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Records Indicate Government Misusing Crown Copyright

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Monday May 12, 2008

As Industry Minister Jim Prentice prepares to introduce new copyright legislation, crown copyright is unlikely to be part of the reform package. My weekly technology law column (Toronto Star version, homepage version) notes that according to documents obtained under the Access to Information Act, there may be a disturbing reason behind the government's reluctance to address it - crown copyright costs Canadians hundreds of thousands of dollars while being used as a tool to suppress public criticism of government programs.

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. 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.

For example, while U.S. governmental reports are freely available and often used for commercial purposes without the need for prior permission, Canadian publishers seeking to release a Canadian report as a commercial title would need approval from the government to do so.  To obtain permission, the publisher would be 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 would be required to disclose the estimated selling price. Film makers and educational publishers face similar barriers.  Unlike their U.S. counterparts, they must budget for lengthy, expensive approval processes for the use of government clips in their films or documents in their textbooks.

Beyond the policy reasons for abandoning crown copyright, internal government documents reveal other concerns.  Financially, the federal crown copyright system costs taxpayers hundreds of thousands of dollars.  Documents from Public Works and Government Services Canada, which administers the crown copyright system, reveal that 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 are the five percent 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. Although it seems unlikely that crown copyright authorization was needed to use these images, the government's decision to deny permission smacks of censorship and misuse of Canadian copyright law.

Given the significant costs associated with a program that does more harm than good and that appears susceptible to political manipulation, any new copyright reform should eliminate crown copyright and adopt in its place a presumption that government materials belong to the public domain to be freely used without prior permission or compensation.
Comments (24)add comment

Jon S said:

Censorship
Each day I am saddened to find out that I cannot be as proud of this country as I once was.

May 12, 2008

a guest said:

...
Except that this story is total crap. The origins of crown copyright are based more on the fact that copyright law in those days didn't include the concept of public domain as we understand it; $200,000 is such a tiny amount of government spending - a fraction in fact of what it costs to process ATIP requests relating to copyright; and for photos (the only example mentioned in the story) the concern is that they are used in ways that don't misrepresent the image. We don't have enough information to judge. But to say that government policy is somehow hijacked to preserve $7000 in licensing fees is nonsense. There are good arguments around changing crown copyright and this article misses almost all of them
May 12, 2008

a guest said:

...
Interesting that on this point the US is the role model.
May 12, 2008

a guest said:

...
Crown copyright, as it applies to the control and restriction for reproduction of our provincial and federal laws of Canada is of particular concern.

Exactly who "owns" these laws if not the people? The government’s assertion that the government must enforce Crown copyright to in order to “protect” Her Majesty’s information is nothing short of archaic thinking. Protect it from what? The US seems to manage just fine without this law. Crown copyright contradicts the intent of our own Access to Information Act.

Yet every time a committee makes recommendation for updating or abolishing this undemocratic law, there is a small but vocal group who adamantly oppose any changes to the status quo. Leading this obstructionist campaign are the individuals who benefit most from this law – the bureaucrats themselves! That’s right, the bureaucrats who hold onto their tight monopoly on distribution for information. Crown copyright, in most instances, is job security for these people. In Canada, it appears that the rights of the bureaucrat trump the right of the people.

Its time the Auditor General have a closer look at this issue and resolve it once and for all.

May 12, 2008

a guest said:

...
If crown copyright only costs $200K to administer, it's unlikely that it takes the time of very many bureaucrats.
May 12, 2008

Mark said:

Copy right
I went to the Natural Resources page to print out a copy of the Buyers Guide to Earth Energy systems. I have a paper copy from a recent college course I took, but I need another copy of an enclosed work sheet to estimate the costs. The paper copy lists the url, www.nrcan.gc.ca/redi, where you can get a free copy. When you get to the page you can select English or French. Both the English and French page only say the material does not exist. The English link has a button, Important Notice. This page tells you everything you wanted to know about copy right and how it applies to government documents. It does not provide the document nor does it say where I can get this free document, created for consumers. The site does tell me the information on this site is covered by the copy right law but sadly there is no information on the site.
What is the point of spending money to create a document for use by consumers, then restrict access to the information? Is this a make work project?

May 12, 2008

Dwight Williams said:

Time for a Change
Agreed, Professor. It's time we made this particular change you're suggesting.
May 12, 2008

a guest said:

$200,000 figure
Regarding number of bureaucrats involved in administering the $200,000. Keep in mind that this is the estimated cost to ADMINISTER the actual program. My earlier comments relate to the bureaucrats not directly involved in administering the actual program, but those who benefit from the program itself - example: the Queens Printer in BC. The $ figure is a red herring.
May 12, 2008

Hugh said:

...
what *are* the argument for crown copyright?
May 12, 2008

WJM said:

...
At an absolute minimum, even a government afraid to give up control or get bogged down in debate or cause friction with the provinces, should agree to end, immediately, and without transitional period, the perpetual crown copyright in unpublished government documents.

