Redefining “work for hire”

A recent post to the ThinSkull Blog at highlights a case in Canada which takes the concept of “work for hire” as it relates to copyright and quite literally turns it upside down.

From the post:

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…

According to the court, if you’re in prison, you are [a federal employee], 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.

Prison has two separate and distinct roles: punishment and rehabilitation. Unless a defendant is serving a sentence of life without parole or a sentence which will not expire until after the defendant does, rehabilitation cannot be ignored. Yet that is exactly what has happened here.

I find the notion that John was considered “an employee of the Crown” (what they call the government in Canada) ludicrous. The money John made from selling that painting would certainly help his rehabilitation quite a bit. It would also teach him a valuable lesson about making money in the world of honest people and decent society, a lesson that I wish more ex-felons were eager to learn.

Instead, the Canadian government has chosen to stunt John’s rehabilitation using a quite elastic interpretation of “work for hire” as it relates to copyright. The chilling effects here will be obvious: prisoners will simply resort to concealing their artistic works while serving their sentences and will be more clandestine about pocketing the profits. In short, the Crown is encouraging known criminals to keep acting like criminals, a dangerous and short-sighted move.

Shame on you, government of Canada. This galactically stupid leap of “logic” is due to set criminal justice back decades if not over a century.