Crown copyright

Crown copyright is a form of copyright claim used by the governments of the United Kingdom and a number of other Commonwealth realms.

In the United Kingdom
Crown copyright applies to all works produced by the British Government, subject to the condition that the qualification "Where a work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties" is met. The Crown can also have copyrights assigned to it. There is also a small class of materials where the Crown claims the right to control reproduction outside normal copyright law due to Letters Patent issued under the royal prerogative. This material includes the King James Bible, and the Book of Common Prayer.

Prior to the 17th century, the executive - acting on behalf of the monarch, under the royal prerogative - controlled all printing, and the granting of licences to printers. During the 17th century, the Crown lost most of its rights, except with regard to the King James Bible, the Book of Common Prayer, Acts of Parliament and similar. Until 1911, there was no special status for the Crown, excepting those texts.

The Copyright Act 1911 (the 1911 Act), removed the concept of common law copyright protection from British law, and it also provided specific protection for government works for the first time. Crown copyright was defined to extend to any work prepared or published by or under the direction or control of His Majesty or any Government department. The Copyright Act 1956 further extended Crown copyright protection by extending the definition to include every original literary, dramatic, musical or artistic work made by or under the direction or control of Her Majesty or a Government department; sound recordings or cinematograph films made by or under the direction or control of Her Majesty or a Government department and works first published in the UK, if first published by or under the direction or control of Her Majesty or a Government department.

When the Copyrights Designs and Patents Act 1988 (the 1988 Act) came into force, the scope of the definition of Crown copyright was considerably reduced. Crown copyright was defined as subsisting when a "work is made by Her Majesty or by an officer or servant of the Crown in the course of his duties". Crown copyright was also defined as subsisting "in every Act of Parliament, Act of the Scottish Parliament, Act of the Northern Ireland Assembly or Measure of the General Synod of the Church of England". All existing works in Crown copyright were continued as such.

However, some documents have Crown Copyright waived by the government, subject to certain conditions. This was introduced in a white paper in 2000 in order to improve access to government publications. There are 11 classes of copyrights for which waivers are granted. The document concerned, from Her Majesty's Stationery Office (HMSO), is Future Management of Crown Copyright. Which documents are subject to waivers varies from time to time. The current list may be found on the official site.

Websites are reproducible unless otherwise indicated, but HMSO has stated in correspondence that they do not consider material under Crown Copyright redistributable under such licenses as the GFDL. For example, documents on the website of the Public Records Office" are subject to the following conditions:

"The material featured on this site is subject to Crown copyright protection unless otherwise indicated. The Crown copyright protected material (other than the Royal Arms and departmental or agency logos) may be reproduced free of charge in any format or medium provided it is reproduced accurately and not used in a misleading context. Where any of the Crown copyright items on this site are being republished or copied to others, the source of the material must be identified and the copyright status acknowledged."

"Images on this site may not be reproduced without payment of a fee to the Image Library."

"The permission to reproduce Crown protected material does not extend to any material on this site which is identified as being the copyright of a third party. Authorisation to reproduce such material must be obtained from the copyright holders concerned."

The duration of Crown copyright varies depending whether material is published or unpublished. Unpublished material was originally subject to copyright protection in perpetuity. However, the 1988 Act removed this concept from British law. Transitional provisions apply for 50 years after the entry into force of the 1988 Act which mean that no unpublished material will lose its copyright protection until January 1, 2040. New Crown copyright material that is unpublished has copyright protection for 125 years from date of creation. Published Crown copyright material has protection for 50 years from date of publication. Those works protected under Letters Patent have perpetual copyright claimed over them despite being published. Works where copyright is assigned to the Crown by an author are subject to the normal term of protection for that particular type of work, for example life of the author plus 70 years for a literary work.

In Australia
Pursuant to part VII of the Copyright Act 1968, the Australian Government owns copyright in any work, film or sound recording made by or under the direction or control of the Government, and any work first published by or under the direction or control of the Government.

