Thursday, September 06, 2007

Breakthrough at the Copyright Board on architectural plans?

Mr. Justice Vancise, who is the Chairperson of the Copyright Board and a Court of Appeal Judge in Saskatchewan has presented what seems to be an annual tradition, namely a speech to IPIC in the latter’s copyright course given in August.

In this speech, Justice Vancise describes at length the Board’s activities concerning unlocatable copyright owners. Most of these files are very routine, and likely do not or should not (in my view) involve any significant time on the part of board members. The one decision where the Board members apparently got seriously involved (Breakthrough Films) is very problematic in many ways, which I’ve touched upon elsewhere.

Justice Vancise says that there will be an announcement soon about what the Board will do about architectural plans, when the architect cannot be located and someone needs copies of the plans from city hall. A very large number of the Board’s issued licenses where the owner is unlocatable (about 60 out of 206 or about 29%) arise from this situation. Apparently, the city solicitors in Ottawa and Calgary in particular will not allow copies of filed plans to be made for renovation or other construction work without either permission from the architect or a Copyright Board decision.

The Supreme Court of Canada held in 1971 that permission is not required to make copies of architectural plans in this kind of circumstance - because there is an implied right to use them and make copies for such purposes. The case is NETUPSKY et al. v. DOMINION BRIDGE CO. LTD. (1971) 3 C.P.R. (2d) 1 SCC Varying 58 C.P.R. 7 Reversing 56 C.P.R. 134.

The Court stated at page 7:
In the circumstances of this case, it is clear that the changes or modifications not only were not forbidden but were in contemplation at the time when the City of Ottawa and, through it, Dominion Bridge, its sub-contractor, became the licensee of Netupsky for the construction of its Civic Centre. Such a licence carries with it an implied consent to make the changes which Netupsky should have made and refused to make, and also, an implied consent to reproduce the plans in as many copies as might be necessary for the construction of the work.
While that decision may have been based upon particular circumstances, there is no reason to suggest that its overall principle would not apply generally.

If the city solicitors haven’t read this case or don’t read it the way I do, then the Copyright Board should issue a ruling once and for all going through the case law in order to make this problem go away. It is clearly a waste of the Board’s staff time, and an obvious source of significant costs and delays to anyone needing to do any building renovation or other construction work requiring old plans in Ottawa or Calgary. As anyone who owns a home or a building knows, delays cost money when work needs to be done.

It serves no useful purpose and can only promote considerable disrespect for copyright to invoke copyright law to delay the obtaining of copies of old blueprints to repair or renovate old buildings when the result will be long delays and great expense and the architect of the plans is no longer around and likely wouldn’t be entitled to any money or to deny permission anyway. There is an implied right of the owner of a building to repair or renovate that building, and the plans may be essential for that activity - for efficiency and even safety purposes.

Hopefully, this is what Justice Vancise has in mind. Such a change in Board practice would be better late than never. I have no knowledge of what the announcement will be - but I hope I’m right.


1 comment:

  1. The City of Ottawa was using this to excess. When someone in the city asks for a variance on a zoning by-law, they file plans with the city and the city notifies the neighbours that there will be a hearing on this request. But they don't send neighbours a copy of the plans. Neighbours must travel to a building in Nepean and consult the plans there. They don't allow you to make photocopies or even to trace the plans to show neighbours. Copyright, they say. The community association must send a different architect to that office to re-draw the plans free-hand and show those to the neighbours.

    I don't think it has anything to do with copyright, it's more of a disingenuous pretext to avoid compliance the Planning Act, which requires consultation with neighbours.