Teresa Scassa - Blog

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.

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 Data) addressed by the terms and conditions of this Agreement”. The claims, evident in these open licences, are repeated in more closed licences as well. The licence at issue in the Nautical Data case defined CHS data as “any data owned by Canada and maintained by CHS”.

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.

Published in Copyright Law
Friday, 01 February 2013 13:21

Update on Gun Permit Holder Information Map

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.

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.

The Federal government launched a new open data initiative in March 2011. One year in, the pilot project is growing and evolving. The government has also integrated the open data portal within a broader open government initiative. This initiative has three main components: open data, open information and open dialogue. The initiative is important, and it brings Canada into line with similar initiatives already underway in comparable democracies such as the United Kingdom, the United States, Australia and New Zealand, to name just a few. Of course, the open government movement has taken hold elsewhere in Canada too. Notable initiatives are found at the provincial government level in B.C., and in major municipalities such as Vancouver, Toronto, Edmonton and Ottawa.

The open data part of open government sees governments providing data sets to the public, free of cost and of most restrictions. The idea is stimulate innovation (allowing application developers, for example, to develop innovative ways to make use of the information); to improve services to the public (for example, applications involving public transit data have been hugely popular to transit system users); to allow researchers better access to data for analysis and study; and to improve government transparency. To be truly effective, data must be provided in usable (machine readable) formats; standardization of formats is important if different data sets are to be combined.

In a country such as Canada which still clings to Crown copyright, and where both Federal and Provincial crowns have asserted rights to their data (notwithstanding that copyright does not protect facts, only the original selection or arrangement of facts), the licensing of government data through open data initiatives is important. (See my own article on copyright in fact based works here; and an excellent piece by Elizabeth Judge on access to and use of public sector information here). The default position has been for the government to assert its rights. Open data requires a major cultural shift. This is clearly something that is still in process at the federal level in Canada. A look at the licence currently (as of March 16, 2012) available through the open government portal reveals a licence that in theory lets go of the data, but that does so wrapped in excessively legalistic formulations.

An important element of interoperability of data sets is the compatibility of the licences under which they are granted. There are real advantages to open government licences that evolve along very similar lines. The U.K. government developed an open government license that has the virtue of being accessible and user-friendly, and that clearly conveys the message that the data is there to be used as freely as possible. This licence has been used as a template for B.C.’s open data licence. The Canadian government portal is a work in process; let’s hope that a new version of the licence will soon be forthcoming.

<< Start < Prev 1 2 Next > End >>
Page 2 of 2

Canadian Trademark Law

Published in 2015 by Lexis Nexis

Canadian Trademark Law 2d Edition

Buy on LexisNexis

Electronic Commerce and Internet Law in Canada, 2nd Edition

Published in 2012 by CCH Canadian Ltd.

Electronic Commerce and Internet Law in Canada

Buy on CCH Canadian

Intellectual Property for the 21st Century

Intellectual Property Law for the 21st Century:

Interdisciplinary Approaches

Purchase from Irwin Law