Yesterday’s post on the Canada, the TPP and intellectual property raised a concern unrelated to the content of the piece. Since updating my site several years ago, I use a Creative Commons licensed or public domain image for virtually every post, celebrating the remarkable creativity of people and organizations from around the world who make their work freely available for anyone to use. In searching for an updated image on the TPP, I encountered a problem that has arisen with increased frequency. Several governments posted relevant images from the meetings in Vietnam and the Philippines, but the Canadian images featured restrictive terms and conditions in the form of an all rights reserved approach.
For example, there are two pictures from the same meeting downloaded from Flickr accompanying this post. The one on the left is from the President of Mexico’s Flickr page and is subject to a Creative Commons licence that permits non-commercial re-use. The picture on the right, taken from Justin Trudeau’s Flickr page, is all rights reserved. While I believe that I can rely on fair dealing and the Copyright Act’s non-commercial user generated content provision to use the picture, the restrictive licensing approach, which has become pervasive within the federal government on Flickr, is out-of-step with the standard of governments around the world and inconsistent with the “open by default” commitment.
The Prime Minister’s web page explicitly states that the works on Flickr are subject to crown copyright with all rights reserved:
Images and videos available through the Prime Minister’s Twitter, Flickr, YouTube and the Prime Minister’s Volunteer Awards Facebook accounts are subject to a Canadian Crown Copyright with all rights reserved, unless otherwise specified. We use Creative Commons Licenses to enable the sharing and use of images and videos in accordance with the terms set out in the specified Creative Commons license.
The problem is that the images on Flickr do not use Creative Commons licences but rather state that they are all rights reserved.
An open licensing approach that permits at least non-commercial use is commonly used by leaders, parliaments, and government departments around the world, with most relying on either a Creative Commons licence or immediately placing the work in the public domain. Examples include the UK Prime Minister, the Prime Minister of India, the Presidents of France, Mexico, and the United States, the European Parliament, the Government of South Korea, Government of Guatemala, the National Assembly for Wales, and Australia’s Department of Foreign Affairs to name just a few. Many of these governments provide public domain licences that allow for use of any kind. In Canada, many provincial government also use more flexible licensing options including the Premier of Alberta, Province of British Columbia, Province of PEI, and Province of Newfoundland and Labrador.
The all rights reserved approach means that foreign and provincial governments (along with international organizations) are now often the primary source for openly licensed pictures of Canadian ministers. Want a picture of Trudeau with UK Prime Minister Theresa May? There are many with open licences from May, but similar pictures on Flickr from Trudeau are all rights reserved. Want a picture of Trudeau at the recent ASEAN or APEC meetings in Vietnam and the Philippines? The White House has a public domain one, but Trudeau’s pictures are again all rights reserved.
The situation is similar for pictures of most cabinet ministers. Pictures of ISED Minister Navdeep Bains from his department’s Flickr page are all rights reserved, but the Province of B.C. has an a Creative Commons licensed one. Finance Minister Bill Morneau’s photos are all rights reserved, but there are Creative Commons licensed images from the IMF and OECD. Canadian Heritage uses all rights reserved for its Flickr pictures (which are oddly focused on British royalty), but B.C. again offers a Creative Commons licensed one for Minister Melanie Joly. Global Affairs no longer seems to post political-related photos, but Foreign Affairs Chrystia Freeland has dozens of photos from other governments, leaders, ministers, and international organizations.
In fact, some Creative Commons licensed images posted to Flickr under the previous Conservative government have been removed altogether. I relied on a Creative Commons licensed images of former Prime Minister Harper from his own Flickr page in a 2015 post but it has since been made private. The same is true for an image of former International Trade Minister Ed Fast in a 2015 post on the TPP.
There are certainly alternatives to relying on Creative Commons licensed or public domain images for websites, educational materials or other uses. Many uses of a single image will qualify as fair dealing, provided they are used with one of the enumerated purposes under the law. Similarly, an original non-commercial work that incorporates other copyrighted works may qualify under the non-commercial user generated content exception. Further, these images may be posted elsewhere, perhaps with less restrictive terms.
Yet today Flickr is the largest online image platform for openly licensed images in the world with 381 million Creative Commons or public domain licensed images. With search functionality that makes it easy to work through millions of images, it is a remarkably useful tool for finding and using openly licensed works without the need for further copyright analysis or permissions. The government should be actively encouraging the use of its images, for which the public has paid through their tax dollars. Indeed, a government committed to open-by-default should not require people to engage in a copyright analysis to determine whether they can use an image of the Prime Minister or government officials. Absent the much-needed elimination of crown copyright, the government should immediately shift to Creative Commons or licences for its images on Flickr.