auteur;
[…]
[Mon
souligné]
|
[46]
Turning
back to the 1997 additions to the Act, subsection 30.3(1) sets out
another scenario where an educational institution, library, archive or museum’s
actions will not constitute infringement. However, this scenario is subject to
strict conditions set out in subsection 30.3(2):
|
30.3 (1) An
educational institution or a library, archive or museum does not infringe
copyright where
…
(2) Subsection
(1) only applies if, in respect of a reprographic reproduction,
(a) the educational institution, library, archive or
museum has entered into an agreement with a collective society that is
authorized by copyright owners to grant licences on their behalf;
(b) the Board has, in accordance with section
70.2, fixed the royalties and related terms and conditions in respect of a
licence;
(c) a tariff has been approved in accordance with section
70.15; or
(d) a
collective society has filed a proposed tariff in accordance with section
70.13.
[Emphasis added]
|
30.3 (1) Un
établissement d’enseignement, une bibliothèque, un musée ou un service
d’archives ne viole pas le droit d’auteur dans le cas où :
[…]
(2) Le
paragraphe (1) ne s’applique que si, selon le cas, en ce qui touche la
reprographie :
a) ils ont conclu une entente avec
une société de gestion habilitée par le titulaire du droit d’auteur à
octroyer des licences;
b) la
Commission a fixé, conformément à l’article 70.2, les redevances et
les modalités afférentes à une licence;
c) il
existe déjà un tarif pertinent homologué en vertu de l’article 70.15;
d) une société
de gestion a déposé, conformément à l’article 70.13, un projet de tarif.
[Mon
souligné]
|
[47]
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.
[48]
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.
[49]
It
is not necessary in my view to consider the argument advanced by Access
regarding whether any other interpretation of the Act would result in a
breach of Canada’s international obligations under NAFTA, TRIPS or any other
international convention ratified and implemented in Canada. This is especially
so when one considers that this argument was not fully developed before us.
[50]
In
the circumstances, there is also no need to consider whether granting immunity
would result in a frustration of the Act as a whole or in an absurdity.
[51]
Access
had argued that Crown immunity should not even be in play, as immunity from the
Act and the tariffs would constitute expropriation without compensation.
As noted earlier, the Board rejected this argument. Given that I have found
that the Crown is bound by the Act, I express no opinion on this point.
[52]
In
light of the foregoing, I propose that this application be dismissed with
costs.
“Johanne
Gauthier”
“I
agree
K. Sharlow J.A.”
“I
agree
Robert M.
Mainville J.A.”
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