2013 FCA 91, 2013 FCA 91

[2014] 4 F.C.R. 3 A-119-12 2013 FCA 91 The Governments of the Province of Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Saskatchewan ( Applicants ) v. The Canadian Copyright Licensing Agency operating as “Access Copyright” ( Respondent ) Indexed as: Manitoba v. Canadian Copyright Licensing Agency (Access Copyright) Federal Court of Appeal, Sharlow, Gauthier and Mainville JJ.A.—Ottawa, February 12 and April 3, 2013.

Copyright — Judicial review of decision by Copyright Board of Canada dismissing applicants’ objection that Board having no jurisdiction to establish tariff that would apply to them in respect of reprographic reproduction of copyrighted works in Canadian Copyright Licensing Agency’s (Access Copyright) repertoire — Access Copyright filing proposed tariffs applicable to employees of provincial, territorial governments — Applicants arguing presumption of Crown immunity applying, not bound by Copyright Act (Act) — Board noting that

Interpretation Act , s. 17 creating presumption that Crown not bound by any statute, but that presumption rebutted where contrary intention to bind Crown demonstrated — Board noting that Act containing exceptions indicating Parliament’s intent to circumscribe activities not infringing copyright — Such exceptions not necessary if Crown benefitting from overall immunity — Board analysing Act contextually, concluding Act binding Crown — Whether Board erring in concluding that Act binding applicants by necessary implication — S. 17 presumption rebutted by clear parliamentary intention to bind Crown or logical inference thereof — Board applying proper approach — Words “[w]ithout prejudice to any rights or privileges of the Crown” in Act, s. 12 referring to, preserving Crown’s rights, privileges of same general nature as copyright not falling within meaning of rest of provision — Such rights, privileges otherwise excluded by general principle in Act, s. 89 — Exceptions in Act confirming Parliament’s intention — Conditions attached to exceptions illogical in absence of intent to bind Crown — References in Act to conditions, tariffs pointing to logical conclusion Crown bound by Act — Parliament intending to bind Crown by express language of Act, logical inference — Application dismissed.

Construction of Statutes — Copyright Board of Canada dismissing applicants’ objection that Board having no jurisdiction to establish tariff that would apply to them in respect of reprographic reproduction of copyrighted works in Canadian Copyright Licensing Agency’s (Access Copyright) repertoire — Access Copyright filing proposed tariffs applicable to employees of provincial, territorial governments — Applicants arguing presumption of Crown immunity applying, not bound by Copyright Act (Act) — Whether Board erring in concluding that Act binding applicants by necessary implication —

Interpretation Act , s. 17 presumption that Crown not bound by any statute rebutted by clear parliamentary intention to bind Crown or logical inference thereof — Words “[w]ithout prejudice to any rights or privileges of the Crown” in Act, s. 12 referring to, preserving Crown’s rights, privileges of same general nature as copyright not falling within meaning of rest of provision — Such rights, privileges otherwise excluded by general principle in Act, s. 89 — Exceptions in Act confirming Parliament’s intention — Parliament intending to bind Crown by express language of Act, logical inference.

This was an application for judicial review of a decision by the Copyright Board of Canada dismissing the applicants’ 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). Access had filed proposed tariffs relating to the reproduction of published works in its repertoire by employees of all provincial and territorial governments.

The applicants had argued that the presumption of Crown immunity applied and the Copyright Act (Act) did not bind them. The Board noted 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. It noted that the Act contains exceptions that expressly benefit the Crown and that 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, these exceptions would not have been necessary.

They were not adopted out of an abundance of caution or as historical incidents. The Board concluded that when the whole of the Act is analysed contextually, the logical conclusion is that the Act generally binds the Crown. The main issue was whether the Board erred in law when it concluded that the Act binds the applicants by necessary implication. Held , the application should be dismissed. To rebut the presumption in

section 17 of the

Interpretation Act , there must be a clear parliamentary intention to bind the Crown, or 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. The Board understood this and applied the proper approach when it undertook its task. The words “[w]ithout prejudice to any rights or privileges of the Crown” set out in

section 12 of the Act 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 of the Act which provides that no person is entitled to copyright otherwise than under and in accordance with the Act or any other Act of Parliament. A number of exceptions in the Act confirm Parliament’s intention as expressed by the Board when construing the Act. Many of those exceptions are subject to conditions that would be illogical in the absence of a clear intent to otherwise bind the Crown.

