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Monday, 16 May 2016 07:37
Can a government cut short the term of copyright protection in the public interest through a regulatory scheme? This question was considered in the recent decision in Geophysical Services Inc. v. Encana. In my previous blog post I discussed the part of the decision that dealt with whether the works at issue in the case were capable of copyright protection. In this post, I consider the regulatory expropriation issues.
Geophysical Services Inc (GSI) had argued that the government had violated its copyright in its compilations of seismic data and in its information products based on this data, when it released them to the public following a relatively short confidentiality period. The data had been submitted as part of a regulatory process relating to offshore oil and gas exploration. GSI also argued that the oil and gas companies which then used this data in their operations, without paying license fees, also violated their copyright. As discussed in my previous post, Justice Eidsvik of the Alberta Court of Queen’s Bench found that both the compilation of data and the related analytics were original works and were the product of human authorship.
The infringement issue, however, did not end with a finding of copyright in the plaintiff’s works. The outcome of the case turned on whether the government was entitled to release the information after the end of the 5-15 year confidentiality period established by the regulatory regime – and, by extension – whether anyone was then free to use this material without need for permission. The normal term of copyright protection for such a work would be for the life of the author plus an additional 50 years.
GSI was engaged in geological surveying, using seismic testing to create charts of the ocean floor. In order to engage in this activity it needed a permit from the relevant provincial and federal authorities: the National Energy Board, the Canada Newfoundland and Labrador Offshore Petroleum Board and/or the Canada Nova Scotia Offshore Petroleum Board. It was also required, as part of the regulatory process to submit its data to the relevant Boards. The process of mapping the ocean floor using seismic testing is time and resource intensive, and requires considerable human expertise. Once it was collected and compiled, GSI would license its data to offshore oil and gas exploration companies who relied upon the quality and accuracy of the GSI product to carry out their activities.
According to the regulatory regime any data or information submitted to a Board must be kept confidential by the Board for a specified period. Disclosure is governed by the Canada Petroleum Resources Act (CPRA). Section 101 of the CPRA provides that documentation submitted as part of the regulatory process is privileged and shall not be disclosed except for purposes related to the regulatory regime. In the case of data or information related to geophysical work, the period of privilege is 5 years. It was agreed by the parties that this meant that the data could not be disclosed without consent for at least 5 years. However, the plaintiff argued that its copyright in the materials meant that even if the privilege expired, the plaintiff’s copyrights would prevent the publication of its information without its consent.
In reviewing the legislative history, Justice Eidsvik concluded that it was the government’s clear intention to stimulate oil and gas exploration by ensuring that exploration companies could get access to the relevant seismic data after a relatively short period of privilege. The proprietary rights of GSI (and other such companies) could be asserted within the privilege period. According to the legislative history, this period was set as the amount of time reasonable to permit such companies to recoup their investment by charging licence fees before the data was made public. Justice Eidsvik found a clear intention on the part of the legislature to limit the copyright protection available in the public interest. The 5-year privilege period was designed to balance the rights of the copyright holder with the broader public interest in oil and gas exploration. She also found that the publication of the data was a form of compulsory licence – oil and gas exploration companies were free to make use of this data once it was released by the Boards. Essentially, therefore, the legislative regime provided for an expropriation – without compensation – of the remainder of the term of copyright protection. According to Justice Eidsvik, the inclusion of a no-compensation clause in the statute “acknowledges Parliament’s intent to confiscate private property in return for a policy it believed to be in the public interest to promote early exploration of its resources in the offshore and frontier lands.” (at para 237)
GSI argued that changes in technology combined with the high cost of collecting and processing the data had disrupted any balance that might have been contemplated in setting the original 5-year privilege period. In fact, although the legislation allows for the publication of the data after 5 years, the practice of the Boards has been to delay the release of the data anywhere up to 15 years. However, GSI still maintained that the balance was no longer fair or appropriate. Justice Eidsvik was clearly sympathetic to GSI’s arguments, but she found that as a matter of statutory interpretation the legislation was clear in its effect. She noted that it would be for Parliament to change the legislation if it needs to be adapted to changing circumstances.
