Weird Warnings on FOI Materials

Congratulations! The B.C. government -- the one that promised to be "the most open, accountable and democratic government in Canada" -- has just granted your freedom of information request.

You open the package of documents and find a notice that seems to say you can't make the information public without the government's permission.

"Permission of the copyright holder" -- that would be the B.C. government -- "must be obtained prior to any reproduction, dissemination or sale of these records (including the posting of such records on the Internet). If you wish to reproduce a record or portion of a record that is subject to Crown copyright, you must send a copyright request to the Province's Intellectual Property Program."

Huh?

In the eyes of the Freedom of Information and Privacy Association, this notice is both intimidating and legally questionable. About a year ago, FIPA and researcher Stanley Tromp filed a complaint with B.C.'s information and privacy commissioner.

A decision is not expected for a few months yet.

'It stomps you down'

In recent years, Canadian governments have become increasingly willing to assert Crown copyright -- the notion that government owns the information it collects on behalf of its citizens and can block those citizens from using that information without the government's permission. It's a concept that free speech advocates describe as an archaic tool of censorship fundamentally at odds with the spirit of open government.

As Tromp has written, "The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling."

FIPA official Vincent Gogolek argues that the impact of the copyright notices is even greater on the average person who files an FOI request.

Members of the media can afford to hire their own lawyers, who will tell them to ignore the notices, Gogolek said.

"But if you're the Kamloops Culture Collective and your website is run from a Tandy 64 from your trailer, you don't have access to a lawyer," he told The Tyee. "It completely stomps you down."

'Am I going to get sued?'

Gogolek said that, by sending out these notices, the government is saying, in effect, "Here's the stuff that you managed to beat out of us.... By the way, this letter and all of this stuff that we're sending to you is subject to Crown copyright. So you cannot in any way use this, including putting it up on the Internet... without the permission of their intellectual property office.

"I guess you're supposed to sit in your rec room and peruse these quietly."

Said Gogolek: "The average person looking at this goes, 'Oh my God. Can I even show this to somebody? Dissemination? What does that mean? Am I going to get sued like the downloading kids?'

"It just creates this whole atmosphere of fear."

After all, Gogolek says, the penalties for violating the Copyright Act can be onerous.

Copyright claimed 'case by case'

A spokesperson for the Ministry of Labour and Citizens' Services said that the government has been sending the notices out since 1999.

Notices are sent out on a "case-by-case basis" when ministry staff feel a copyright issue might arise, he said.

Under Crown copyright, people can summarize or comment on the information contained in government documents, but they can't reproduce the material, the spokesperson said.

"There's nothing to prevent news media or others from commenting on the information from a FOI request," he said. "The copyright applies to the reproduction of the material, not the use of the information."

Asked about the use of the word "disseminate" and the prohibition against posting records on the Internet, the spokesperson replied that the language is likely taken from the federal Copyright Act.

The notices are "not meant to discourage access requests or the use of the information that is produced in those requests," the spokesperson said. "They're there to kind of proactively remind recipients that the documents in that release may be protected by the federal Copyright Act."

"They sound like Tony Soprano," Gogolek said, adopting a sinister Jersey accent. "I don't want anything bad to happen to you. I'm just giving you some friendly advice."

Little to fear: BC official

Cases of copyright infringement stemming from FOI requests are very rare and are usually resolved informally, the government spokesperson said.

Gogolek said there are fewer than five cases a year involving use of government materials contrary to the Copyright Act. That covers all use of government materials -- not just FOI requests.

"If this is the identified mischief the copyright notice is aimed at correcting, it is so tiny as to be virtually non-existent," Gogolek said.

The government has argued that David Loukidelis, the information and privacy commissioner, does not have the jurisdiction to hear FIPA and Tromp's complaint. The Copyright Act is federal legislation, the government argues, which puts it beyond the reach of Loukidelis, a provincial official.

Waste of money?

Michael Geist, a University of Ottawa law professor and Tyee columnist, has written extensively about Crown copyright at the federal level.

He thinks it should be scrapped.

Recently, Geist wrote that "Crown copyright costs Canadians hundreds of thousands of dollars while being used as a tool to suppress public criticism of government programs."

Federal government documents show that in the 2006-07 fiscal year, Crown copyright licensing cost more than $200,000 to administer while bringing in less than $7,000 in revenue, Geist wrote.

"Ninety-five percent of Crown copyright requests are approved, with requests ranging from archival photos to copies of the Copyright Act. More troubling are the five per cent of cases where permission is declined.

"While in some instances refusals stem from the fact that the government does not have rights in the requested work, government documents reveal that some requests are declined for what appear to be politically motivated reasons.

"For example, an educational institution request to reproduce a photo of a Snowbird airplane was denied on the grounds that the photo was to be used for an article raising questions about the safety of the program. Similarly, a request to reproduce a screen capture of the NEXUS cross-border program with the U.S. was declined since it was to be used in an article that would not portray the program in a favourable light."

'Capriciously and arbitrarily invoked'

One of the strongest criticisms of Crown copyright came from John Grace, the former federal information commissioner.

In his 1991-92 annual report, Grace wrote that up to that point governments had not bothered to enforce Crown copyright.

"The whole quaint notion has been all but dormant," he wrote, "ignored under the reasonable assumption that what the government produces for the public with public funds is in the public domain."

As far back as 1985, a parliamentary committee recommended that government information should be considered to be in the public domain. But the government took the opposite approach, Grace said.

"Crown copyright is capriciously and arbitrarily invoked," he wrote. "In particular, Crown copyright makes no sense in an era of expanding government databases when records are held electronically..."

Wrote Grace: "From an information commissioner's perspective, the concept of a perpetual Crown copyright in any field richly deserves to be challenged. It is an antique curiosity essentially incompatible with the government's own stated information policies and the spirit of the Access to Information Act. It is an impediment to wide and easy distribution of government information."

One of the reasons Canada has an access law, Grace wrote, is to take decisions about what information can be released out of the hands of politicians and bureaucrats.

"Crown copyright is a residual remnant of the bad old way."

US does it differently

In the U.S., government information is specifically exempt from copyright.

"As a result, anyone can use a U.S. government publication in any way he or she sees fit," Grace wrote. "No restrictions (except for reasons of security); no royalties; no attribution necessary."

Asking "who is the 'Crown' if not the people?" Grace argued that "the fundamental principle remains: the public interest is best served by keeping government-produced information as free as possible from restrictions on dissemination."

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