Earlier this year there was a fair amount of buzz about a Canadian Heritage commissioned study on copyright collectives. Conducted by Toronto lawyer Craig Parks, the study came to the public's attention after Parks launched a blog that invited contributions and public comment. It was an interesting approach, though critics noted that Canadian Heritage was not providing any support for the blog initiative and there seemed to be a lack of transparency about the process.
Documents obtained from a recent Access to Information request provides a bit more background and raise a series of new concerns. It would appear that the study was commissioned late last year with final contractual details ironed out in early 2006. Mr. Parks submitted his report, A Report on the Copyright Collectives Operating in Canada, on March 31, 2006. The report is effectively divided into two parts. The first part is a review of the collectives with unattributed comments highlighting specific benefits and problems. The second part is a directory of the collectives with contact information, key personnel, collective members, licenses, as well as a description of the role of the collective and its relationship with the Copyright Board. The prime source of the material in the study was a series of telephone interviews lasting an average of one hour each. Mr. Parks does not disclose who he spoke with, but rather that he "stopped counting after 50."
Interestingly, Parks notes in the introduction that "I can say that a more comprehensive survey would have yielded diminishing returns in terms of new and different comments in the areas of concern." Despite that view, he went back to Heritage in early May with a proposal to extend the contract to conduct some face-to-face interviews with the prospect of revising the March report. The revised report is due in mid-October.
In reviewing the ATIP documents, I encountered both substantive and procedural concerns. From a substantive perspective, the study excludes important copyright stakeholders. Parks acknowledges in the report that he received responses from creators who are not members of collectives, however "strictly speaking, their input was not sought for this study." Moreover, listing Captain Copyright as an Access Copyright benefit is open doubt (though that may be Access Copyright talking) as is his characterization of the private copying levy, where the "users" are not the public who pay the levy, but rather the retailers who collect it. Moreover, the failure to identify the interview subjects is simply inexcusable and make it impossible to gauge the validity of the conclusions (which can be summarized as there are not too many collectives – Parks is of the view that that complaint is "grounded in 'optics' rather than reality"- and other changes to collectives such as greater oversight require legislative change).
The procedural concerns are even more serious. This study – along with my previous article on Canadian Heritage funding for copyright lobby groups – demonstrates a persistent lack of transparency from that department. There is nothing wrong with funding research (indeed, Canadian Heritage funded an excellent study on TPMs by my colleague Ian Kerr), yet publicly funded policy research must be fully transparent without a particular policy agenda. While Canadian Heritage claims that it posts the studies it commissions on the Internet, months have passed since Parks submitted his report and it is still not online. Moreover, there is reason to believe that there was never an intention to make the study available. After a member of the public complained to Parks about appearance of the project, the documents show that Parks wrote to his Canadian Heritage contact and noted that "I am inclined to respond that I was contracted as an independent expert and it was never contemplated that the study be posted on the Heritage website or that it attract 'position papers' or constitute a full and open public consultation."
In fact, the lack of transparency extends to the departments within government. The documents reveal that Industry Canada only became aware of the study through the same online postings that generated the broader public interest. When an official asked whether this was a new study, Canadian Heritage first formulated an internal response and ultimately replied that the report commenced months earlier (with no indication that the report had actually been submitted).
I frequently write about how the copyright reform debate has changed with new stakeholders and new perpectives that must be taken into account. It is increasingly apparent that the internal government processes must also change as public confidence is being undermined by the lack of transparency within the government's copyright policy department.