The issues raised by this case are interesting. Copyright law already contains many provisions that aim to balance the public interest against the rights of the copyright holder. Fair dealing is just one example of these. In fact, the term of protection (currently life of the author plus 50 years) is another one of these balancing mechanisms. What the court recognizes in Geophysical Services Inc. v. Encana is that other federal legislation can limit the term of copyright protection in order to advance a specific public interest.
This is not the only circumstance in which copyright may be limited by laws other than the Copyright Act. Another case which has recently been settled without being resolved on the merits (Waldman v. Thompson Reuteurs Canada Ltd.—discussed in my blog post here) raised the issue of whether the open courts principle effectively creates an implied public licence to use any materials submitted to the courts as part of court proceedings. This would include documents authored by lawyers such as statements of claim, factums, and other such documents. In Waldman, these materials had been taken from court records and included in a pay-per-use database by a legal publisher.
There are other contexts in which materials are submitted to regulators and later made public as part of that process. (Consider, for example, patent disclosures under the Patent Act). The legislation in such cases may not be as explicit as the CPRA – Justice Eidsvik found this statute to be very clear in its intent to make this data open and available for reuse after the statutory confidentiality period. In particular, she cited from the parliamentary debates leading up to its enactment in which disclosure in the interest of stimulating oil and gas exploration was explicitly contemplated.
One question going forward is in what circumstances and to what extent do legislated requirements to disclose data or documents terminate copyright protection in these materials. Another interesting issue is whether a provincial government could establish a regulatory regime that effectively brings to an end the term of copyright protection (since copyright falls within federal jurisdiction). In an environment where intellectual property rights are increasingly fiercely guarded, Parliament (and the legislatures?) may need to be more explicit about their intentions to cut short IP rights in the public interest.
Monday, 25 April 2016 07:06
A recent news story from the Ottawa area raises interesting questions about big data, smart cities, and citizen engagement. The CBC reported that Ottawa and Gatineau have contracted with Strava, a private sector company to purchase data on cycling activity in their municipal boundaries. Strava makes a fitness app that can be downloaded for free onto a smart phone or other GPS-enabled device. The app uses the device’s GPS capabilities to gather data about the users’ routes travelled. Users then upload their data to Strava to view the data about their activities. Interested municipalities can contract with Strava Metro for aggregate de-identified data regarding users’ cycling patterns over a period of time (Ottawa and Gatineau have apparently contracted for 2 years’ worth of data). According to the news story, their goal is to use this data in planning for more bike-friendly cities.
On the face of it, this sounds like an interesting idea with a good objective in mind. And arguably, while the cities might create their own cycling apps to gather similar data, it might be cheaper in the end for them to contract for the Strava data rather than to design and then promote the use of theirs own apps. But before cities jump on board with such projects, there are a number of issues that need to be taken into account.
One of the most important issues, of course, is the quality of the data that will be provided to the city, and its suitability for planning purposes. The data sold to the city will only be gathered from those cyclists who carry GPS-enabled devices, and who use the Strava app. This raises the question of whether some cyclists – those, for example, who use bikes to get around to work, school or to run errands and who aren’t interested in fitness apps – will not be included in planning exercises aimed at determining where to add bike paths or bike lanes. Is the data most likely to come from spandex-wearing, affluent, hard core recreational cyclists than from other members of the cycling community? The cycling advocacy group Citizens for Safe Cycling in Ottawa is encouraging the public to use the app to help the data-gathering exercise. Interestingly, this group acknowledges that the typical Strava user is not necessarily representative of the average Ottawa cyclist. This is in part why they are encouraging a broader public use of the app. They express the view that some data is better than no data. Nevertheless, it is fair to ask whether this is an appropriate data set to use in urban planning. What other data will be needed to correct for its incompleteness, and are there plans in place to gather this data? What will the city really know about who is using the app and who is not? The purchased data will be deidentified and aggregated. Will the city have any idea of the demographic it represents? Still on the issue of data quality, it should be noted that some Strava users make use of the apps’ features to ride routes that create amusing map pictures (just Google “strava funny routes” to see some examples). How much of the city’s data will reflect this playful spirit rather than actual data about real riding routes is a question also worth asking.
