By Richard Stobbe

A certain code is adopted into law. Someone sells copies of that code, but they’re sued for copyright infringement.  So… who owns the copyright? If the government owns copyright, then how can a reproduction of the law be considered infringement?  If the government does not own copyright, then how did the code become part of the law in the first place?

These are the vexing questions that the Federal Court of Appeal tackled in a new and interesting decision on Crown copyright and fair dealing.

In P.S. Knight Co. Ltd. v. Canadian Standards Association, 2018 FCA 222, the court reviewed  copyright issues surrounding the Canadian Electrical Code, which has been adopted by federal and provincial legislation: for example, in Alberta, the Electrical Code Regulation formally declares the Canadian Electrical Code, Part 1 (Twenty‑third edition) to be “in force” in the province in respect of electrical systems. This means that the Code is essentially part of the law of the land, and there are penalties for any failure to comply.  In fact, Alberta, Newfoundland, Ontario and Yukon expressly require that the Canadian Electrical Code be made available to the public in some form.

This is a commercial dispute that stretches back to the late 1960s, when Knight began developing products that competed with the publications of the Canadian Standards Association (CSA). Knight even created a simplified version of the Code (the Electrical Code Simplified).  Through a series of events, Knight eventually sought to reproduce and sell the entire Canadian Electrical Code as its own publication, at a discount, undercutting the CSA price.  That’s when the CSA sued for copyright infringement. The CSA obtained an order for Knight to deliver up all infringing copies of the Code, Part I (the CSA Electrical Code or the Code), and ordered Knight Co. to pay statutory damages and costs of close to $100,000.

Knight appealed.

The Federal Court of Appeal dismissed Knight’s appeal, deciding that the Code is protected by copyright, even though it was developed and authored by committee. Just because the CSA made the Code available to be part of the mandated standard for the country, this doesn‘t mean the CSA gave up its own copyright interests in the Code.   The court also found that the Crown did not own copyright in the Code.  As for the defence of ‘fair dealing’, the court weighed the various factors – the purpose of the dealing, character of the dealing, amount of the dealing, alternatives to the dealing, nature of the work and the effect of the dealing. It the court’s analysis, these factors “overwhelmingly“ supported the conclusion that Knight’s copying and sale of the Code did not qualify as “fair dealing.”

In a strong dissent, Justice Webb seemed to appreciate the absurdity of penalizing someone from reproducing a Canadian law.

“What is in issue in this case,” according to the dissent, “is the right to publish certain works that have become part of the laws of Canada. …. Since the Code was considered as part of the text of the Regulations when it was incorporated by reference, it is the same as if it had been reproduced in full in the Regulations and, therefore, is part of the Regulations. Since the Reproduction of Federal Law Order permits any person to copy any enactment, the Crown has already granted P.S. Knight Co. Ltd. the right to copy the Code.”

Calgary – 07:00 MST