The Standing Committee on Industry, Science and Technology has commenced the hearings on Canada’s science and technology policy. There are a handful of submissions online including CIPPIC, Russell McOrmand, the BCLA, and the Canadian Association of Broadcasters. My submission is posted below:
Submission to Standing Committee on Industry, Science, and Technology
Study on Canadian Science and Technology
I am a law professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Internet and E-commerce Law. I am also a syndicated weekly columnist on law and technology issues for the Toronto Star, the Ottawa Citizen, and the Vancouver Sun. I served on National Task Force on Spam struck by the Minister of Industry in 2004 and on the board of directors of the Canadian Internet Registration Authority, which manages the dot-ca domain name space, from 2000 – 2006. I submit the following comments in response to the Committee’s request for briefs on Canadian science and technology. In addition to this brief, I request the opportunity to appear before the Committee to discuss the issues raised herein. My comments are submitted in my personal, scholarly capacity and represent only my own views.
The Committee’s request for comment raises two issues that fall within my area of expertise.
1. Federally funded research performed in government and higher education
A. “Open Access” Mandates
For years, the Canadian research model remained relatively static. Federal funding agencies in the sciences, social sciences, and health sciences dole out hundreds of millions of dollars each year to support research at Canadian universities. University researchers typically publish their findings in expensive, peer-reviewed publications, which are purchased by those same publicly-funded universities.
The model has certainly proved lucrative for large publishers, yet it has resulted in the public paying twice for research that it is frequently unable to access. Cancer patients seeking information on new treatments or parents searching for the latest on childhood development issues are often denied access to the research they indirectly fund through their tax dollars.
The emergence of the Internet dramatically changes the equation. Researchers are increasingly choosing to publish in freely available, open access journals posted on the Internet, rather than in conventional, subscription-based publications. The Directory of Open Access Journals, a Swedish project that links to open access journals in all disciplines, currently lists more than 3,300 open access journals worldwide featuring over 179,000 articles.
Moreover, the cost of establishing an open access journal has dropped significantly. Aided by the Open Journal System, a Canadian open source software project based at Simon Fraser University in British Columbia, more than 1000 journals, many in the developing world, currently use the freely available OJS to bring their publications to the Internet.
For those researchers committed to traditional publication, open access principles mandate that they self-archive their work by depositing an electronic copy in freely available institutional repositories shortly after publication. This approach grants the public full access to the work, while retaining the current peer-reviewed conventional publication model.
While today this self-archiving approach is typically optional, a growing number of funding agencies are moving toward a mandatory requirement. These include the National Institutes of Health in the United States, the Wellcome Trust in the United Kingdom, and the Australian Research Council. Indeed, last year the Federal Research Public Access Act was introduced in the U.S. Congress. The bill requires federal agencies that fund over US$100 million in annual external research to make manuscripts of peer-reviewed journal articles stemming from that research publicly available on the Internet.
Canadian funding agencies have only recently begun to catch-up to their counterparts. In 2008, the Canadian Institutes of Health Research implemented a new policy that requires all grant recipients to make every effort to ensure that all publications are freely accessible through the publisher’s website or an online repository within six months of publication. The online repository approach – often referred to as “self-archiving” – relies on smart search engines to index millions of articles and make them easily accessible with the right search query. Moreover, CIHR already makes clinical trial data available.
The policy will help ensure that five percent of the world’s health research scholarship – tens of thousands of articles (CIHR funds approximately 5,000 researchers annually producing as many as 30,000 articles) – are generally freely available. This benefits the researchers, whose work becomes more widely read and cross-referenced, as well as the general public.
While the CIHR policy change is a positive development, Canada’s other two federal granting institutions have been less receptive to open access mandates. To date, the Social Sciences and Humanities Research Council has only launched a small open access pilot project after opposition from publishers such as the University of Toronto Press short-circuited bolder plans. The Natural Sciences and Engineering Research Council has proven even more apathetic, as internal documents reveal that Council personnel admit that open access is not a priority.
The failure to lead on this issue could have long-term negative consequences for Canadian research. Given the connection between research and economic prosperity, this Committee should work to maximize the public’s investment in research by prioritizing open access. Using the United States and the European Union as a model, the Committee should recommend that all three federal research granting institutions unlock innovation by building open access requirements into their research mandates.
B. Government-Owned Scientific Data
In addition to the open access mandate, the Committee should recommend that the government identify the raw, scientific data currently under its control and set it free. Implementing expensive or onerous licensing conditions for this publicly-funded data runs counter to the goals of commercialization and to government accountability for taxpayer expenditures.
The government has already taken some important steps in this direction. Last year, it announced that Natural Resources Canada was making its electronic topographic mapping data available to all users free of charge over the Internet. The topographic data, which can be accessed at the aptly-named GeoGratis, provides information on the location of landscape features – such as lakes, rivers and elevations as well as roads, railways and administrative boundaries. This information is used for commercial, non-commercial, and research purposes by governments, academia and the private sector.
The Committee should recommend that the GeoGratis initiative serve as a model for how government data can be released unrestricted into the private sector, providing the public with greater access to the data they helped fund and spurring new commercial opportunities for Canadian businesses who can supplement the raw data with value-added services.
2. Commercialization, venture capital and intellectual property
I understand that the Committee does not intend for this study to include a detailed examination of Canada’s copyright legislation. However, a study that includes analysis of commercialization, venture capital, and the role of intellectual property, should recognize the importance of fair dealing reform and the danger of over-broad anti-circumvention legislation.