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 the logical and plausible conclusion that the Crown is bound. While the Act does not contain an “expressly binding” clause at the beginning, Parliament clearly intended to bind the federal and provincial Crowns by the express language of the Act and through logical

inference. Statutes and Regulations Cited Bill C-32,

An Act to amend the Copyright Act, 2nd Sess., 35th Parl., 1997. Copyright Act, R.S.C., 1985, c. C-42, ss. 2 “educational institution”, 3, 12, 15, 18, 21, 29.4(2), 29.7, 29.8, 30.3, 32.1(1), 41.1(1), 41.2,45.1(b), 70.15(1), 89. Copyright Act, 1921, S.C. 1921, c. 24.

Interpretation Act, R.S.C., 1985, c. I-21, s. 17. Patent Act, R.S.C., 1985, c. P-4, s. 2.1. TREATIES AND OTHER INSTRUMENTS CITED Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the WorldTrade Organization, signed in Marrakesh, Morocco, 15 April 1994, 1869 U.N.T.S. 299, Art. 39. North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and theGovernment of the United States of America, December 17, 1992, [1994] Can. T.S. No. 2, Art. 1711.

CASES CITED applied: Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, (1992), 88 D.L.R.(4th) 1. distinguished: Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), (SCC),[1989] 2 S.C.R. 225, [1989] 5 W.W.R. 385. considered: Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R.489. referred to: R. v. Eldorado Nuclear Ltd.; R. v.

Uranium Canada Ltd., (SCC), [1983] 2 S.C.R. 551, (1983), 4 D.L.R. (4th) 193; R. v.Ouellette, (SCC), [1980] 1 S.C.R. 568, (1980), 111 D.L.R. (3d) 216; Sparling v. Quebec (Caisse de dépôt et placementdu Québec), (SCC), [1988] 2 S.C.R. 1015, (1988), 55 D.L.R. (4th) 63; Collège d’arts appliqués et de technologie LaCité collégiale v. Ottawa (City), , 37 O.R. (3d) 737 (C.A.); Rogers Communications Inc. v. Society of Composers,Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283. AUTHORS CITED Canada. Parliament. House of Commons. Sub-Committee on the Revision of Copyright.

A Charter of Rights for Creators: Report of theSub-committee on Communications and Culture. Ottawa: The Sub-committee, 1985. House of Commons Debates, Vol. 134, 2nd Sess., 35th Parl. (June 4, 1996).

House of Commons Debates, Vol. 134, 2nd Sess., 35th Parl. (March 13, 1997). application for judicial review of a decision by the Copyright Board of Canada (Access Copyright – Provincial and TerritorialGovernments Tariffs (2005-2014) (<http://www.cb-cda.gc.ca/decisions/2012/20120105-2.pdf>)) dismissing the applicants’ objectionthat the Board has no jurisdiction to establish a tariff that would apply to them in respect of the reprographic reproduction of copyrightedworks in the repertoire of the Canadian Copyright Licensing Agency. Application dismissed. APPEARANCES Aidan O’Neill and Wanda Noel for applicants.

Randall Hofley and Nancy Brooks for respondent. SOLICITORS OF RECORD Fasken Martineau DuMoulin LLP, Ottawa, and Wanda Noel, Ottawa, for applicants. Blake, Cassels & Graydon LLP, Ottawa, for respondent. The following are the reasons for judgment rendered in English by

[1] Gauthier J.A.: The governments of the provinces of Manitoba, New Brunswick, Nova Scotia, Prince Edward Island andSaskatchewan (the applicants) seek judicial review of the decision [Access Copyright – Provincial and Territorial Governments Tariffs(2005-2014)] of Copyright Board of Canada (the Board) dismissing their objection that the Board has no jurisdiction to establish a tariffthat would apply to them in respect of the reprographic reproduction of copyrighted works in the repertoire of the Canadian CopyrightLicensing 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 arguedthat 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 byAccess for certification by the Board pursuant to

section 70.15(1) of the Act.

