An e-petition on Crown copyright asked that government works made available to the public be free of copyright controls.
E-petition 1116 was drafted in 2017 with the intention of bringing the issue to the attention of Members of Parliament (MPs) as they began a 2018 review of the Copyright Act. The e-petition closed on September 23 after receiving almost three times the number of signatories required for certification (and from all provinces and territories). It was tabled in the House of Commons by its sponsor, MP Sheri Benson (Saskatoon West), on October 20.
Government of Canada response to e-1116
On December 4, 2017, the Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development (ISED) and Sean Casey, the Parliamentary Secretary to the Minister of Canadian Heritage (PCH), responded to the e-petition.
In addition to recognizing that parliamentarians would have an opportunity to revisit provisions related to Crown copyright as part of the then upcoming review of the Copyright Act, the Government of Canada also stated the following concerns related to removing the “all rights reserved” model of copyright for government works: cost recovery; accuracy and quality.
Both PCH and ISED stated that some agencies rely on cost recovery to finance the production of government information and appeared to use this as a rationale for maintaining Crown copyright.
Taxpayers have already paid for the production of government information and shouldn’t have to pay twice to access it, or for the ability to reuse that content.
Assuming a cost recovery model is justified for commercializing government works (and I am not suggesting that it is), what is the rationale for enforcing copyright to limit the use of government works that have been published and distributed at no cost, and what is the rationale for continuing to enforce copyright to limit the use of government works that have been made commercially available after the costs of producing that content have been recovered? If cost recovery is the rationale for retaining Crown copyright in works, then why not make openly available all works that never have been or are no longer being distributed commercially on a cost-recovery basis?
Accuracy and Quality
Both PCH and ISED noted the complex nature of Crown copyright, but did not explain how it is any more complicated than copyright for other works. They went on to state that there is a need to “strike a balance” between access to information needs and “other public interest considerations.” Quality and accuracy are listed as those other public interest considerations.
Copyright is not a tool for ensuring accuracy or quality. Copyright does not address quality issues in any way and the only way copyright protection ensures accuracy of the original in subsequent reproductions is if that mechanism somehow allows for the complete control of every instance of distribution of the work and prevents any subsequent modifications, adaptations, or translations. Not only is this type of gatekeeper overreach impossible in an online environment, it would also be illegal (see Section III of the Copyright Act, Exceptions to Infringement) and is clearly at odds with the aims of Open Government.
Both PCH and ISED reaffirm a commitment to Open Government. The Open Government Declaration prioritizes the need for access to government information and the Open Government Partnership references a definition of “open” as being material that can be freely used, reused, and redistributed by anyone.
A fee-based access model for government information is at odds with both the aims of open government and the moral imperative of governments to provide barrier-free access to (non-sensitive) government information.
Both PCH and ISED spoke of the role of Crown copyright in striking a balance, which is at the core of copyright law. The exceptions to infringement found within the Copyright Act are intended to provide a balancing mechanism between the needs of rights holders and the public good. This makes sense when economic protections are of paramount importance. With respect to government information, a more relevant balance, between access and security, is achieved through the exemptions and exclusions found in freedom of information legislation, not through the enforcement of Crown copyright.
Full text and context for e-petition 1116
Canadians have a right to use and re-use works produced by their government. Unfortunately, because of our outdated system of Crown copyright, such uses are unduly restricted. See s.12 of the Copyright Act http://laws-lois.justice.gc.ca/eng/acts/c-42/ (also below for ease of reference).
- access to government information and the ability to distribute and encourage its re-use is of fundamental importance to a democratic society, as noted in the Reproduction of Federal Law Order, SI/97-5 http://laws.justice.gc.ca/eng/regulations/SI-97-5/FullText.html),
- the Government of Canada is committed to open government principles (http://open.canada.ca/), which support the broad and unfettered dissemination of government information,
- the Government of Canada believes that (commercial) exploitation of IP contributes to economic growth and job creation, and that such exploitation is best achieved outside of government (as noted in TBS Policy http://www.ic.gc.ca/eic/site/068.nsf/eng/00005.html), which seems to indicate a willingness for those outside government to use government information without first asking for permission,
- academic library projects to preserve and provide access to government works have been delayed or prevented due to confusion over Crown copyright (e.g., Canadian government publications restricted in HathiTrust, hundreds of hours spent trying to obtain permissions, only some of which were successful, etc.); see Wakaruk (2016), noted in the Resources section, below,
- objectives of copyright law do not apply to publicly disseminated government works given that such works are created by public organizations for the benefit of the public (as per the Supreme Court of Canada in Théberge v. Galerie d’Art du Petit Champlain and CCH v. LSUC, which state that the objective of the law is to balance the incentivization and rewarding of creators with the encouragement of disseminating works in order to benefit society); put another way, why do governments need economic protections to encourage the production and dissemination of publications that are produced to inform Canadian residents and citizens about the programs and services of their own government?,
- the Government of Canada almost never pursues Crown copyright infringement claims (e.g., see Sessional paper 8555-412-57, tabled December 4, 2013, House of Commons),
- not all government works are intended for broad dissemination, which is why this e-petition is not calling for the outright abolishment of Crown copyright, even though this is a laudable goal and has been recommended by legal experts,
- some works published by government agencies are authored or prepared by third parties, which might restrict them from being distributed outside of government,
- the Reproduction of Federal Law Order is limited to federally-constituted courts and administrative tribunals, which means it is unhelpful when librarians, journalists, citizens, or corporations want to reproduce government works that are not part of the federal law (e.g., statistical and annual reports, maps, policy papers, etc.),
We the undersigned call upon the House of Commons to add Section 12.1 to the Copyright Act:
12.1 Works noted in section 12 are no longer protected by copyright upon being made available to the public.