Another important issue – and this is a big one in the emerging smart cities context – relates to data ownership. Because the data is collected by Strava and then sold to the cities for use in their planning activities, it is not the cities’ own data. The CBC report makes it clear that the contract between Strava and its urban clients leaves ownership of the data in Strava’s hands. As a result, this data on cycling patterns in Ottawa cannot be made available as open data, nor can it be otherwise published or shared. It will also not be possible to obtain the data through an access to information request. This will surely reduce the transparency of planning decisions made in relation to cycling.
Smart cities and big data analytics are very hot right now, and we can expect to see all manner of public-private collaborations in the gathering and analysis of data about urban life. Much of this data may come from citizen-sensors as is the case with the Strava data. As citizens opt or are co-opted into providing the data that fuels analytics, there are many important legal, ethical and public policy questions which need to be asked.
Wednesday, 29 January 2014 13:28
Open licences have become a popular means by which works covered by copyright or database rights are made available for use and reuse. In fact, open licences are so popular that even governments are embracing them. Canada’s federal government, for example, has launched its own open government licence, and similar licences have been adopted by provincial and municipal governments. Some open licences contain restrictions (such as on commercial use) – or requirements (such as attribution), while others contain virtually no limitations. Open licences promote sharing of works as well as the creation of new works derived from or built upon the licensed works.
The popularity of open licences, as well as the diverse contexts in which they are developed and used, mean that compatibility between the licences can be a problem for users who wish to combine two or more works that have been made available under open licences. While basic technical interoperability is required when combining digital works, ‘legal interoperability’ is a term used to describe the ability to compile works made available under different open licences in such a manner that the legal status of the resulting compilation is clear. This can be surprisingly challenging. Given that open licences are generally designed to be accessible and user-friendly so as not to stifle creativity under a blanket of legalese, it can be a problem if creators are left having to determine the compatibility of the different rights and permissions set out in a variety of open licences.
This is what makes the newly launched website CLIPOL.org an interesting and potentially important resource. CLIPOL.org is an initiative of the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC), and was funded in part by Natural Resources Canada through its GeoConnections programme. The website contains a catalogue of open licences from around the world and from a range of different contexts. Two apps are available from the site to use with the licence database. The “text compare” app has two functions. The first allows a user to evaluate the compatibility of different licences in the database. Highlighting and redlining are used to show how the actual licence terms differ in the two licences. The second a schematic comparison of a family of similar licences. The other app available from the site is a compatibility tool which allows users who are thinking of combining works under different licences to assess the extent to which the different licences are compatible.
The website also offers a useful set of resources on open licencing through the link to the CIPPIC Open Governance site, and it provides links to other major sites that deal with open licencing issues.
The project is already publicly available, but it will be formally launched through a free webinar hosted by GeoConnections on February 11, 2014.
Tuesday, 05 November 2013 16:05
The Citizen Call to Action is part of a drive to engage citizens in the goals of the open data movement, notably in promoting transparent and accountable government through free access to a broad range of government data in reusable formats.
The Declaration around which the Call to Action is based calls for governments to take a number of steps considered crucial to fostering open data. The first is to make government data open by default. In other words, unless there is some reason to limit access to data, it should be made freely available, in reusable formats. The Declaration also calls on governments to engage users of data in the process of designing and implementing open data. Engagement can include involving users in identifying priority data sets and in designing initiatives meant to promote open data.
