Thanks very much.
Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and e-commerce law. By way of background, I serve on the Privacy Commissioner of Canada's expert advisory committee and on a number of boards, including the board of the Canadian Legal Information Institute, which is funded by Canadian law societies to provide free access to law. I'm also the editor of this new book on Canadian copyright and Bill C-32, which includes several contributions that address access to public sector information. There is some overlap between some of the issues that we see taking place there and some of the issues you're thinking about.
That said, I appear today before this committee in my personal capacity. I am representing only my own views.
I'd like to thank the committee for the invitation to come and speak and also for taking on the open government issue. At a time when the digital economy strategy is gaining increasing attention, it is crucial to recognize that the federal government has an important role to play in the digital content realm by ensuring that its own content or the content produced on its behalf is readily and often freely available in digital form. After years of closed, walled-garden approaches, the world, as we've just heard, is embracing the benefits of openness, and as you've just heard and we know, a growing number of Canadian cities have adopted openness policies that establish a preference for open standards, open-source software, and open government.
I believe that the federal government should follow their lead. We've seen other countries do it, and do it quickly. In the United States there were 47 data sets available to the public in May 2009. As we just heard, a year and half later there are 305,000 of those data sets available. In Australia the government launched the Government 2.0 Taskforce in June 2009. The task force completed its work in less than a year, and the government responded in May of this year. All of this took place in the span of less than a year. The U.K. launched data.gov.uk at the start of this year. Today there are more than 5,000 data sets freely available and more than 100 apps that use the data to provide information on fuel and housing prices, air quality, and government spending.
However, rather than focusing my comments on the impressive achievements elsewhere, I thought I'd concentrate in my opening remarks on what might be seen as low-hanging fruit, two easy, low-cost or no-cost initiatives that could jump-start open government in Canada: crown copyright and CAIRS.
We'll start with crown copyright. It dates back to the 1700s. Crown copyright reflects a centuries-old perspective that government ought to control the public's ability to use official documents. Today crown copyright extends to 50 years from creation and 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's not automatic. To obtain permission, the author or publisher has to provide details on the intended use, the format of the work, the specific website it's going to appear on online, and an estimate of the number of hard copies to be printed. If it's going to be sold commercially, they have to disclose the estimated selling price.
The Canadian approach stands in sharp contrast to what we see in the United States, where their federal government does not hold copyright over work created by an office or an employee as part of a 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 print and audiovisual worlds, and is increasingly viewed as a barrier to Canadian filmmaking, political advocacy, and educational publishing.
Beyond just the pure policy reasons for abandoning crown copyright, there are financial reasons for reform as well. The federal crown copyright system costs taxpayers hundreds of thousands of dollars each year. According to documents that I obtained under access to information from Public Works and Government Services Canada, which administers the crown copyright system, in the 2006-07 fiscal year crown copyright licensing generated less than $7,000 in revenue, yet the system cost more than $200,000 to administer. In most instances, Canadians obtained little return for this investment.
About 95% of crown copyright requests are approved, with requests ranging from archival photos to copies, and this is true of the Copyright Act itself. More troubling were the 5% of cases in which permission was declined. While in some instances the refusals stemmed from the fact that the government didn't have the rights to the requested work, there was one instance in which an educational institution asked for permission to reproduce a photograph of a Snowbird airplane, but 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 United States was declined because it was to be used in an article that wouldn't portray the program in a favourable light.
The ability to wield crown copyright has also arisen with respect to actual takedown notices. For example, just last year the Auditor General sent takedown demands to The Globe and Mail and Scribd, an online publishing site, after the newspaper posted one chapter from one of her reports. The office argued that crown copyright applies and that a written request for permission on a case-by-case basis is required.
Leaving aside the fact that this is arguably fair dealing--it's news reporting and consists of just one chapter in a larger report--the notion that Canadians need advance permission to reproduce or post a portion of a government report, I think, runs counter to the Auditor General's own efforts at government transparency and efficiency.
Similar issues can also arise in the context of video, possibly with respect to these very proceedings. In the spring of 2007, Friends of Canadian Broadcasting, the well-known broadcasting advocacy group, began to post videos and podcasts of parliamentary committee proceedings on their website. When officials at the House of Commons caught wind of the activities, they sent a cease and desist letter demanding that the videos and podcasts be removed from the Internet. A lawyer from the House of Commons argued that posting excerpts from committee proceedings such as these could be treated as contempt of Parliament.
In an ideal world, this would be an issue that the Bill C-32 legislative committee would be addressing, since the abolition of crown copyright, as New Zealand has been proposing, would have been part of the copyright reform package. Since it isn't, I would argue that we ought to consider following the Australian model of leaving crown copyright in place but overlaying it with an open licensing approach. That would mean government would maintain copyright but would freely license the use of the work for reuse, with no need for further permission or compensation. Only attribution would be required.
Similar approaches have been adopted in the U.K., which has seen the development of an open government licence, while others have called for the creation of a crown commons licence. Whatever you call it, the approach would provide an efficient means of freeing up government works without the need for legislative change.
Second, I'd like to touch briefly on CAIRS and access to information. As this committee well knows, in 2008 the CAIRS database, which provided information on prior access to information requests, was discontinued. This committee passed a resolution calling for its reinstatement, and the Information Commissioner has done the same.
In 2009 I launched CAIRS.Info, a site that provides access to searchable PDF copies of the same information that was contained in the CAIRS database. I have sent requests to most government departments each quarter for a list of the most recent access to information requests. The resulting documents are then uploaded and can be searched by government department, date of request, or keyword. The site is still available, but it's now out of date. It has proven difficult to maintain, given the need for quarterly requests to dozens of government departments, followed by digitization and uploading of those materials.
I'd argue that the solution is obvious. Not only should we reinstate CAIRS, but we should also make the records from all access to information requests freely available online, in machine-readable format.
This follows the U.K. example. In October of this year, Minister for the Cabinet Office Francis Maude told a Conservative Party conference that their freedom of information act will be amended so that all data released must be in reusable and machine-readable format. The change in the U.K. will mean that freedom of information data will be, and I quote, “available to everyone and able to be exploited for social and commercial purposes”. I believe the closest we come to that in Canada right now is the Department of National Defence, which lists all completed access to information requests on its website and invites the public to request a copy informally at no cost. That's a start, but it's not as good as we can and should do.
In conclusion, this is by no means the full solution. Rather, it is a modest starting point. There's open data, open access to research, open source software initiatives, and many other possibilities. Like many others, I believe that our goal should be to maximize open government. In doing so, we reduce costs, unleash economic value, increase transparency, and generate greater public confidence in our democratic institutions. I look forward to your questions.