An extensive review was carried out in 2004 and the findings were published in 2005 in the Copyright Law Review Committee's report. The chief recommendation was to end the distinction between the Crown and other copyright holders. In particular, the Committee was "emphatic" that the Crown lose its unique position of gaining copyright over material whenever it is the first publisher of such material. (For example, a previously unpublished short story, upon being published in a government work, would cease to belong to the author and would instead become Crown copyright, denying the author any future royalties.)

In Canada
Under section 12 of the Copyright Act, the government reserves its rights with respect to all documents produced by the Government of 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 ... belong to Her Majesty and ... 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

The Crown's ownership in its works is no more limited than those of any private persons. In practice, government materials are often licensed to the public for non-commercial use under the conditions that 1) due diligence is taken to ensure accuracy, 2) the source is identified, and 3) the material is not represented as an official version. Absent any licence available from the source of the material, there is no presumption that any government material is subject to such a licence.

Enforcement of this right has been relatively infrequent and so its effectiveness remains uncertain for certain materials. However, this is not true for some material. In the past few years the Crown has exercised its rights with respect to nautical maps which have been used for commercial companies for oil and gas exploration. This suggests that their right in crown copyright is likely enforceable.

In Canada, leaving aside the question of Crown prerogative, the federal government has legislative authority for copyright in the law. Section 12 of the Copyright Act is the provision dealing with Crown copyright. This section gives copyright to the Crown in works that are “prepared or published by or under the direction or control of Her Majesty or any government department.”

Exceptions
In 1996 the "Reproduction of Federal Law Order" was introduced by the federal government which gave permission for the public to reproduce federal legislation and regulations, as well as decisions by federally-enacted court and tribunals (eg. the Supreme Court, appellate courts). The only condition is that due diligence be taken to ensure accuracy and the document is not represented as an official version. Nevertheless, the order is only a licence to copy, thus the government can revoke future copying at its own discretion. Furthermore, the government still reserves its moral rights.

None of the provinces have introduced such a licencing scheme for their government documents. Instead, some provinces, such as Ontario, allow copying only under the condition that the document clearly acknowledges its unofficial nature and that it is labeled with the year of publication such as:
 * © Queen's Printer for Ontario, 20—. This is an unofficial version of Government of Ontario legal materials.

The Information Highway Advisory Council, in its 1995 Final Report, recommended that Crown copyright generally, and not specifically in relation to the laws, should be maintained, but that the Crown in Right of Canada should, as a rule, place federal government information and data in the public domain.

It was also recommended that where Crown copyright is asserted for generating revenue, licensing should be based on the principles of non-exclusivity and the recovery of no more than the marginal costs incurred in the reproduction of the information or data ... the federal government should create and maintain an inventory of Crown works covered by intellectual property that is of potential interest to the learning community and the information production sector at large; negotiate nonexclusive licenses for their use on the basis of cost recovery for digitization, processing and distribution; and invite provincial and territorial governments to provide similar services.

The Yukon Territory and the federal government take the most liberal approach to Crown copyright in statutes and regulations, by permitting anyone to make copies without permission for any purpose – except commercial – while the other jurisdictions make fairly strongly worded prohibitions against copying the laws for anything other than personal use. It appears that perhaps the intent of these notices is to prevent copying by commercial publishers of the electronic version as prepared by the government, while permitting commercial publishers to manually type (or optically scan) the text of statutes if they wish to publish individual statutes (presumably with some value added to the raw legislative text).

Because the federal government was the leader in publishing statutes and regulations for free in Canada, and is responsible for the Copyright Act, it is important to take note of the Reproduction of Federal Law Order, PC 1996-1995, 19 December 1996. The preamble states the basic principles that support the copyright notice.

Whereas it is of fundamental importance to a democratic society that its law be widely known and that its citizens have unimpeded access to that law …. Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.

The federal Department of Justice has granted a free licence for copying federal law.

The Yukon Territory has perhaps the simplest copyright notice of all Canadian jurisdictions: “The legal material on this site may be reproduced, in whole or in part and by any means, without further permission from Yukon Justice.”