Implicit in the notion of open data is that the data be free: free of restrictions on reuse, free from restrictive or proprietary formats and free from cost. This is a broad concept of “free” data, and it is one that will require the development of common standards and formats within government, as well as co-operation and collaboration between different levels of government to ensure that data is as useful as possible once it is made available. The Declaration encourages governments to invest in capacity building both within government to ensure their own capability to generate and make available high quality, reusable data, but also within user communities. The Declaration also calls for steps to be taken to improve the quality of government data.
Finally the Declaration calls for accountability to be the core value of Open Data, requiring governments to release data that is crucial to keeping government accountable rather than to focus on data sets which are considered nonthreatening to vested political interests. The Declaration also calls for legal and political reforms to further the goals of transparency in government.
Tuesday, 03 September 2013 10:40
The federal government is calling for comments on its Year One progress on Canada’s Action Plan for Open Government. The government is seeking feedback on two main questions, namely: how it has done in meeting its commitments under the Action Plan; which commitments still require the most attention. They are also seeking more general feedback in the form of comments or suggestions regarding its Open Government initiative. The consultation opened on August 19, 2013 and will close on September 9, 2013.
Thursday, 15 August 2013 10:17
Back in March I wrote about a decision of the Federal Court of Appeal in a dispute over rights in nautical charts and maps. At issue was whether the matter should be resolved on summary judgment or whether it should proceed to trial. The Court decided that it should go to trial. In reaching its decision in the case, the Court made a comment in passing on the wording of a federal government licence agreement that was relevant to the dispute. This comment, which is reproduced in my earlier report on the case, puzzled over the government’s claim in its licence to copyright in its data, given that it was entirely clear in law that there could be no copyright in data.
Leave to appeal this decision to the Supreme Court of Canada has just been denied by that Court. This means that the decision of the Federal Court of Appeal stands, and that the matter should now proceed to trial. The case raises some very interesting copyright issues and will be worth following.
Tuesday, 18 June 2013 09:54
With little fanfare, the Canadian government has released its much awaited, newly revised Open Government Licence. The previous version that had been available on its Open Data site was a beta version on which public comments were invited. The government has also published its Open Government Licence Consultation Report, which summarizes and discusses the comments received during the consultation process.
The revised version of the licence is an improvement over its predecessor. Gone is the claim to database rights which do not exist in Canada. (These rights do exist in the UK, the Open Government Licence of which was a template for the Canadian licence). The new licence also discards the UK term “personal data” and replaces it with “personal information”, and it gives this term the meaning ascribed under the federal Privacy Act. The language used in the licence has been further simplified, making it even more accessible.
It should be noted that Alberta’s new open government licence – released as part of the launch of its open government portal earlier this year – is very similar to V2.0 of the federal government licence. There are some minor formatting differences, and a few changes in wording, most of which can be explained by the different jurisdiction (for example, the definition of “personal information” refers to Alberta’s Freedom of Information and Protection of Privacy Act). The similarities between the two licences are no coincidence. Although the Alberta licence was made public prior to the release of the federal government’s V2.0, work has been going on behind the scenes to move towards some form of federal/provincial consensus on the wording of open government licences with a view to ensuring that there is legal interoperability between data sets released by different governments in Canada. The efforts to reduce barriers to interoperability (whether legal or technical) are important to the ability of Canadians to work with and to integrate different data sets in new and innovative ways. Thus not only is the COGL V2.0 to be welcomed, so are the signs that cooperation and coordination may lead to a greater legal interoperability of open government licences across Canada.
Thursday, 21 March 2013 13:08
A recent Federal Court of Appeal decision may have significant implications for the licensing of government data by federal and provincial governments. Nautical Data International Inc v. C-Map USA Inc. is a decision that relates to a lawsuit brought by Nautical Data against the defendant C-Map after C-Map allegedly used data from Canadian Hydrographic Service charts and maps to create its digital charts. Nautical Data took the position that it had acquired the rights, through an exclusive licence, to the raw data that was used in the preparation of the charts, and that these rights were infringed by C-Maps activities. Of course, the two parties were competing in the production of digital navigation products.