A. Fair Dealing Reform
The 2006 Gowers Report on Intellectual Property, the leading United Kingdom study on intellectual property reform, concluded that “‘fair uses’ of copyright can create economic value without damaging the interests of copyright owners.” Similar sentiments have been raised in Canada. Telus, Canada’s second largest telecommunications company, noted to then-Canadian Heritage Minister Bev Oda in 2006 that “in order for Canada to continue to foster innovation and play a leading role in the development and usage of world class communications technologies, our copyright system must be flexible enough to adapt in a timely manner to the rapidly changing technical and entertainment environment we now face.”
Best Buy, Canada’s largest electronics retailer, joined the chorus in January 2008, as a senior executive published an opinion piece in a major newspaper arguing that “Canadians should enjoy a flexible and open-ended list of fair dealing rights, including time, space and format shifting, and the right to mix, remix, mash and engage in satire and parody.” Several other industry leaders have raised fears that Canada’s fair dealing provision may not be sufficiently flexible to encourage innovation. For example, the Digital Security Coalition, comprised of some of Canada’s leading digital security companies, has argued persuasively that the fair dealing provision places Canadian companies at a competitive disadvantage when compared with their U.S. counterparts. In a 2006 letter, the DSC warned that:
“Canadian innovators rely on an unacceptably narrow defence of fair dealing for the legality of reverse engineering and security research. Our American competitors face no such uncertainty with respect to the broader US defence of fair use, which clearly captures reverse engineering. It is time to address this competitive disadvantage by harmonizing fair dealing with fair use.”
The failure to introduce greater flexibility within the fair dealing framework has hampered Canadian innovation and left Canada trailing a growing number of competitors, such as the U.S., which established a broad fair use provision decades ago. In recent years, a growing list of countries that includes the Philippines and Israel have modeled their copyright exceptions provisions after the U.S. fair use approach.
The current Canadian legal, business, and cultural landscape points squarely to the need for fair dealing reform. With the need to ensure that Canadian business is not placed at a competitive disadvantage, the Committee should regard instituting greater flexibility within the Canadian fair dealing provision as a top science policy priority.
B. Anti-Circumvention Legislation
Forthcoming copyright reform is likely to address the issue of anti-circumvention legislation. This Committee should recommend that any reforms do not harm scientific research and the opportunities for commercialization. The dangers associated with anti-circumvention legislation to scientific research arises from the potential to either “lock up” or limit access to content that is otherwise not subject to copyright protection. Professor Dan Burk of the University of California-Irvine notes that a work subject to anti-circumvention legislation might include copyrightable content mixed with uncopyrightable content (such as facts). If both types of content are placed under the control of a technological protection measure, an attempt to extract the unprotectable content from a copyrighted work by circumventing the TPM would result in an infringement under the Act. In a scientific context, the effect would be to limit access to facts that are otherwise not subject to copyright protection.
Not only does anti-circumvention legislation risk creating limits on access to scientific data, it also can create a chill on the dissemination of research results. For example, in 2000, Edward Felten, a Princeton researcher, sought to release an important study on encryption that included circumvention information. When he publicly disclosed his plans, he was served with a warning that he faced potential legal liability if he went public with his findings, since the mere release of circumvention information might violate U.S. law. One year later, Dmitry Sklyarov, a Russian software programmer, was arrested in Las Vegas when he presented a paper on the strengths and weaknesses of software used to protect electronic books. Sklyarov, who was employed by a Moscow-based software company called Elcomsoft, was charged with violating criminal provisions found in the DMCA. He was initially held without bail and faced a maximum fine of US$500,000 and five years in prison. Although Sklyarov was eventually released, the case had an impact within the scientific community as researchers with ties to the United States reportedly removed information from websites for fear of facing potential lawsuits.
Several policy approaches would mitigate the potential harm caused by overbroad anti-circumvention legislation. First, the Committee should recommend that any anti-circumvention legislation feature a direct connection to traditional copyright infringement by limiting the scope of a circumvention offence to users who circumvent in order to commit copyright infringement. From a copyright perspective, failure to link anti-circumvention with copyright alters the balance between creators and users as it invariably leads to an expansion of the rights attached to copyright. The U.S. experience provides ample evidence in this regard as courts have openly acknowledged that copyright compliant activity or devices are no longer sufficient, since anti-circumvention renders as illegal activity that is legal under traditional copyright norms. Such an approach would run directly counter to recent Supreme Court of Canada pronouncements on Canadian copyright law that have emphasized the need for an appropriate balance to encourage creativity and innovation in the long-term interests of society as a whole.
Second, the Committee should recommend against legislation against anti-circumvention devices. Regulating technology is always a slippery slope – the experience in the U.S. illustrates that bans on the distribution or possession of devices leads to significant innovation disincentives since small and medium sized businesses, scientists, venture capitalists, and other parties that facilitate innovation are likely to abandon cutting edge research and projects for fear of potential legal liability. Those fears have manifested themselves in security research in the United States, where the impact of lawsuit threats against scientists several years ago is still being felt today.
Third, the Committee should recommend granting users a positive right of circumvention. Such an approach would enable policy makers to obtain the benefits associated with technological protection measures (protection against large scale digital commercial piracy), while ensuring that the scientific community and commercialization is not harmed in the process.