By contrast, the other jurisdictions in Canada all restrict copying for commercial purposes (and sometimes for other purposes as well). One can speculate that the reason that some provinces assert copyright and limit electronic access to the law is to sell legal texts to legal publishers and the law profession. To ensure governments have something to sell, it is necessary to impose copyright limits and to ensure that the electronic access to the law that is provided is not as functional as it could be.

It should also be noted that governments are increasingly limiting the paper production and distribution of their laws and court decisions. This makes it all the more important for governments to provide the maximum access to electronic versions of the law.

Perhaps the most detailed copyright notice is from British Columbia, which refers to matters of ownership, reproduction, distribution, sale private study, and so on. It even tells the reader who to contact if they have any questions, and how to do so.

See also the copyright notices from Ontario, Alberta, New Brunswick,  Newfoundland,  Nova Scotia,  Quebec  and the Northwest Territories.

As would be expected, jurisdictions that do not publish their statutes for free on the Internet have tougher copyright notices.

The British Columbia Superior Courts notice reads:


 * The decisions of the Superior Courts are made available on the Internet for the purpose of public information and research. The material on the database/web site may be used without permission provided that the material is accurately reproduced and an acknowledgement of the source of the work is included. Copying of the materials, in whole or in part, for resale or other commercial purposes is strictly prohibited unless authorized by the Superior Courts.

The question of who owns copyright in statutes and court and administrative tribunal decisions is one that is rarely litigated. It has been used by some governments to justify a refusal to publish the laws electronically and to justify using the laws to generate revenues. One way to challenge these arguments is to question the legal theory of copyright in the laws, but perhaps the better way is to focus on the policy choices and arguments relating to access to the laws.

In Tolmie v Attorney-General of Canada, Oct. 14, 1997 (F.C.T.D.), McGillis J dealt with a case where Mr. Tolmie requested, on 6 January 1995, under the Access to Information Act, the Revised Statutes of Canada in electronic form. “The preferred format is the existing WordPerfect 5.1 format that is presently used within Justice Canada for creating the Statutes. However, alternative formats such as the Folio format used on the CD-ROM produced for this purpose would be acceptable.” On 20 August 1995, the Department of Justice published the electronic statutes and announced they would soon be published on CD-ROM, which occurred in October 1995. The CD-ROM was priced at $225.00. McGillis J rejected Mr. Tolmie’s request on the grounds that the statutes were publicly available in electronic format and therefore excluded from the application of the Act under s 68(a).

In New Zealand
Crown copyright in New Zealand is defined by Sections 2(1), 26 and 27 of the Copyright Act 1994. The Crown is the first owner of any copyright subsisting in any work created by a person who is employed or engaged by the Crown, under a contract of service, apprenticeship, or a contract for services. It covers works of the Queen in right of New Zealand, Ministers of the Crown, offices of Parliament and government departments. For Crown entities and State-owned enterprises, however, regular copyright provisions apply instead.

A term of 100 years applies under Section 26(3)(b), with the exception 25 years for typographical arrangements of published material.

At common law, and under the Copyright Acts until recently, the Crown acquired title by a kind of prerogative copyright in certain books or publications such as Acts of Parliament, Proclamations, and Orders in Council. However, there has been a deliberate divestment by the Crown of its copyright in law – principally in light of the policy considerations which hold that law should be freely available.

Section 27(1) defines a further exception to Crown copyright and copyright -- Bills, Acts of Parliament, regulations, bylaws, Hansard, tabled select committee reports, court judgments, tribunal judgments, Royal commission reports, commission of inquiry reports, ministerial inquiry reports and statutory inquiry reports do not carry any copyright, regardless of age. Section 27(1) came into effect on 1 April 2001. There is, in New Zealand, under s 27 of the Copyright Act 1994, no copyright in regulations.

Of course, the Section 27(1) exceptions apply in the original work, and do not apply in terms of new typographical editions by others, nor in annotations made by organisations such as legal publishers.