Monday, October 15, 2007

Architectural Plans Redux

I am tardy in pointing out that the Copyright Board has updated its website since my September 6, 2007 posting about architectural plans. I was at least partially right in my prediction of what the Board would do. It seems that Justice Vancise, the Board’s Chairman, is really determined to solve a problem here.

The new policy (dated August 22, 2007) is now available is on the “What’s New” page of the Board’s website, along with Chairman Vancise’s speech of August 15, 2007 which I linked to in my previous posting, but which was not then on the Board’s “What’s New” page.

The Board has concluded that it now normally won’t be issuing licenses for architectural plans where the building owner needs copies from city hall in order to renovate or reconstruct and the architect is unlocatable. This is because the Board has concluded that such licenses are not necessary.

The Board provides two rationales for its newly stated policy.

The first rationale is this:
First, in most cases, the contemplated uses either constitute fair dealing for the purpose of research or would be covered by an implied licence.
Naturally, I am a big fan of the “large and liberal interpretation” of Canada’s fair dealing provisions as set forth in the Chief Justice’s wonderful Supreme Court of Canada judgment in CCH v. LSUC dealing with fair dealing involving on “research. ” I am pleased that the Board too appears now to taking a “large and liberal” view on fair dealing, and hopefully that will translate into tangible results in other files, such as the Access Copyright reprography hearings now underway, private copying, and potentially other matters.

And I am pleased to see that the Board agrees that the implied license doctrine would be applicable in these circumstances. This was discussed in my previous blog and is set forth in the Supreme Court of Canada’s decision in 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 Board suggests that either fair dealing or an implied license would cover “most cases.” I would think that the implied license doctrine would cover virtually all cases involving architectural plans where the owner of copyright, if any, can’t be found.

The second basis given by the Board is this:
Second, subsection 32.1(1) of the Copyright Act provides that a municipality that supplies copies of plans pursuant to an access to information request does not violate copyright. Most Canadian municipalities are subject to access to information legislation.
The Board has issued licences until now so as to afford applicants access to plans to which they are legally entitled until the Board had finalized its policy on this issue. The policy has now been defined in respect to plans that can be accessed through an access to information request. Where this can be done, no licence will be issued. Potential applicants will be advised to file an access to information request with the municipality.
Thus, the Board has punted the issue to the municipal authorities. The Board has properly concluded that it should not be issuing licenses where licenses are unnecessary. Certain municipal authorities have been slower than others to see that, at the end of the day, there really are no copyright issues to be worried about in these circumstances. I understand that the City of Calgary has recently come to understand that copyright law should not stand in the way of requests for copies of building plans. I understand that only the City of Ottawa remains unconvinced on this issue. Hopefully, the City of Ottawa will re-examine its position

The Board is suggesting that those needing copies of plans invoke freedom of information (a.k.a. “access to information”) laws to get these plans from municipalities. In Ontario, this would bring into play the Municipal Freedom of Information and Protection of Privacy Act R.S.O. 1990, CHAPTER M.56, which contains in s. 10 a provision that should not but may well add an additional road block to those who need copies of plans, namely a requirement to obtain the consent of the third party where the information is of a technical or commercial nature and was “supplied in confidence implicitly or explicitly...” Personally, I can’t see how it could be said that architectural or building plans or drawings would be “supplied in confidence implicitly or explicitly...”.

It remains to see how the City of Ottawa will respond. I understand that it is looking at the new situation and considering whether it will still require third party consent, now that the Copyright Board will no longer issue licenses. Hopefully, the City of Ottawa will conclude that reliance on the Copyright Board’s policy is safe - so that it can go about serving the needs of those who require copies of plans.

But meanwhile, as of today, the City’s website still says that:
To obtain copies of drawings, detailed plans and/or specifications, the applicant must provide the City with the written consent of the copyright holder. The plans submitted in support of a building permit application are the property of the designer and are not transferred to the property owner upon purchase.
If the City of Ottawa doesn’t come around, the Board may need to issue an even more explicit policy with more detailed reasons or a reasoned decision in a particular case, as it has done before. While this would not be binding in a Court, it might be influential in the minds of any remaining doubtful city solicitors. Hopefully, it will not be necessary for a taxpayer to fund litigation in order to get a judgment from a Court telling the City of Ottawa what it should do. Meanwhile, the public is now at the mercies of the Municipal Freedom of Information and Protection of Privacy Act R.S.O. 1990.

The Board is to be complimented for trying to solve a problem here - and for facing it head on by deciding not to continue to issue unnecessary licenses and thereby ignore the problem. The problem now lies at the municipal level and hopefully the Board will succeed in convincing the municipalities that there is indeed no problem at all. But municipalities are slow to change and don’t have a lot of expertise in copyright law.

The municipalities undoubtedly had good intentions and wanted to show respect for copyright. But respect for copyright is not served - and is indeed severely weakened - by unnecessary denials of access to the public to documents to which the public is entitled. We have seen too much of this lately from public institutions such libraries, archives, museums, schools, and indeed municipalities - public institutions that are too often failing to properly serve their public because they do not adequately understand copyright law and hide behind it under the rubric of “respect for copyright.” They often seem to find it easier to say “no” than to actually fulfill their mandate.


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