By Stanley Tromp, Vancouver Sun,
________________
Far from being the most open
province in Canada, as Premier Gordon Campbell pledged, British Columbia has
become the least open in one sense.
Besides undermining the B.C. Freedom of Information and
Protection of Privacy Act in countless ways, including passing regressive
amendments and regulations to it, the provincial government has gone a step
further.
Now it is attempting to block
the publication of records by an FOI applicant even after releasing them, a
potential tool of censorship that is invoked nowhere else in the world as far
as I can find.
On Sept. 13, 2000, Chris
Norman, director of the B.C. government's information and privacy branch
(CPIAB), sent an internal memo to all ministerial FOI directors, in which he
reported that the attorney-general's ministry had "raised the issue of
Crown copyright." CPIAB then met with the Intellectual Property Program
"to determine the best method of asserting Crown copyright in FOI
releases."
Soon afterward, I was
perplexed to receive "notices" slipped inside packages of documents
mailed to me in response to some of my FOI requests. These letters warned me
that: "These records are protected by copyright under the federal
Copyright Act, pursuant to which unauthorized reproduction of works is
forbidden."
If I wanted to redistribute
even a portion of these records, I would have to send a special request (which
could be denied) to the IPP, and also pay up. The implicit threat that I could
be sued for non-compliance was clear.
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.
After several years of this
process, I complained to B.C.'s information and privacy commissioner, David Loukidelis, an inquiry was begun, and a ruling is expected.
Yet for the past few months,
a low-key but earnest power struggle has been going on in Victoria, for the
attorney-general's ministry has tried to shut down the inquiry entirely. Last
December it challenged the commissioner's jurisdiction to investigate my
complaint, claiming he may only rule on FOI issues but not on Copyright Act
matters. The outcome of that dispute is uncertain.
The public and the media have
a common interest in confronting this problem, for it may affect our ability to
report the news. For one thing, it could affect newspapers that have lately
begun posting original government documents, obtained through FOI, on their
websites as appendices to their articles.
I could cite hundreds of
examples of government records obtained through FOI by the Canadian media or
interest groups, which were then published in news stories for the public
interest -- reports on the abuse of persons in nursing homes, public health
risks, crime trends, hidden pollution and gross misuse of public funds.
It was FOI requests for
internal audits by the media, that published them, that eventually revealed the
Quebec sponsorship scandal and led to the Gomery
inquiry. The government could have claimed its assumed royal prerogative and sent
out copyright notices forbidding applicants to publish these records without
permission.
The Australian Copyright Law
Review Committee report of 2005 stated: "There is great danger in the
possibility of government using copyright as an instrument of censorship,"
and noted it had already been applied in 1996 regarding the unauthorized
release of a police video.
Worse, Crown copyright
notices are now sent to some FOI applicants but not others, with no discernible
pattern. Thus, on copyright lawsuits, because there are far too many FOI
publishing "violations" to sue on them all, the government would be
able to pick its legal actions arbitrarily, potentially for certain political
objectives, and justice applied unequally is injustice. Although such notices
have been generally ignored so far, this could change.
This practice appears to be a
made-in-B.C. innovation, for the federal information commissioner's office in
Ottawa said it had never heard of such letters being sent out under Canada's
Access to Information Act. Nor have any of the provincial commissioners under
their provincial access laws. After studying foreign FOI statutes and practices
for the past year, I was unable to find Crown copyright notices mentioned in
any other nation. Indeed, Section 105 of the U.S. Copyright Act says that
copyright protection is not available for any work of the United States
government.
To be fair, the practice of
sending such notices in B.C. began during the administration of NDP premier
Ujjal Dosanjh, yet the current Liberal government has chosen to continue it.
Free publication of such records was surely the basic intent of the B.C.
legislature in passing the FOIPP Act. Such copyright threats might also violate
the Charter of Right's guarantee of free speech.
The whole matter was best
summed up in a scathing critique by former federal information commissioner
John Grace, who called Crown copyright a "repugnant, and perhaps even
unconstitutional" practice that "richly deserves to be
challenged."
Grace concluded that
"Crown copyright by another name is political or bureaucratic
control," and he asked: "In the context of Crown copyright, who is
the Crown if not the people?"
____________________________
[POSTCSCRIPT. The next year, the dispute was resolved, as noted in the letter below:]
Office of the
Information and Privacy Commissioner for
Dear
Complaint—Duty required by Act—Ministry of Transportation
and Infrastructure
(“Ministry”) File TRA-06-158—OIPC File F07-31 011
I am writing about your complaint that the Ministry included
a copyright advisory notice with its disclosure of records in response to your
access request under the Freedom of Information and Protection of Privacy Act
(“FIPPA”).
As part of our investigation of your complaint, I had
discussions with the ministry responsible for intellectual property within
government, the Ministry of Labour and Citizens’
Services. Government has decided to cease including copyright notices in access
to information disclosures and has confirmed that, effective immediately and
government-wide, copyright notices will no longer be issued in conjunction with
disclosure of records in response to access requests under FIPPA.
The Province has advised us, for clarity, that the fact that
it will no longer include copyright notices in FIPPA disclosure packages does
not change the fact that it “reserves the right to assert and/or enforce
copyright in its materials in appropriate cases, including situations where such
material is subject to an existing legal obligation of the Province (i.e., a licence) or someone makes copies of something purporting to
be the official version of Provincial material, but which is out of date, and
distribute those copies to others, thus creating the potential for inconvenience,
or worse, to third party recipients of that material.”
I appreciate the government’s willingness to revisit this issue
and applaud its decision to change its policy on the matter.
In view of this development, we will be closing our file
relating to your complaint. I appreciate your having brought this matter to my
attention and thank you for your contributions to its successful resolution.
Yours sincerely,
David Loukidelis,
Information and Privacy Commissioner
for
----------------------------------------------