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Open Government: My Appearance Before the Standing Committee on Ethics, Accountability & Privacy

By Michael Geist

Last week I had the opportunity to appear before the Standing Committee on Ethics, Accountability & Privacy to discuss open government. My comments - and many of the questions that followed - focused on crown copyright and access to information.  The committee hearing stream can be found here.  My opening statement is posted below.

Appearance before the Standing Committee on Ethics, Accountability & Privacy
December 9, 2010


Good afternoon.  My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I currently serve on the Privacy Commissioner of Canada's Expert Advisory Committee and the boards of the Canadian Legal Information Institute, funded by Canadian law societies to provide free access to law, and Canarie, Canada's advanced research and information network.  I am also the editor of this new book on Canadian copyright and Bill C-32, which includes several contributions that focus on access to public sector information and data.

I appear before this committee today in a personal capacity representing only my own views.

I'd like to begin by thanking the committee both for the invitation and for taking on the open government issue. At a time when a digital economy strategy is gaining increasing attention, it is crucial to recognize that the federal government has an important role to play in the digital content realm by ensuring that its own content - or content produced on its behalf - is readily and freely available in digital form. After years of closed, "walled garden" approaches, the world is embracing the benefits of openness.  As you know, a growing number of Canadian cities have adopted openness policies that establish a preference for open standards, open source software, and open government data. 

I believe the federal government should follow their lead. A full open government initiative would include commitments to making as many datasets freely available as possible, the adoption of open licencing models, and improving access to information.  We've seen other countries do it and do it quickly. 

In the United States, there were 47 data sets available to the public in May 2009.  Today, about a year and half later, there are 274,000 data sets available. 

In Australia, the government launched the Government 2.0 task force in June 2009, the task force completed its work and the government responded by May 2010 - less than one year. 

The U.K. launched data.gov.uk at the start of this year.  Today, there are over 5,300 data sets freely available and over 100 apps that use the data to provide information on fuel and housing prices, air quality, and government spending.

Rather than focusing on the impressive achievements elsewhere, I'd like to concentrate my opening remarks on what might be seen as "low hanging fruit" - two easy, low or no-cost initiatives that could jump start open government in Canada - crown copyright and CAIRS.

Crown Copyright

First, the issue of crown copyright. Dating back to the 1700s, crown copyright reflects a centuries-old perspective that the government ought to control the public's ability to use official documents.  Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission.  While permission is often granted, it is not automatic. To obtain permission, the author or publisher is required to provide details on the intended use and format of the work, the precise website address if the work is to appear online, as well as the estimated number of hard copies if the work is to be reprinted.  If the work is to be sold commercially, the publisher is required to disclose the estimated selling price.

The Canadian approach stands in sharp contrast to the situation in the U.S. where the federal government does not hold copyright over work created by an officer or employee as part of that person's official duties.  Government reports, court cases, and Congressional transcripts can therefore be freely used and published.

The existence of crown copyright affects both the print and audio-visual worlds and is increasingly viewed as a barrier to Canadian film making, political advocacy, and educational publishing. Beyond the policy reasons for abandoning crown copyright, there are financial reasons for reforms.  The federal crown copyright system costs taxpayers hundreds of thousands of dollars each year.  According to documents I obtained under Access to Information from Public Works and Government Services Canada, which administers the crown copyright system, in the 2006-7 fiscal year, crown copyright licensing generated less than $7,000 in revenue, yet the system cost over $200,000 to administer. In most instances, Canadians obtain little return for this investment.  Ninety-five percent of crown copyright requests are approved, with requests ranging from archival photos to copies of the Copyright Act.

More troubling were the five percent of cases where permission was declined.  While in some instances refusals stemmed from the fact that the government did not have rights in the requested work, there was an instance where 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.

The ability to wield crown copyright has also arisen with actual takedown notices.  For example, last year the Auditor General sent takedown demands to the Globe and Mail and Scribd, an online publishing site, after the paper posted one chapter from her report. The office argued that crown copyright applies and that a written request for permission on a case-by-case basis is required.  Leaving aside the fact that this is arguably fair dealing - it is news reporting and consists of one chapter from a much larger report - the very notion that Canadians need advance permission to post a portion of government report runs counter to the Auditor General's own efforts at government transparency and efficiency.

Similar issues may arise in the context of video, even of these proceedings. In the spring of 2007, Friends of Canadian Broadcasting, the well-known broadcasting advocacy group, began to post videos and podcasts of Parliamentary committee proceedings on their website.  When officials at the House of Commons caught wind of their activities, they promptly sent a cease and desist letter, demanding that the videos and podcasts be removed from the Internet.  A lawyer for the House of Commons argued that posting excerpts from committee proceedings could be treated as "contempt of Parliament."

In an ideal world, it would be the Bill C-32 Legislative Committee that would be addressing this issue since the abolition of crown copyright - as New Zealand has proposed doing - would have been part of the copyright reform package.  Since it isn't, we should consider following the Australian model of leaving Crown copyright in place but overlaying it with an open licence approach.

This means that the government still maintains copyright, but freely licences the work for re-use with no need for further permissions or compensation - only attribution is required.  Similar approaches have been adopted in the UK, which has seen the development of an Open Government licence, while others have called for the creation of Crown Commons Licence.  Whatever it is called, the approach would provide an efficient means of freeing up government works without the need for legislative change.

CAIRS

Secondly, briefly on CAIRS and access to information. As this committee knows, in 2008, the CAIRS database, which provided information on prior Access to Information requests was discontinued.  This committee passed a resolution calling for its reinstatement and the Information Commissioner has done the same.

In 2009, I launched CAIRS.Info, a site that provides access to searchable PDF copies of the same information that was contained in the CAIRS database. Requests are sent to most government departments each quarter for a list of the most recent access to information requests. The resulting documents are uploaded and can be searched by government department, date of the request, or keywords within the requests.

The site is still available, but now out-of-date.  It has proven difficult to maintain, given the need for quarterly requests to dozens of government departments, followed by digitization and uploading of the materials.

The solution is obvious - not only should we reinstate CAIRS, but we should make the records from all access to information requests freely available online in machine readable format. This follows the UK example.  In October of this year, Cabinet Office minister Francis Maude told a Conservative party conference that the Freedom of Information Act will be amended so that all data released must be in a reusable and machine readable format. The change in the law will mean that Freedom of Information data is "available to everyone and able to be exploited for social and commercial purposes."

I believe the closest we come to this is the Department of National Defence, which lists all completed Access to Information requests on its website and invites the public to request a copy informally at no cost.  That's a start but not as good as we can and should do.

Conclusion

In conclusion, this is by no means the full solution but rather a modest starting point.  There is open data, open access to research, open source software initiatives, and many other possibilities. Like many others, I believe that our goal should be to maximize open government.  In doing so, we reduce costs, unleash economic value, increase transparency, and generate greater public confidence and interaction with our democratic institutions.  I look forward to your questions.

Full post as published by Michael Geist on December 13, 2010 (boomark / email).