Private Law Arrives

March 10th, 2016

We have our first Federal Court verdict in the Canadian Standards Association (CSA) vs. PS Knight litigation.

On March 8, 2016, the Federal Court of Canada issued a Decision in the CSA vs. P.S. Knight case which alters the common and historic understanding of the ownership of Federal and provincial law.

The Court ruled that text submitted to government by non-government parties for inclusion within legislation remains the private intellectual property of the originator or copyright assignment holder for that text, provided that the drafting of that text was not conducted under the direction of government.

As most legislation includes text voluntarily drafted by interested parties and their representatives, the text covered by the Court ruling represents the majority of Federal and provincial legislation in Canada.

Specifically, the Court has determined that for the Crown to enjoy ownership control of the text of legislation, that text “must have been ‘prepared or published by or under the direction of Her Majesty or any government department’.” Further, the mere inclusion of non-governmentally drafted text within legislation “does not constitute preparation or publishing by the government or under their direction.”

Additionally, the Federal Minister of Industry, James Moore, on the strength of CSA’s copyright assignments, “acknowledged in open Parliament that the CSA is owner of copyright” in the Electrical Code, being the body of electrical law in Canada.

On this basis, the Court Ruled that “it would contrary to a purposive construction of the Copyright Act to strip the CSA of its rights in the [ Code ] simply because certain provinces have incorporated it into law.”

Therefore, with all such legislation, “copyright does not belong to the Crown.”

We will obviously appeal this decision. The notion that domestic laws are privately owned by whomever drafted or lobbied for them is, in our view, an affront to the dignity of democratic society.

The verdict also introduces some awkward issues. Peter Knight contributed to every revision of electrical law through several decades, and in March, 2015 he assigned his copyright in his contributions to the Code to PS Knight Co. In this, based on the Ruling of the Court, PS Knight Co privately owns a significant portion of Canadian electrical law.

Beyond PS Knight’s interests, the Ruling means that every publication which quotes from legislation that incorporates the contributions of citizens, lobbyists, etc. is now violating the private property rights of those persons who had contributed to that legislation.

Every legal publishing house in Canada is affected. Carswell Publishers, LexisNexis, Thompson Reuters, Evan Ross, Martins –all of these extensively quote from domestic law in their commentaries on domestic law.

Probably the most jarring consequence of this Ruling is the scale of popularization of the private ownership of law. Right now there are more than five thousand, seven hundred persons, companies, unions, etc. registered to contribute to Federal legislation. Each of these 5,000+ entities now enjoys ownership and control of the portions of law that they contributed to. The result is a byzantine patchwork of conflicting private property in what was formerly considered public law.

In this context, an appeal should be an easy win, but by this logic there should never have been a loss. The sad reality is that a succession of political figures, civil servants and complacent companies have preferred to sit on the sidelines than enjoin the fight. The Court has interpreted their non-action as tacit approval. It’s a legacy of disappointing and quiet collusion, and there is every chance that this legacy will sink our chances on appeal.

In the immediate, nothing changes for PS Knight Co Ltd. If this verdict is affirmed on appeal then it will be illegal for us to refer to privately owned electrical laws in our publications and that, of course, would be the end of our fifty-year old family business.

Thank you for all your support over these last four years. This isn’t the result any of us expected or desired, but the fight isn’t over yet. Our responses to the Court and to the various affected levels of government are already underway. As always, we will update this site with developments.