Section 17 of the

Interpretation Act reads as follows: Her Majesty not bound oraffected unless stated 17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights orprerogatives in any manner, except as mentioned or referred to in the enactment. [3] The Board concluded that the Act, construed contextually, is intended to bind the Crown, and on that basis rejected theapplicants’ 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 publishedworks in its repertoire by employees of all provincial and territorial governments (with the exception of Quebec). All these provinces andterritories 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 theAct to consider the proposed tariffs.

In the course of this challenge, the applicants argued that the presumption of Crown immunityapplies 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) [see Access Copyright – Provincial and Territorial Governments Tariffs (2005-2014),http://www.cb-cda.gc.ca/decisions/2012/prov_reason_2012.pdf].

Since then, the Board has proceeded to hear the parties’ representationson 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 Quebechas 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 theprovisions of the Act by seeking authorization and paying royalties to copyright holders. They emphasize that they intend to continuethese 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 lawprinciple that there can be no expropriation without just compensation. It held that the common law cannot overcome the clear statutorylanguage of

section 17 of the

Interpretation Act. In its view, the fact that the applicants would be prejudiced if the proposed tariffs wereapproved 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.; R. v. Uranium Canada Ltd., (SCC), [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 Crownis not bound by any statute, but that presumption is rebutted where it can be demonstrated that there exists a contrary intention to bind theCrown. [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 statutoryinterpretation, to determine whether there are other provisions from which it might be inferred that the Crown is intended to be bound bythe Act. [14] The applicants relied on

section 12 of the Act, which reads as follows: Wherecopyrightbelongs toHerMajesty 12. Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by orunder the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to anyagreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year ofthe first publication of the work and for a period of fifty years following the end of that calendar year. [15]

Section 12 appears in

Part I [sections 3 to 14.2] of the Act, which defines the rights of copyright holders. After carefully andthoroughly considering the legislative history and evolution of

section 12, the Board rejected the applicants’ argument that

section 12should be read as expressly providing for Crown immunity from the Act. The Board’s analysis began with a recognition of the history ofCrown 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 Boardexpressed 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 copyright otherwise than under and in accordance with this Act”. In the absence of the opening phrase ofsection 12,

section 89 would operate to eliminate all remaining common law copyright held by the Crown. The Board concluded [atparagraph 52 of the reasons] that the words “without prejudice to any rights or privileges of the Crown” in

section 12 of the Act arenecessary 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 largenumber of very specific exceptions for both the federal and provincial Crowns in 1997 (see paragraph 66 of the reasons). Thus, apartfrom

section 12, the Act contains a score or more of exceptions that expressly benefit the Crown such as those that benefit the Crown atlarge (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 ArchivesCanada (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 detailed nature of these exceptions seem to indicate a purposeful, explicit intention on the part of Parliament to identifyand circumscribe activities that do not infringe copyright.

If the Crown benefited from an overall immunity from the Act, why wouldParliament 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 historicalincidents, as in Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), (SCC), [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, (SCC), [1980] 1 S.C.R. 568 (Ouellette), and concluded at paragraph 68of the reasons: When analyzing the whole of the Act contextually, we are irresistibly drawn to the logical conclusion that the Act generally binds theCrown. [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 meanthat the Board would have to reject on its own motion any tariff filed in respect of any emanation of the Crown, unless immunity hadbeen waived.

This would also mean that Crown corporations such as Telefilm, the National Film Board, and the CBC [CanadianBroadcasting Corporation] could use copyrighted works without regard to the rights of their authors or copyright holders.

This wouldleave a significant gap in the enforcement of copyright by rights holders which, in the Board’s view, supports the logical implication thatthe 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 ofgovernment 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 (seeFriends of the Oldman River Society v.

Canada (Minister of Transport), (SCC), [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 benecessary to decide whether there would be a resulting absurdity were the Crown not so bound”, given that Parliament’s intention isrevealed 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 inany event the applicants had waived their immunity either in relation to the totality of the provisions contained in the Act, oralternatively, in relation to certain of its provisions. [23] The Board considered the applicable legal principles set out in Sparling v.

Quebec (Caisse de dépôt et placement du Québec), (SCC), [1988] 2 S.C.R. 1015, and then noted that the conduct of the applicants since the first adoption of the Act spokevolumes. The applicants’ behaviour, coupled with the fact that they have enjoyed benefits under sections 3, 15, 18 and 21 of the Act andexercised their rights in relation to a number of related provisions, showed that they had waived Crown immunity (see paragraph 82 ofthe 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 thatrespect, 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 exceptionshould 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 theAct; 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 Crownprerogative 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, theapplicants claim that the Board misunderstood the test to be applied. They argue that the Board failed to appreciate that there must be asufficient nexus between the benefits and the burdens involved to apply this doctrine.

