This week, VisibleGovernment.ca launched a last-minute campaign to solicit submissions to Canada’s copyright consultation process asking for Crown Copyright reform.
This may seem like an esoteric issue: but crown copyright is a constant legal threat to citizen projects that use and share government information. It’s an issue that we run up against regularly here at VisibleGovernment.ca, and one that, ultimately, hurts all Canadians. Here are some examples of how:
1. First: Send the Lawyers.
Crown Copyright includes ‘Fair Use’ provisions that are meant to protect Canadian’s ability use information in a way that is consistent with public good. However, these provisions are routinely interpreted by government lawyers in only the most narrow sense.
As described by Michael Geist, in 2007, the group Friends of Canadian Broadcasters were sent a legal notice to cease and desist publishing videos of parliamentary committee proceedings on their website. According to government lawyers, re-publishing unaltered videos put the group in contempt of Parliament.
FoCB challenged the finding, and managed to extract a special, ground-breaking exemption from a Parliamentary committee which allows all forms of recordings of parliamentary proceedings to be re-used and re-distributed – as long as they are unaltered, and not used for commercial purposes.
FoCB is to be commended. Many groups, when faced with a potential lawsuit, would have backed down. Instead, it stood up for what should have been obvious to even government lawyers – that this information belongs to the public. Unfortunately, the new exemption allowing re-distribution of Crown Copyright material only applies for this one type of government information.
2. Crown Copyright Promotes Information Monopolies.
In the US, the watchdog website fedspending.org (whose influence on the US government is described in more detail here) posts statistics on the government contract tendering process. For instance, users can look at a particular company, such as Boeing, to see how many of its contracts were awarded without a bid process. The website helps citizens, and other companies, spot unfair practices in contract tendering.
In Canada, this same information is distributed via Merx, who holds exclusive agreements with many departments and agencies. The information is only viewable before a contract is awarded – after which it disappears. After a delay of several months, the awarded contract may show up on a federal disclosure sites, but not in a way where it can be easily traced to its tendering process.
As described by a contributor to our discussion group, the company behind Merx is prepared to vigorously defend its contract agreements as the exclusive provider of this information. Any group that uses Merx’s information – information which originates in our public institutions -- is opening the door to an expensive lawsuit. This application of Crown Copyright, which provides Merx with an apparent information monopoly, is a barrier to replicating fedspending.org in Canada.
3. Open Source? Not if our Government Touches It.
This spring, at an Ottawa conference where governments share their web 2.0 innovations, I watched a demo of custom software for sharing internal information that a department of the Government of Ontario had cobbled together from a combination of open source components.
The conference was attended by representatives from different municipal, provincial, and federal governments, and it seemed likely that some of them could also make use of the software improvements done by this team. Indeed, the gist of the presentation was ‘We did this – you can do it too.’ I asked: since the software was constructed on an open source base, would they be releasing their modifications back to the community so that they could be adopted by other governments directly? The answer was that they wanted to, but it was ‘with the lawyers’. Because the work was produced by provincial employees, it was protected by Ontario Crown Copyright and could not be released.
This was actually the second project I heard of at the Government of Ontario that wanted to be open source, but was held up at the legal stage. That project had been ‘with the lawyers’ for over a year. Meanwhile, the software lingers, unshared, and unused by other governments. The lawyers apparently have other priorities.
Earlier that day, a visitor from a US government department had shown some custom software his agency had built to visualize the dynamics and movement of fires. Their software was open source, and hosted on Google Code. He estimated that about 40% of their contributions came from members of the public. When asked what the software license was, he said ‘Public Domain’ – as all works by US government employees are not copyrightable. He seemed surprised by the question, as if it were inconceivable that things could be any other way.
4. Models for Change
Other countries are reforming Crown Copyright to promote access to and sharing of government information. In February, 2009, the UK government’s Power of Information Task Force final report found that Crown Copyright was a major barrier to the re-use of Public Sector Information, and recommended that Crown Copyright be changed to a ‘Crown Commons’ license to encourage re-use.
The UK government is following up on this recommendation: Tim Berners-Lee, the inventor of the word-wide web, is one of the people tasked with creating the new Crown Commons license.
New Zealand has gone one step further. In a recent published draft, the state has proposed getting rid of Crown Copyright entirely. Wherever Crown Copyright would be used, Creative Commons Attribution (CC-BY) would be used instead. The proposal argues:
“Now more than ever is there a very present need to bring information the Government holds on behalf of its people into the public domain so that it may be used in ways that stimulate innovation, generate cultural creativity, social interaction and dialogue, while also kick starting economic growth.”
Reading this recently released New Zealand proposal has inspired us to action. Already, some Canadian departments are bravely inventing their own licenses for sharing information. In other situations, like parliamentary proceedings described above, exceptions are being made on an expensive, case-by-case basis. The system should be changed to favour allowing the re-use of government information by default, rather than by exception.
It so happens there is a copyright consultation going on right now in Canada. While the public focus so far has been almost entirely on digital rights and its impact on the music industry, this is a unique opportunity to submit your views on Crown Copyright.
We’ve prepared a draft submission, modeled directly on Vancouver’s recent Open Data, Open Standards, Open Source motion (Open3), which you can use to either send as is, or modify to express your own views. The important thing is that you speak up -- we may not get another chance for some time.