The Canadian government should also pressure the UK into liberalizing access to government and private papers which are still under copyright under British law. Many thousands, if not millions of pages of Canadian history are held hostage by British copyright law.
May 12, 2008

a guest said:

...
WJM: as the British government has effectively dropped Crown copyright, I really doubt that they are holding Canadian history hostage. Or that they actually care.
May 12, 2008

a guest said:

...
The Queens Printer in BC will still have to be in business, even if crown copyright disappears
May 12, 2008

RJT said:

Reform but not abolition?
I believe there are genuine arguments for the existence of copyright, and that those reasons apply as much to the crown as to anybody else. However I don't disagree with the idea that the government using copyright to control access to data is wrong. However, copyright can also protect the rights of legitimate researchers or writers who may be anywhere within the many institutions that come under the definition of 'Crown'. Copyrighted does not necessarily mean inaccessible or secret, either.

I don't follow, for instance, how Canadian history is 'held hostage' by British copyright law. It may be 'held hostage' for a period of years after it is made for reasons of national security, etc (so some Second World War secrets are still coming to light), but that is nothing to do with copyright. The public records are public to anyone, whether in or out of copyright, and you can request your own copies, even if you do not then have permission to monetise those copies. If copyright provides some funding to the archives that store the records, I don't have too much of a problem, as long as free access is available by some means (and it is).

It's too easy to have a knee jerk reaction to copyright issues. Copyright can protect the small guy, as well as the big guy. Copyright protects free software from being hoovered up by the big guys. Many government services are 'good things' that are helped by the existence of copyright - and in fact I have my doubts about the $7000 figure. That represents licensing to third parties, but how much did copyright material bring into the system in total, in the form of all the copyrighted material that is made available directly by the government(s) of Canada for a fee.

I am not saying that there is not room for a major overhaul, only that I'm not convinced by the copyright === evil arguments.
May 12, 2008

a guest said:

...
I don't believe anybody will argue that the QP should not continue to do business in BC. The question is why should the bureaucrats who are directly involved continue to be allowed to thwart any efforts to reform Crown copyright laws? It is in their best interest to do so. Any reform would likely jepardize their monopoly over what is increasingly considered "the people's" information...

May 12, 2008

Darryl Moore said:

Absolutely abolition?

RJT: "However, copyright can also protect the rights of legitimate researchers or writers who may be anywhere within the many institutions that come under the definition of 'Crown'."

What rights are these? As works made as part of employment, (which they must be to be subject to crown copyright) the writers have no rights.


RJT: "I don't have too much of a problem, as long as free access is available by some means (and it is). "

But you don't have free access if you can't share the information you received via a FOI request or other means. It's not just about profit. As well as the examples the Michael cites, it is the ability to share public information.


RJT: "Copyright can protect the small guy, as well as the big guy. Copyright protects free software from being hoovered up by the big guys."

Sure, but if there was no copyright free software wouldn't need this protection in the first place". Besides, we are talking about crown copyright here, not copyright in general. You're not arguing that the Government is one of the "small guys" are you?

Copyright as a monopoly restricting my rights, and sometimes my free speech needs to justify its existence. Michael makes good arguments for the abolition of crown copyright, though that should not really even be necessary. Those supporting crown copyright should satisfactorily argue for its existence. The same goes for all forms of Intellectual property.

May 13, 2008

TESS said:

Distinction Between crown copyright and
Good point Darryl. We need to make a distinction between the "benefits" of copyright as it extends to the protection of the "little guy" and CROWN COPYRIGHT as it applies to the protectionist views of the government over public works.

Also, while Michael makes some good points regarding the financial arguments for why crown copyright is due for retirement, I believe a more compelling strategic argument should focus on the fundamental principles behind this law and how out of touch it is with today's society.
May 13, 2008

RJT said:

Abolition, etc
@Darryl Moore

To be honest, I am more thinking these ideas over to myself - and therefore consider this 'thinking out loud'. I also have a tendency to argue against whatever the prevalent opinion is on any given blog! It's a good way to question assumptions.

