Columns

Open Access Should Lead on National Science & Tech Strategy

My weekly Law Bytes column (Toronto Star version, homepage version) looks at the recently released national science and technology strategy. The column includes new information obtained under the Access to Information Act that highlights publisher opposition to open access in Canada and demonstrates the need for government leadership on the open access issue. I argue that maximizing the value of Canada's investment in research requires far more than tax breaks and improved accountability mechanisms. Instead, government must rethink how publicly-funded scientific data and research results flow into the hands of researchers, businesses, and individuals.

Achieving that goal requires action on two fronts. First, the government should 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. Ottawa has already taken some important steps in this direction. Last month, 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.

Second, Ottawa must pressure the three federal research granting institutions to build open access requirements into their research mandates.

May 28, 2007 — 2 comments — Columns

There Will Be No Privacy Reform. Get Over It

My weekly Law Bytes column (Toronto Star version, homepage version) examines the Standing Committee on Access to Information, Privacy and Ethics' much-anticipated report on the reform of Canada’s private sector privacy law released earlier this month. Despite hearing from 67 witnesses, the Committee followed the lead of Industry Minister Maxime Bernier and Privacy Commissioner Jennifer Stoddart – neither of whom argued forcefully for reform – by issuing a tepid report that rejects the changes that many privacy advocates believe are necessary to improve the effectiveness of the current legal framework.

Instead, the final report, which includes separate dissenting opinions from the Conservative and Bloc Quebecois MPs, features 25 recommendations that at best represent little more than tinkering with the law and at worst undermine privacy protections in several key areas, most notably the use of privacy law to counter the mounting spam problem. Most of the major issues presented to the Committee, including beefing up the Privacy Commissioner's powers, adopting a "name and shame" approach for privacy violators, and safeguarding Canadian data that is outsourced to other jurisdictions, were met with indifference, as the Committee recommended no further reforms. In fact, even a mandatory security breach notification requirement – widely expected as a response to the massive data security breaches involving retail giants Winners and Homesense – was tempered with a recommendation to require notification to the Privacy Commissioner, not necessarily to the individuals affected by the breach.

In fairness to the Committee, many of their recommendations appear to have been shaped by the inexplicably weak responses from Industry Minister Bernier (who is responsible for the legislation) and Privacy Commissioner Stoddart.

May 21, 2007 — 4 comments — Columns

Copyright Permission Has No Place in this House

My weekly Law Bytes column (Toronto Star version, homepage version) examines the restrictions on using political clips, such as debates from the House of Commons, for non-commercial purposes. A recent incident in the U.S. involving Nancy Pelosi sparked considerable discussion about whether it was appropriate for any private broadcaster to maintain copyright control over the public discussion and debates of elected officials. It is a debate that I argue is sorely needed in Canada given the current restrictive framework and the proliferation of political parody and criticism videos that regularly appear on video sharing sites such as YouTube.

In the U.S., C-Span now permits non-commercial copying, sharing, and posting of its video on the Internet, with attribution. More recently, similar questions have been raised in the U.S. about the permission needed to copy, share, and post video stemming from Presidential debates. Several Presidential candidates, including Barack Obama, John Edwards, and Christopher Dodd, have called on the U.S. television networks to make debate footage freely available for non-commercial uses. Last week, CNN became the first broadcaster to do so.

While the U.S. appears to be moving rapidly toward facilitating this emerging form of political speech, Canadians face more onerous restrictions.

May 14, 2007 — 3 comments — Columns

Lawsuits Put Online Free Speech At Risk

My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the defamation lawsuits launched in British Columbia by Wayne Crookes against a who's who of the Internet, including Yahoo!, MySpace, and Wikipedia. Those companies are accused of defaming Crookes not by virtue of anything they have said, but rather by permitting their users to post or link to articles that are allegedly defamatory.

The lawsuits could prove to be critically important to the Internet in Canada, because they cast the net of liability far wider than just the initial posters. Indeed, the lawsuits seek to hold accountable sites and services that host the articles, feature comments about the articles, include hyperlinks to the articles, fail to actively monitor their content to ensure that allegedly defamatory articles are not reposted after being removed, and even those that implement the domain name registrations of sites that host the articles.

The common link with all of these targets is that none are directly responsible for alleged defamation. Rather, the Crookes lawsuits maintain that Internet intermediaries should be held equally responsible for such content.

April 30, 2007 — 18 comments — Columns