They advance that the Board misapplied the saidtest to the facts of this matter, failing to appreciate that the applicants’ practice of voluntarily respecting the rights of copyright holderswas 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’artsappliqués et de technologie La Cité collégiale v. Ottawa (City), , 37 O.R. (3d) 737 (C.A.), at paragraph 19. Given theconclusion 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 ofreview is correctness (Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35,[2012] 2 S.C.R. 283, 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 anyconstitutional argument in this case.

They also confirmed that despite what appears in paragraph 69 of the Board’s reasons, they wereand 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 currentproceeding 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 ofthe

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, (SCC), [1978] 1 S.C.R. 61] and Eldorado [supra], the scope of the words “mentioned or referred to” must be given an

interpretationindependent of the supplanted common law. However, the qualifications in Bombay [Province of Bombay v. Municipal Corporation ofBombay, [1947] A.C. 58] are based on sound principles of

interpretation which have not entirely disappeared over time. It seems to methat the words “mentioned or referred to” in s. 16 [now s. 17 of the

Interpretation Act] are capable of encompassing: (1) expresslybinding words (“Her Majesty is bound”); (2) a clear intention to bind which, in Bombay terminology, “is manifest from the very terms ofthe 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 guidelinefor 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 ifone 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 clearparliamentary intention to bind the Crown (second prong of the exception). Only if it were unable to find such a clear intention would ithave 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 thatthere is an intention to bind the Crown. The search for parliamentary intention must be undertaken though a contextual

interpretation ofthe 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 applicantsthat 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 theobjectives of the Act which were described in Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting OrderCRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489, at paragraph 36 as follows: 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 copyrightowners in works or other protected subject matter, typically in the nature of a statutory monopoly to prevent anyone from exploiting thework in specified ways without the copyright owner's consent.

It also provides user rights such as fair dealing and specific exemptionsthat 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), atpp. 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 isentitled “Copyright and Moral Rights in Works”. It deals with the rights attached to copyrighted works, the owners, and the duration ofsaid copyright.

Part III [sections 27 to 33.2] of the Act is entitled “Infringement of Copyright and Moral Rights and Exceptions toInfringement”, and it is where one finds a score or more of exceptions that quite explicitly relate or apply to the Crown (federal andprovincial).

[ 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 rights or privileges 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 [ Copyright Act, 1921 , S.C. 1921, c, 24]. [ 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 [

An Act to amend the Copyright Act , 2nd Sess., 35th Parl.] 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 , Vol. 134, 2nd Sess., 35th Parl. (4 June 1996)), at pages 3442–3443 (Mr. Louis Plamondon (Richelieu, BQ)), at page 3460 (Mrs. Suzanne Tremblay (Rimouski-Témiscouata, BQ)), and at pages 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 Debate s, Vol. 134, 2nd Sess., 35th Parl. (13 March 1997)), at page 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:

Definitions 2. … “educational institution” « établissement d’enseigne-ment » “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 [ 41 ] The exception set out in

section 29.7 provides: Reproduction of broadcast 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. Royalties for reproduction

(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. Royalties for performance

(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.] [ 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,

section 41.2 provides that:

Injunction only remedy 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.] [ 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: Exceptions 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.] [ 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): No infringement by educational institution, etc. 30.3

(1) An educational institution or a library, archive or museum does not infringe copyright where … Application (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 . (

d) a collective society has filed a proposed tariff in accordance with

section 70.13. [Emphasis added.] [ 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,

section 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 [ A Charter of Rights for Creators: Report of the Sub-Committee on the Revision of Copyright ]. 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 [ North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America , December 17, 1992, [1994] Can. T.S.

No. 2, Art. 1711], TRIPS [ Agreement on Trade-Related Aspects of Intellectual Property Rights , Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization , signed in Marrakesh, Morocco, 15 April 1994, 1869 U.N.T.S. 299, Art. 39] 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. Sharlow J.A. : I agree. Mainville J.A. : I agree.