Typically, government data licences, whether open or otherwise, assert that the government has rights in the data being licensed. Even the federal government’s recently proposed Open Data Licence covers information that is defined as “information protected by copyright or by database right...”. Leaving aside the imported and inappropriate reference to database rights that do not exist in Canada (see my earlier blog on this point), the government is clearly assuming that it has copyright in the data that is the subject of such licenses. Geobase’s Unrestricted Use Licence Agreement also boldly asserts that “Canada is the owner of or has rights in the data (the
This idea that data can be “owned” and that copyright law is the vehicle for this ownership is clearly evident in these and in many other licences in both the private and public sectors. This is the case, notwithstanding the fact that in copyright law, there can be no monopoly in facts or data. Copyright will only protect an original expression of facts or data. In a compilation of data, that expression will be manifest in an original selection or arrangement of the data. Even if there is an original selection or arrangement, the protection extends only to that selection or arrangement; it never extends to the underlying data.
While copyright academics have made this point before, it has largely fallen on deaf ears. That is why the comments by the Federal Court of Appeal on this point are so interesting. While the decision is not on the merits of the case (the litigation was about whether summary judgment should be rendered on the issues; the court ruled was that it should not – that the matter should proceed to trial) Justices Nadon and Sharlow state quite plainly that “there can be no copyright in information.”(at para 11). Moreover, they express a certain surprise at the wording of the licence. They state:
Section 6.1 is intended to be a formal acknowledgement of Crown copyright, but it refers to copyright in the CHS Data. Either the parties were unaware that copyright could not subsist in information (which we would not presume), or they understood the phrase “CHS Data” by necessary implication to mean or at least include the CHS Works, even though the definition of “CHS Data” in the licence seems to limit its meaning to “data”. (at para 13)
This is perhaps one of the politest ways possible to criticize the drafting of the licence. Justices Nadon and Sharlow go on to note that the allegation in the licence that the Crown “owns” the data is similarly troublesome. They state: “If it is intended to mean that data can be owned in the same way as property can be owned, then there is some question as to whether it is correct as a matter of law. . . . there is no principle of property law that would preclude anyone from making use of information displayed in a publicly available paper nautical chart, even if the information originated with the Crown or is maintained by the Crown.” (at para 14)
These statements are both interesting and important, and direct attention towards the rather thorny issues around the protection of data in Canada. Data producers, whether in the public or private sectors, have asserted claims to copyright in their data that are far stronger than the law apparently supports. They can do this largely because to challenge such a claim would require engaging in costly and time-consuming litigation which is beyond the reach of ordinary citizens and many businesses as well. It is perhaps the law’s version of Stephen Colbert’s ‘wikiality’ – let’s call it legiality: if you can get enough people to say that certain rights exist, then perhaps for all intents and purposes they do.
Although the copyright issues are not fully litigated in this installment of the Nautical Data saga, the statements by Justices Nadon and Sharlow are a jurisprudential shot across the bows (if you will forgive the nautical reference) of those who claim excessive rights to data in copyright licenses. Whether it is the Nautical Data case that will eventually provide the clarification of the law on these issues or other cases that may be working their way through the system, it really is time for our courts to reinforce the Federal Court of Appeal's clear message regarding over-claiming data licences: there simply is no copyright in facts.
Friday, 01 February 2013 13:21
In a recent blog post I wrote about the issues raised by the mapping of public information. The issue that prompted this blog post was the creation, by the Journal News of New York State, of a map featuring the names and addresses of all gun permit holders in two counties. The map prompted outrage although it merely represented data made available to the newspaper on an access to information request.
A recent development in the story highlights another issue both with open data and with the mapping of public information. The Journal News reports that a substantial amount of the posted information was inaccurate. Apparently this was attributable to the fact that one of the two counties at issue did not require permit renewals, and thus contained a significant amount of outdated information. In fact, the data for this county was only about 25% accurate. The other county required renewals every five years, which made the data more current, though not entirely up-to-date.
