Prisoner’s copyright

By Pulat Yunusov

Inmate rights are a lost cause for an average politician. If anything, legislators are more likely to push for harsher sentences, more hurdles to parole, and less money for rehabilitation. Of course, history knows prisoners who survived jail through spirituality or by creating works of arts. But one Canadian court case shows that the state may deprive prisoners even of their rights to intellectual property created in the slammer.

John Hawley was sentenced to ten years in prison for armed robberies committed in his mid-twenties. After he was released on parole, John started a “successful commercial art and design studio in Toronto” (Hawley v. Canada, [1990] F.C.J. No. 337). When he served a part of his sentence in Frontenac Institution, a minimum security prison, he created a large painting entitled “Mount Whymper.” This work of art became the subject of a lawsuit he brought against the federal government claiming copyright in “Mount Whymper.”

The Federal Court denied his claim. It found that John was an employee of the Crown at all material times. The judge looked at some of the traditional factors showing supervision and control of John’s work by the prison authorities. He found that John had a work supervisor and that he painted as part of his prison employment. Section 13(3) of the Copyright Act is unambiguous in denying an otherwise strong protection of the creator in cases of works produced in the course of employment. The employer is the IP owner, period.

But was John really a federal employee? According to the court, if you’re in prison, you are, at least for the purposes of IP ownership. It ultimately doesn’t matter that your employment is forced and that your spare time is artificially limited and controlled. To quote the judge: “Frontenac Institution policies, as found in similar institutions, provide only circumscribed conditions under which an inmate can profit or gain from his own labours exerted during leisure hours.” It looks like the flip side of prison rehabilitation is coerced federal employment and consequent government ownership of any works of art created by the inmate.

Oscar Wilde wrote De Profundis in gaol. Aleksandr Solzhenitsyn composed poems in the Gulag. If they did it in Canadian correctional institutions, would our federal government claim copyright in their works too?

Pulat Yunusov

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