No the government is not a 'small guy', but it does often represent and act as guardian to small guys and small interests. Government and the crown should not be confused with power politics all the time (if at all). Crown copyright does not have to be about (and should not be about) state control of information. My own experience is with archives, where the existence of crown copyright gives a crown institution (a national archive) a way to earn money in the absence of proper political support from the government of the day. It's only one example, but one that is important to me.

I also say this as someone who makes a living from material that is formerly crown copyright but past the 50 years, and I 'suffer' directly from the inability to use more recent resources. I also recognise that out of copyright material was subsidised by the ability to make a financial return on the first publication. My current living was made possible by crown copyright, but it also restricts me. The crown has always made money from it's property (intellectual and otherwise) - which it holds in trust for the people. That can work in the people's favour, as well as against them. All I really suggest is a more thoughtful approach than knee-jerk opposition, and also that we question Michael Geist's overly simplistic $7000 revenue for $200,000 expense formula.
May 13, 2008

TESS said:

Crown Copyright
Darryl - You had mentioned that crown copyright "should not be about control of information", but this is precisely what effect that it has – as you have experienced first hand.

The notion that crown copyright is required in order for the government to “earn money” for the services it provides to the people is a fairly weak one in my opinion. Unlike many of my colleagues, I don’t even have a problem with the government charging fees to recoup some of these so called “expenses” related to these folks doing their job, as public servants. But don’t restrict competition here. Allow me the opportunity to take this information, add value to it and distribute it to those who could benefit from the information – without the threat of big brother looking over my shoulders.
May 13, 2008

Bill Poser said:

crown copyright
"to say that government policy is somehow hijacked to preserve $7000 in licensing fees is nonsense"

No doubt that is why Professor Geist did not say this.

As for the notion of public domain not having existed when Crown copyright was introduced, that is doubtful. I don't know when Crown copyright was introduced here in Canada, but in British law, once copyright in its modern sense was introduced in the 18th century, the Crown ceased to have any special privileges and Crown copyright existed only for a limited set of works, such as the King James Bible, the Book of Common Prayer, and acts of Parliament. General Crown copyright was not introduced until 1911.
May 13, 2008

WJM said:

...
WJM: as the British government has effectively dropped Crown copyright, I really doubt that they are holding Canadian history hostage. Or that they actually care.


They have absolutely done no such thing. Copyright in government archival papers is now "just" 125 years.

On private papers, the "transitional" period is even longer than the idiotically long Canadian period.

And, having run into copyright-related roadblocks on numerous occasions when I've tried to get copies of material which have absolutely no bearing on British history, but which are of vital importance to Canadian history, yes, I feel safe and comfortable saying that the UK copyright law holds Canadian (and Australian and New Zealand and American and African and Caribbean) history hostage.

That's what it is.

And our government doesn't care.
May 13, 2008

Darryl Moore said:

...
TESS you are mixing me up with RJT. He was replying to my post. I agree with Geist on this one and advocate the total abolition of crown copyright.
May 14, 2008

TESS said:

...
My apologies Darryl
May 14, 2008

Richard said:

Crown Copyright
Some years ago the company I was working for produced "how to" guides. One of them was how to incorporate a business in BC ... written by a lawyer, the book explained the process, options, and so on, and showed worked-through samples of the forms one then had to use (pre online incorporation). The book was sold with a blank set of the forms one needed for an incorporation. The company had produced it for over 30 yeas.

The Queen's Printer of BC suddenly took an interest in this, saying the forms were their copyright because they had the provincial crest at the top of the page. We enquired if the forms could be submitted without the crest, as it contributed nothing to the process of incorporating. "No" was the emphatic answer.

The QP then offered a "deal" in which the company would pay the QP for the right to reproduce the forms ... a fee which we estimated was approximately 3x our earnings on the kits. So we stopped producing the kits and some staff were let go.

At exactly the same time, a small business in Victoria changed hands, being acquired by an Ontario company, and it was announced that henceforth this company would be the only permitted provider of paper incorporation forms for BC. There had apparently been a request for bids to provide something like "data compilation services" and this one company amazingly managed to deduce what that meant.

Crown Copyright seems to lend itself to at least the impression of not-quite-honest "deals" being cut between the QP and others. It also raises for me the question, if my taxes paid for something to be produced, why must I pay again to use it?
May 15, 2008

Brian said:

Time for Change
I believe that there are a lot more stories out there like Richard’s.

I’m also aware of a number of companies who refuse to acknowledge Crown copyright and continue to fly under the radar while under constant threat of lawsuit. I wish there was some way for these like-minded groups to meet within a “safe” environment without fear of prosecution, and to form strategic alliances, to pool resources to fight these types of issues.
May 19, 2008

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