The open data movement promises significant social and economic benefits. Making government data freely available in appropriate formats for reuse is meant to increase government transparency and accountability, and to provide individuals and the private sector with raw data for research or innovation. Many already use such information to create useful apps, or to develop information maps that place government data in an interactive and accessible geographic context.
One of the challenges, however, is ensuring that the data sets provided by government are accurate, complete and fit for the purpose to which they are put. Not only must governments ensure that they are providing current data and appropriate updates, they must also include the meta data necessary for users to understand the scope and limitations of the data set.
Where the data includes personal information (including home addresses) it would seem that the onus should be even higher on governments to ensure that the information being provided is current, or that the limitations of the data set are clearly identified. Of course, there is also an onus on the party using the information to ensure that they understand the limits of the data set.
Monday, 22 October 2012 15:10
Volunteered geographic information (VGI) is a relatively recent and rapidly emerging phenomenon. In general terms, it involves the dissemination of geographic information, or of other information placed in geographic context, by individuals or groups of individuals. This would cover collaborative online mapping projects such as Wikimapia and OpenStreetMap, where individuals contribute geographical information to crowd-sourced maps. It would also cover a broad range of other types of user-generated map content. This can include the mapping of information by an individual or group of individuals (see, for example, the maps created by Patrick Cain), or the crowd-sourcing of information that is placed in a geographic context (consider, for example, the disaster maps created in the wake of the Fukishima nuclear disaster, or the earthquake in Haiti). While VGI projects may be led by amateurs, VGI is increasingly being considered as an important source of geographic information by private sector companies and by governments. For example, both TomTom and Google have found ways to incorporate geographic information supplied by users into their products, and governments are also considering ways in which VGI may be used to enhance existing maps or databases.
Volunteered geographic information may simply be raw geographic data (such as the co-ordinates of a point of interest). However, there is no limit to the kind of information that can be placed in geographic context. VGI may include geo-referenced photographs; it may also include text descriptions of places, objects or phenomena, audio or video content. It is a form of user-generated content (UGC) that is distinctive because the content is situated in relation to physical space. VGI shares other characteristics of the broader UGC phenomenon in that it is made possible by the broad accessibility of the tools and devices necessary to enable ordinary individuals without special skills or training to participate in the creation and dissemination of knew knowledge and content. Easily available tools such as the Google Maps application programming interface (API), or sites such as Tagzania.com or Wayfaring.com support the creation of maps by non-experts. Hand held GPS devices (now available on most smart phones) also give ordinary individuals powerful tools to record and transmit relatively precise geographic data.
Volunteered geographic information may be relied upon for a variety of reasons. As with other crowd-sourcing initiatives, VGI may offer an alternative to commercial products. In some cases, crowd-sourced maps may fill in gaps in the market, as where the mapping of a particular region or phenomenon is not a priority for commercial map publishers. Projects that place other types of information in geographic context can offer new ways of thinking about social, economic or political phenomena. Crowd-sourced disaster maps may offer real-time tools for dealing with rapidly developing events. In some cases, VGI initiatives offer a means of gathering information that might otherwise be too difficult or too costly to collect.
The legal and ethical issues raised by the VGI phenomenon are only now beginning to be explored. The mapping of VGI can raise a wide range of privacy issues. Further, as with many other types of UGC, intellectual property rights issues may frequently arise. Concerns have also been raised about the potential liability not just of those who publish or host VGI-based maps, but also of those who contribute data to such projects. In a recent article I explore identify and examine a number of these issues from the perspective of the host of VGI content, the supplier of VGI, and the user of VGI-based products or services.
Canadian Trademark Law
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Electronic Commerce and Internet Law in Canada, 2nd Edition
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Intellectual Property for the 21st Century
Intellectual Property Law for the 21st Century: