access to information Ambush Marketing big data citizen science confidential information copyright copyright misuse data protection digital cartography ecommerce and internet law Electronic Commerce Extraterritoriality fair use freedom of expression Geospatial geospatial data intellectual property Internet internet law IP open courts open data open government personal information pipeda Privacy trademark law trademarks traditional knowledge transparency
Monday, 19 December 2016 08:52
Municipalities are under growing pressure to become “smart”. In other words, they will reap the benefits of sophisticated data analytics carried out on more and better data collected via sensors embedded throughout the urban environment. As municipalities embrace smart cities technology, a growing number of the new sensors will capture data in real time. Municipalities are also increasingly making their data open to developers and civil society alike. If municipal governments decide to make real-time data available as open data, what should an open real-time data license look like? This is a question Alexandra Diebel and I explore in a new paper just published in the Journal of e-Democracy.
Our paper looks at how ten North American public transit authorities (6 in the U.S. and 4 in Canada) currently make real-time GPS public transit data available as open data. We examine the licenses used by these municipalities both for static transit data (timetables, route data) and for real-time GPS data (for example data about where transit vehicles are along their routes in real-time). Our research reveals differences in how these types of data are licensed, even when both types of data are referred to as “open” data.
There is no complete consensus on the essential characteristics of open data. Nevertheless, most definitions require that to be open, data must be: (1) made available in a reusable format; (2) prepared according to certain standards; and (3) available under an open license with minimal restrictions or conditions imposed on reuse. In our paper, we focus on the third element – open licensing. To date, most of what has been written about open licensing in general and the licensing of open data in particular, has focused on the licensing of static data. Static data sets are typically downloaded through an open data portal in a one-time operation (although static data sets may still be periodically updated). By contrast, real-time data must be accessed on an ongoing basis and often at fairly short intervals such as every few seconds.
The need to access data from a host server at frequent intervals places a greater demand on the resources of the data custodian – in this case often cash-strapped municipalities or public agencies. The frequent access required may also present security challenges, as servers may be vulnerable to distributed denial-of-service attacks. In addition, where municipal governments or their agencies have negotiated with private sector companies for the hardware and software to collect and process real-time data, the contracts with those companies may require certain terms and conditions to find their way into open licenses. Each of these factors may have implications for how real-time data is made available as open data. The greater commercial value of real-time data may also motivate some public agencies to alter how they make such data available to the public.
While our paper focuses on real-time GPS public transit data, similar issues will likely arise in a variety of other contexts where ‘open’ real-time data are at issue. We consider how real-time data is licensed, and we identify additional terms and conditions that are imposed on users of ‘open’ real-time data. While some of these terms and conditions might be explained by the particular exigencies of real-time data (such as requirements to register for the API to access the data), others are more difficult to explain. Our paper concludes with some recommendations for the development of a standard for open real-time data licensing.
This paper is part of ongoing research carried out as part of Geothink, a partnership grant project funded by the Social Sciences and Humanities Research Council of Canada.
Tuesday, 27 September 2016 06:32
Note: I was invited by Canada’s Information Commissioner and the Schools of Journalism and Communication, and Public Policy and Administration at Carleton University to participate in a workshop to launch Right to Know Week 2016. This was a full afternoon workshop featuring many interesting speakers and discussions. This blog post is based on my remarks at this event.
For the last 5 years or so, governments at all levels across Canada have been embracing the open government agenda. In doing so, they have expressed, in various ways, new commitments to open data, to the proactive disclosure of government information, and to new forms of citizen engagement. Given that the core goals of the open government movement are to increase government transparency and accountability in the broader public interest, these developments are positive ones.
There is a risk, however, that public commitments to open government have become a bit of a ‘feel good’ thing for governments. After all, what government doesn’t want to publicly commit to being open, transparent and accountable? As a result, it is important to look behind the rhetoric and to examine the nature of the commitments made to open government in Canada and to question how meaningful and enduring they really are.
For the most part, commitments to open government in Canada have been manifested in declarations, policy documents, and directives. These documents express government policy and provide direction to government actors and institutions. Yet they are “soft law” at best. They are not enacted through a process of legislative debate, they are not expressed in laws that would have to be formally repealed or amended in order to be altered, there are no enforcement or compliance mechanisms, and they remain subject to change at the whim of the government in power. Directives and policies, of course, can provide rapid and responsive mechanisms for operationalizing changes in government direction, and so I am not criticizing decisions to set open government in motion through these various means. But I am suggesting that a longer term commitment to open government might require some of these measures to be expressed in and supported by legislation in order to become properly entrenched.
For example, much effort has been invested by the federal government in creating an open licence to facilitate reuse of government data and information. After a slow and sometimes painful process, we now have a pretty good open government licence. It is based on the UK OGL and is very user friendly compared to earlier iterations. It is bilingual and it can be customized to be used by governments at all levels in Canada (for example, a version of this licence was just adopted by city of Ottawa). This reduces the burden on provincial and municipal governments contemplating open government and it creates the potential for greater legal interoperability (when users combine data or information from a number of different governments in Canada).
But let us not forget why we need an open government licence in Canada. An open licence permits the public to make use of works that are protected by copyright without the need to ask permission or pay royalties, and with the fewest restrictions on re-use as possible. Government works in Canada – and this includes court decisions, statutes, Hansard, government reports, studies, to name just a few – are protected by copyright under section 12 of the Copyright Act. One might well ask why, instead of toiling for years to come up with the current open licence, the government has not shown its commitment to openness by abolishing Crown copyright. It’s not as radical as it might sound. In the U.S., s. 105 of the Copyright Act expressly denies protection to works of the U.S. government without any obvious negative consequences. In the U.S., these works are automatically in the public domain. This legislated, hard law solution makes the commitment real and relatively permanent. Yet as things stand in Canada, government works are protected by copyright by default, and governments choose which works to make available under the open licence and which they wish to provide under more onerous licence terms. They can also decide at some point to tear up the open licence and go back to the way things used to be. Crown copyright in its current incarnation sets the default at ‘closed’.
It is true that some aspects of open government are already part of our legislative framework. We have had freedom of information/access to information laws for decades now in Canada, and these laws enshrine the principle of the public’s right to access information in the hands of government. However, the access to information laws that we have are ‘first generation’ when it comes to open government. The federal Act is currently being reviewed by Parliament, and we might see some legislative change, though how much and how significant remains to be seen. As Mary Francoli has pointed out, there wasn’t really a need for further review – the new government had plenty of material on which to take action in proposing amendments to the Act.
The many deficiencies in the Access to Information Acthave been well documented. For example, in 2015 the Information Commissioner set out 85 proposed reforms to the statute to modernize and improve it. The June 2016 Report by the Standing Committee on Access to Information, Privacy and Ethics on its Review of the Access to Information Act takes up many of these proposals in its own recommendations for extensive reforms to the Act. We are now awaiting the government’s response to this report. Rather than review the many recommendations already made, I will highlight those that relate to my broader point about enshrining open government principles in legislation
The Access to Information Act as it currently stands is premised on a model of individuals asking for information from government, waiting patiently while government puts together the requested information, and then complaining to the Commissioner when too much information is redacted or withheld. Open government promises both information and data proactively, in reusable formats, and without significant restrictions on reuse. While proactive disclosure of information and open data cannot replace the access to information model (which is, itself, capable of considerable improvement), they will provide quicker, cheaper and more effective access in many areas. Yet the Access to Information Act does not currently contain any statement about proactive disclosure. Proactive disclosure – also referred to as “open by default” is not really “open by default” unless the law says it is. Until then, it is just an aspirational statement and not a legal requirement. We see a proliferation of policies and directives at all levels of government that talk about proactive disclosure, but there are not firm legal commitments to this practice, or to open data. And, although I have been focussing predominantly on the federal regime, these issues are relevant across all levels of government in Canada.
A core principle of open data is that the data sets provided by governments should be made available in open, accessible and reusable formats. Proactive disclosure of information should also be in reusable formats. Access under the conventional regime is also enhanced when the information disclosed is in formats that facilitate analysis and reuse. Yet even under the existing access model, there is no default requirement to provide requested information in open, accessible and reusable formats. It is important to remember that it is not enough just to provide ‘access’ – the nature and quality of the access provided is relevant. The format in which information is provided in a digital age can create a barrier to the processing or analysis of information once accessed.
I would like, also, to venture onto territory that is not addressed in the calls for reform to access to information laws. Another challenge that I see for open data (and open information) in Canada relates to the sources of government data. I am concerned about the lack of controls over the use of taxpayer dollars to create closed data. As we move into the big data era, governments will be increasingly tempted to source their data for decision-making from private sector suppliers rather than to generate it in-house. We are seeing this already; an example is found in recent decisions of some municipal governments to source data about urban cycling patterns from cycling app companies. There will also be instances where governments contract with the private sector to install sensors to collect data, or to process it, and then pay licence fees for access to the resulting proprietary data in the hands of the private sector companies. In these cases, the terms of the license agreements may limit public access to the data or may place significant restrictions on its reuse. This is a big issue. All the talk about open government data will not do much good if the data on which the government relies is not characterized as “government data”. It is important that governments develop transparent policies around contracts for the collection, supply or processing of data that ensure that our rights as members of the public to access and reuse this data – paid for with our tax dollars – are preserved. Even better, it might be worth seeing some principle to this effect enshrined in the law.
Monday, 20 June 2016 07:10
The federal government has just released for public comment its open government plan for 2016-2018. This is the third such plan since Canada joined the Open Government Partnership in 2012. The two previous plans were released by the Conservative government, and were called Canada’s Action Plan on Open Government 2012-2014 and Canada’s Action Plan on Open Government 2014-2016. This most recent plan is titled Canada’s New Plan on Open Government (“New Plan”). The change in title signals a change in approach.
The previous government structured its commitments around three broad themes: Open Data, Open Information and Open Dialogue. It is fair to say that it was the first of these themes that received the greatest attention. Under the Conservatives there were a number of important open data initiatives: the government developed an open data portal, an open government licence (modeled on the UK Open Government Licence), and a Directive on Open Government. It also committed to funding the Open Data Exchange (ODX) (a kind of incubator hub for open data businesses in Canada), and supported a couple of national open data hackathons. Commitments under Open Information were considerably less ambitious. While important improvements were made to online interfaces for making access to information requests, and while more information was provided about already filled ATIP requests, it is fair to say that improving substantive access to government information was not a priority. Open dialogue commitments were also relatively modest.
Canada’s “New Plan” is considerably different in style and substance from its predecessors. This plan is structured around 4 broad themes: open by default; fiscal transparency; innovation, prosperity and sustainable development; and engaging Canadians and the world. Each theme comes with a number of commitments and milestones, and each speaks to an aspirational goal for open government, better articulating why this is an initiative worth an investment of time and resources.
Perhaps because there was so great a backlash against the previous government’s perceived lack of openness, the Liberals ran on an election platform that stressed openness and transparency. The New Plan reflects many of these election commitments. As such, it is notably more ambitious than the previous two action plans. The commitments are both deeper (for example, the 2014-2016 action plan committed to a public database disclosing details of all government contracts over $10,000; the New Plan commits to revealing details of all contracts over $1), and more expansive (with the government committing to new openness initiatives not found in earlier plans).
One area where the previous government faced considerable criticism (see, for example Mary Francoli’s second review of Canada’s open government commitments) was in respect of the access to information regime. That government’s commitments under “open information” aimed to improve access to information processes without addressing substantive flaws in the outdated Access to Information Act. The new government’s promise to improve the legislation is up front in the New Plan. Its first commitment is to enhance access to information through reforms to the legislation. According to the New Plan, these include order-making powers for the Commissioner, extending the application of the Access to Information Act to the Prime Minister and his Ministers’ Offices, and mandatory 5-year reviews of the legislation. Although these amendments would be a positive step, they fall short of those recommended by the Commissioner. It will also be interesting to see whether everything on this short list comes to pass. (Order-making powers in particular are something to watch here.) The House of Commons Standing Committee on Access to Information, Privacy and Ethics has recently completed hearings on this legislation. It will be very interesting to see what actually comes of this process. As many cynics (realists?) have observed, it is much easier for opposition parties to be in favour of open and transparent government than it is for parties in power. Whether the Act gets the makeover it requires remains to be seen.
One of the interesting features of this New Plan is that many of the commitments are ones that go to supporting the enormous cultural shift that is required for a government to operate in a more open fashion. Bureaucracies develop strong cultures, often influenced by long-cherished policies and practices. Significant change often requires more than just a new policy or directive; the New Plan contains commitments for the development of clear guidelines and standards for making data and information open by default, as well as commitments to training and education within the civil service, performance metrics, and new management frameworks. While not particularly ‘exciting’, these commitments are important and they signal a desire to take the steps needed to effect a genuine cultural shift within government.
The New Plan identifies fiscal transparency as an overarching theme. It contains several commitments to improve fiscal transparency, including more extensive and granular reporting of information on departmental spending, greater transparency of budget data and of fiscal analysis, and improved openness of information around government grants and other contributions. The government also commits to creating a single portal for Canadians who wish to search for information on Canadian businesses, whether they are incorporated federally or in one of the provinces or territories.
On the theme of Innovation, Prosperity and Sustainable Development, the New Plan also reflects commitments to greater openness in relation to federal science activities (a sore point with the previous government). It also builds upon a range of commitments that were present in previous action plans, including the use of the ODX to stimulate innovation, the development of open geospatial data, the alignment of open data at all levels of government in Canada, and the implementation of the Extractive Sector Transparency Measures Act. The New Plan also makes commitments to show leadership in supporting openness and transparency around the world.
The government’s final theme is “Engaging Canadians and the World”. This is the part where the government addresses how it plans to engage civil society. It plans to disband the Advisory Panel established by the previous government (of which I was a member). While the panel constituted a broad pool of expertise on which the government could draw, it was significantly under-utilized, and clearly this government plans to try something new. They state that they will “develop and maintain a renewed mechanism for ongoing, meaningful dialogue” between the government and civil society organizations – whatever that means. Clearly, the government is still trying to come up with a format or framework that will be most effective.
The government also commits in rather vague terms to fostering citizen participation and engagement with government on open government initiatives. It would seem that the government will attempt to “enable the use of new methods for consulting and engaging Canadians”, and will provide support and resources to government departments and agencies that require assistance in doing so. The commitments in this area are inward-looking – the government seems to acknowledge that it needs to figure out how to encourage and enhance citizen engagement, but at the same time is not sure how to do so effectively.
In this respect, the New Plan offers perhaps a case in point. This is a detailed and interesting plan that covers a great deal of territory and that addresses many issues that should be of significant concern to Canadians. It was released on June 16, with a call for comments by June 30. Such a narrow window of time in which to comment on such a lengthy document does not encourage engagement or dialogue. While the time constraints may be externally driven (by virtue of OGP targets and deadlines), and while there has been consultation in the lead up to the drafting of this document, it is disappointing that the public is not given more time to engage and respond.
For those who are interested in commenting, it should be noted that the government is open to comments/feedback in different forms. Comments may be made by email, or they can be entered into a comment box at the bottom of the page where the report is found. These latter comments tend to be fairly short and, once they pass through moderation, are visible to the public.
Tuesday, 23 February 2016 10:46
I was at the United Nations last week for an Expert Group Meeting on Moving from commitments to results in building effective, accountable and inclusive institutions at all levels. On February 18, 2016, I gave a presentation on balancing privacy with transparency in open government. This is a challenging issue, and one that is made even more so by digitization, information communication technologies and the big data environment.
Openness access to government information and data serve the goals of greater transparency and greater public trust in government. They are essential in fighting corruption, but they are also important in holding governments to account for their decision-making and for their spending of public funds. However, transparency must also be balanced against other considerations, including privacy. Privacy is a human right, and it protects the dignity, autonomy and integrity of individuals. Beyond this, however, the protection of privacy of personal information in the hands of governments also enhances public trust in governments and can contribute to citizen engagement.
How, then, does one balance privacy with transparency when it comes to information in the hands of government? There are no easy answers. My slides from my presentation can be found here, and these slides contain some links to some other publicly available work on this topic.
Tuesday, 09 February 2016 10:19
Carleton University’s Mary Francoli has just released her second report on Canada’s progress towards its Open Government commitments as part of its membership in the Open Government Partnership. The report is currently open for public comment.
The report offers a detailed and thorough assessment of the commitments made by the Canadian government in its second Action Plan on Open Government and the extent to which these commitments have been met. For those interested in open government, it makes interesting reading, and it also sets out a number of recommendations for moving the open government agenda forward in Canada.
Because the report is a review of Canada’s progress on meeting its commitments, it is shaped by those commitments rather than by, for example, a list of open government priorities as identified by multiple stakeholders. Indeed, problems with stakeholder consultation and engagement are themes that run through this report. Although Francoli notes that there have been improvements over time, there is clearly still work to be done in this regard.
Francoli’s detailed review shows that progress has certainly been made in moving forward the open government agenda. She notes that “significant progress” has been made with respect to many of the government’s commitments in the second Action Plan, and that in some cases the government’s progress has exceed its commitments. Not surprisingly, however, much remains to be done. Francoli identifies a number of shortcomings flagged by stakeholders that form the basis for her recommendations.
Foremost among the shortcomings is the woeful state of Canada’s Access to Information Act. Although this legislation has been the subject of criticism and calls for reform for decades – and by a broad range of stakeholders – the previous government remained impervious to these demands. That an open government agenda could be advanced with much fanfare without tackling access to information in any substantive way should undermine confidence in Canada’s commitment to open government. Top among Francoli’s recommendations, therefore, is reform of the legislation, and she has written a separate opinion piece on this topic in the Hill Times. In this article she notes with frustration that although the new Liberal government expressed a commitment to reform the access to information regime in its election platform, that commitment is now being expressed in terms of a “review” of the legislation. Francoli justifiably questions whether we really need further review given the many studies already conducted and the ink already spilled about the deficiencies in the legislation. A commitment to meaningful reform might just require swifter action.
Other issues flagged by Francoli include what she refers to as a “data deficit” – the apparent stalling of progress in the release of open data and the lack of diversity in the available data at the federal level. The concerns over a data deficit extend to the cancellation of government-led data collection; the axing of the long-form census being perhaps the most notorious (though not the only) example of this. Although the census has been revived, Francoli notes that other cancelled studies have not. Further, Francoli cautions that the government’s web renewal strategy is having the effect of pushing departments and agencies to reduce digital content available over the web, with the resultant loss of content available to the public. This latter concern ties in as well to Francoli’s recommendation that the government develop and publicize a clear policy on the preservation of digital material.
In addition to recommendations related to these issues, Francoli also recommends that the government overhaul the Advisory Panel on Open Government. This Panel (on which I served) met only very rarely, and opportunities to provide feedback became very limited by tight time constraints imposed on the few meetings that did take place. Francoli is concerned about a disjunction between stakeholders’ perspectives on open government and those of the government, and she sees an Advisory Panel with a new mandate and a new mode of operation as being one way to ensure more open lines of communication.
There may be a common misperception that open data and proactive disclosure are inexpensive and resource-light endeavors (after all, the government is just publishing online information already gathered, right?). Yet, this is far from the case. Open data in particular is resource-intensive, and Francoli notes that the two Action Plans had identified no additional resources for open government (apart from the $3 million dollars set aside for the mysterious Open Data Exchange (ODX)). She therefore also recommends that the government commit the necessary resources to open government in future action plans.
Francoli’s report can be found here, and comments on the report can be made here. The comments are public, and it is also possible to read comments by other stakeholders and to engage in dialogue about the report. With a new government in the process of setting its open government agenda, this is an opportunity to help shape its direction.
Tuesday, 24 November 2015 11:08
A new paper by uOttawa Common Law student Niki Singh and myself, and published in the Journal of e-Democracy, explores the issue of how to unroll open data programs in officially bi- or multi-lingual jurisdictions. Our focus is on Canada, although similar issues may arise in other jurisdictions with more than one official language.
The issue of linguistic equality in open data initiatives is particularly important if one takes into account the civic engagement dimensions of open government as well as the potential for use of open data by civil society organizations to meet their diverse goals. To date, at least at the federal level in Canada, there has been a strong emphasis on using open data to stimulate innovation. Much less emphasis has been placed, at least at the policy level, on using open government data to promote transparency or to support the work of civil society groups. The capacity of many civil society groups in Canada to work effectively with open data is even open to question. The necessary skills and expertise to work with open data may not yet be available to all such groups. In this context, then, compliance with the letter and spirt of official language policies requires a focus not just on bilingual data and bilingual tools to access the data (although these are certainly important), it also requires support for digital and data literacy that effectively reaches the different linguistic communities.
A few years ago, Jo Bates wrote an interesting article that explored whether and to what extent open government data initiatives within a neo-liberal frame may seek to offload responsibility for the delivery of some information-based government services to the private sector. In other words, rather than have the government develop and deliver information-based services to the public, the government might make its data available as open data and let the private sector develop useful apps involving that data. Evidence of this neo-liberal approach to information policy is present in Canada. For example, the decision of the last federal government in Canada to abolish the long form census was in part justified on the (controversial) view that equivalent data could be sourced from the private sector. If open data regimes operate within this neo-liberal frame, it is important also to consider the fate of minority language communities (among others) as data-related analysis and services are offloaded to the private sector.
Using the efforts and obligations of the Canadian federal government as a case study, our paper identifies some of the challenges posed by developing and implementing an open data agenda within an officially bilingual state. We consider two main issues. The first is whether open data initiatives might be used as a means to outsource some information analysis and information services to an unregulated private sector, thus directly or indirectly avoiding obligations to provide these services in both official languages. The second is whether the Canadian government’s embrace of the innovation agenda of open data leaves minority language communities underserved and under-included in the development and use of open data. Although ultimately the evidence at this early stage is inconclusive, the questions are important ones to be asking, particularly as a new federal government takes charge of the open data agenda in Canada.
Wednesday, 11 November 2015 08:17
The rise of big data analytics, combined with a movement at all levels of government in Canada towards open data and the proactive disclosure of government information have created a context in which privacy interests are increasingly likely to conflict with the goals of transparency and accountability. In some cases these conflicts may be small and easily reconciled, but in other cases they may be more substantial. In addition, some means of reconciling the conflict must be found; where privacy and transparency conflict, for example, which value should prevail and under what conditions?
Conflicts between transparency and privacy have been seen recently in, for example, concerns expressed over the amount of personal information that might be found in court and tribunal decisions that are published online. Sunshine lists – lists of salaries of public employees that are over a certain amount – also raise issues. Provinces that publish such lists have tended to do so using file formats that do not lend themselves to easy digital manipulation. But of course these modest technological barriers are routinely overcome, and individual name and salary information is absorbed into the big data universe for purposes quite distinct from meeting a government’s transparency objectives. Open municipal data files may include information about specific individuals: for example, a database of all home renovation permit applications would have privacy implications for those individuals who applied for such permits. Even with names were redacted, it is easy enough to identify the owners of any homes for which renovation permits were obtained. In some cases, the level of connection may be less direct. For example, a public restaurant inspection record that cited kitchen staff at a small local restaurant for failure to wash their hands on a specific inspection date might indirectly reveal the identity of the persons who did not wash their hands, particularly if the staff of the restaurant is quite small. And, of course, in the big data context, even anonymized data, or data that is not personal information on its face, can be matched with other available data to identify specific individuals.
The point is not that the disclosure of such information must be avoided at all costs – rather, the issue is how to determine where to draw the line between privacy and transparency, and what steps might be taken to protect privacy while still ensuring transparency. No new legislative framework has been created to specifically guide the move towards open government in Canada, notwithstanding the fact that government data is fuel for the engines of big data.
In a paper that has just been published by the Alberta Law Review, my co-author Amy Conroy and I explore these issues, using a recent Supreme Court of Canada decision as a departure point for our analysis. Although the Court’s decision in Ministry of Community Safety and Correctional Services v Information and Privacy Commissioner (Ontario) (Ministry of Community Safety) does not specifically address either open data or proactive disclosure, the case nevertheless offers important insights into the gaps in both legislation and case law in this area.
In our paper we consider the challenges inherent in the release of government data and information either through pro-active disclosure or as open data. A key factor in striking the balance between transparency and privacy is the definition of personal information – information that is not personal information has no privacy implications. Another factor is, of course, the meaning given to the concept of transparency. Our paper considers how courts and adjudicators understand transparency in the face of competing claims to privacy. We challenge the simple equation of the release of information with transparency and argue that the coincidence of open government with big data requires new approaches that are informed by the developing relationship between privacy and transparency.
“Promoting Transparency While Protecting Privacy in Open Government in Canada” by Amy Conroy and Teresa Scassa is published in (2015) 53:1 Alberta Law Review 175-206. A pre-print version is available here.
Monday, 05 October 2015 07:45
A recent (though not yet in force) amendment to Canada’s Trade-marks Act will permit an unprecedented purging of trademark records in Canada. This destruction of records should be understood within the disturbing context described in a recent Maclean’s article by Anne Kingston, titled “Vanishing Canada: Why We’re All Losers in Canada’s War on Data”.
The new section 29.1 is aptly titled “Destruction of Records”. It provides that, notwithstanding the Registrar’s duty to maintain trademark data and documentation for public view, the Registrar may still destroy a broad range of documents. These can include applications for trademarks that are refused or abandoned, documents relating to trademarks that have been expunged, documents relating to any request for public notice to be given of an official mark that has been abandoned, refused or invalidated, and documents relating to objections to geographical indications that are removed from the list of geographical indications. All of these documents may be destroyed 6 years after the final action on the file.
Since 1997, the Registrar has been maintaining an electronic register of trademarks. This register is publicly accessible and searchable. However, it does not provide electronic access to the underlying documentation relating to the registrations. This information has nonetheless been available for public consultation, and is also available through access to information requests. While it is now possible to file trademark applications online, thus replacing paper with digital documents, this option has not always been available and there is still a great deal of paper floating about. All this paper obviously takes up a significant amount of space. How should the problem be addressed? One option is to begin the process of digitization; paper records can be destroyed once digital copies are made. Digital copies would also allow for a vastly improved level of access. Another option is to just chuck it all out. It is this latter option, cheap and easy, that will be implemented by the new section 29.1 of the Trade-marks Act.
Of what use are the records at issue? Trademark lawyers have argued that information about past trademark applications – including those refused by the Registrar – is often used in trademark opposition proceedings and in litigation. The International Trademark Association (INTA) opposed section 29.1 in a written submission to the Parliamentary Committee that studied the Bill that introduced this provision. INTA stated that “the downside risk of losing public access to these documents outweighs the hardships to the Canadian Intellectual Property Office associated with maintaining those records.” INTA also noted that the Canadian approach was out of line with that in the United States and in Europe. INTA argued that the destruction of paper records should only take place after electronic copies have been made. The United States, for example, has created a searchable online resource to provide access to all of its records relating to all trademark applications, registered trademarks, Madrid Protocol applications and international registrations.
In addition to the relevance of this information to trademark practitioners, the soon to be destroyed information has research value as well. Canadian trademark law is a relatively under-researched area of Canadian intellectual property law. It would be a great shame if large volumes of data disappear just as research in this area begins to mature and expand.
What might a researcher distill from these records? Here’s one example. Official marks have long been criticized for giving “public authorities” an almost unlimited power to carve out trademark space for themselves without any of the usual checks and balances put in place to manage trademark monopolies in the public interest. Many official marks for which public notice has been given by the Registrar have later been invalidated by the courts either on the basis that the “public authority” seeking public notice was not really a public authority or on the basis that they had not actually adopted or used the mark in question. Once s. 29.1 takes effect, the paper records relating to official marks that have been invalidated will disappear after 6 years. The Registrar has become more rigorous in her examination of requests for official marks (within the limits of a law totally lacking in rigour in this respect). Because there is no application process for official marks, all that appears in the register of trademark is the actual public notice in successful cases. Records relating to failed requests for public notice will soon be subject to destruction after 6 years. This means that this information will disappear entirely and without a trace. What public authorities have sought official marks that have been refused? What was the basis for the refusal to give public notice? What entities claiming to be public authorities have attempted to get trademark protection through this avenue? What might the answers to these questions tell us about a regime that is badly in need of reform? The answers to these questions will become unknowable once s. 29.1 takes effect and the wholesale destruction of records begins.
Digitization of records is expensive, time-consuming and labour intensive. But if paper records are destroyed before digitization takes place there is simply no way to recreate the information. It is lost forever. I have given only a few examples of the potential relevance of the information that is set to be destroyed once s. 29.1 comes into force. Let’s hope it never does. The concepts of open government and open data are only meaningful if there is something left to see once the doors are opened.
Published in Trademarks
Tuesday, 23 June 2015 08:16
The Privacy Commissioner of Canada has issued his findings in relation to the investigation of multiple complaints by Canadians regarding the collection, use and disclosure of their personal information by a company based in Romania. The company, Globe24h operates a website which it describes as a “global database of public records”. This global database contains a substantial number of decisions from Canadian courts and administrative tribunals. Some of this content was acquired by scraping court or tribunal websites, or websites such as CanLII. (I wrote about this situation earlier here.)
The problem, from a privacy point of view is that many court and tribunal decisions contain a great deal of personal information. For example, a decision from a divorce case might provide considerable detail about personal assets. Immigration or refugee determination hearings similarly might reveal sensitive personal information. As Commissioner Therrien noted in his findings, the “highly detailed, highly sensitive personal information” found in the decisions that were the focus of the complaints in this case “could have negative reputation impacts (including financial information, health information, and information about children)” (at para 27). Globe24h offers a fee-based service for removal of personal information. A number of the complainants in this case had paid up to 200 euros to have their information removed from decisions in the database.
The Romanian company responded to the investigation by arguing that the Office of the Privacy Commissioner of Canada had no jurisdiction over its activities; and that if it did, Canada’s Personal Information Protection and Electronic Documents Act did not apply because it was engaged in journalistic activities. Alternatively, they argued that they were making use of publicly available information, for which consent is not required under PIPEDA. In this admittedly long blog post, I look at a number of different issues raised in the Commissioner’s findings. You can jump ahead if you like to: Open courts principle and privacy; Extended territorial jurisdiction; Journalism exception; Publicly available personal information; or Crown copyright – the unspoken issue.
The open courts principle – which provides transparency for the justice system in Canada – dictates that decision-makers provide reasons for their decisions and that these decisions be publicly accessible. In the old days, decisions were published in law reports or made available for consultation at court offices. Either way, anyone interested in a particular case had to make some effort to track it down. Decisions were indexed according to subject matter, but were not easily searchable by individual names. The capacity to make court decisions publicly available on the Internet has dramatically increased the ability of the public to access court decisions (and, given the high cost of legal services and the growing number of self-represented litigants, it is not a moment too soon). However, public availability of court decisions on the Internet can raise significant privacy issues for individuals involved in litigation. There is a big difference between accepting that a court decision in one’s case will be published in the interests of transparency and having one’s personal information sucked up and spit out by search engines as part of search results unrelated to the administration of justice.
The main response to this problem to date (from the Canadian Judicial Council’s 2005 Model Policy for Access to Court Records) has been for courts to require the use of technological measures on court websites (and on websites such as CanLII) to prevent search engines from indexing the full text of court decisions. This means that those searching online using a particular individual’s name would not find personal details from court proceedings caught up in the search results. However, these licence terms are only imposed on entities such as CanLII. The general copyright licences on court websites place no such restrictions on the reproduction and use of court decisions. Of course, placing restrictions on the searchability/usability of published decisions can also be a barrier to their innovative reuse. A better approach – or at least a complementary one – might be to be more restrained in the sharing of personal information in published decisions. This latter approach is one recommended by the Office of the Privacy Commissioner of Canada for administrative tribunals. It is unevenly adopted by courts and tribunals in Canada.
While the open courts principle and how Canadian courts and tribunals implement it are relevant to the problem in this case, the Commissioner’s decision does not address these issues. The complaints focussed on the activities of the Romanian company and not on how courts and tribunals manage personal information. Nevertheless, this issue is, to a large extent, at the heart of the problem in this case.
Under basic international law principles, countries cannot apply their laws outside of their own borders. So how could Canadian law apply to a Romanian company’s activities? The answer lies in what some co-authors of mine and I call extended territorial jurisdiction. This arises where activities outside a country’s borders are nonetheless closely connected to that country. After receiving over 20 complaints from Canadians regarding the hosting of their personal information on the Globe24h website, the Privacy Commissioner chose to apply Canada’s PIPEDA to the Romanian company. He did so on the basis that the company was collecting, using and disclosing personal information in the course of commercial activities (key triggers for PIPEDA’s application) and that its activities had a “real and substantial connection” to Canada. This connection was found in the fact that the company chose to include Canadian court and tribunal decisions in its database; that it sourced this material from websites located in Canada; that it accepted requests from Canadians to remove their personal information from its databases; and that it charged Canadians a fee to perform this service. While the company would be subject to Romanian data protection law in general, the Commissioner did not see this as an impediment to applying Canadian law in the specific circumstances. He noted that “It is commonplace in today’s global environment that organizations with an online presence may be subject to data protection laws in multiple jurisdictions depending on the nature of their activities.” (at para 100)
This approach is consistent with that taken by the Office of the Privacy Commissioner of Canada since the Federal Court handed down its decision on this point in Lawson v. Accusearch Inc. Of course, taking jurisdiction over a party in another country and being able to enforce outcomes in accordance with Canadian law are separate matters. In any event, the Privacy Commissioner is relatively toothless even within Canada; in the case of offshore companies any positive results depend largely upon a respondent’s willingness to cooperate with investigations and to change their practices with some gentle nudging. In this case, there seems to be a change of practice on the part of Globe24h, although the extent and durability of this change remain to be seen.
I have previously written about the rather broad and open-ended exception to the application of PIPEDA to the collection, use or disclosure of personal information for “journalistic purposes”. Journalism is capable of a fairly broad interpretation, and in an era of disintermediated information and commentary, a broad approach to this exception is warranted. This may be even more so the case given the Supreme Court of Canada’s recent admonition that privacy laws must be balanced with the freedom of expression. However, an overly broad approach could exclude large swaths of activity from the scope of PIPEDA.
In this case, Globe24h argued that by providing a database of legal information it was entitled to benefit from the journalistic purposes exception. The Commissioner adopted a definition of “journalism” put forward by the Canadian Association of Journalism (CAJ). According to this definition journalism is an activity that has as its goal the communication of information, in a format that has “an element of original production” and that “provides clear evidence of a self-conscious discipline calculated to provide an accurate and fair description of facts, opinion and debate at play within a situation.” (at para 52). The definition is interesting, but it may be under inclusive when it comes to balancing freedom of expression and privacy. This remains an open question. Using this definition, the Commissioner found that the database of public records compiled by Globe24h was not journalism. In particular, he was of the view that the purpose of the database was to generate revenue from different means, including charging individuals who wish to have their personal information removed. He also found that the database did not embody the “original production” required in the CAJ’s definition, and concluded that “Globe24h is republishing information already available online through Canadian court and tribunal websites in a manner that enables the information to be located by search engines, which would not otherwise be possible, so as to profit from individuals’ desire to have this practice stop.” (at para 66).
While there may be an argument that this website does not serve journalistic purposes, the analysis here relies heavily upon the Commissioner’s conclusion that the site’s primary motivation is to derive revenue from individuals who are concerned about their privacy. It is not clear whether, without that element, he would have found that the journalism exception applied. The importance of this poorly worded exception – and the potential of narrow interpretations to conflict with the freedom of expression – leaves one wishing for clearer guidance.
Globe24h also argued that it made use of publicly available personal information. PIPEDA expressly permits the collection, use and disclosure of such information without consent so long as it is used for the purposes for which it was collected and made publicly available. According to the Commissioner, the purpose for which the court decisions were made publicly available was “to promote transparency in the judicial system” (at para 93). He also went on to state that “the purpose for publishing court findings online does not include the association of such findings with individuals’ names in online search results.” (at para 92). The point here, I think, is that the search engine indexing shifts uses of this information away from transparency and towards data mining or snooping; the latter are not consistent with the purposes for which the information was made publicly available.
However, it should be noted that in this case, the assessment of purpose drifts into how the information might be accessed or manipulated by third parties –not by the respondent. This is rather tricky territory. It is a kind of secondary liability in the data protection context: court decisions are made publicly available to anyone around the world; the respondent creates a database that aggregates court decisions from multiple jurisdictions and makes them available. In doing so it enhances the searchability of the decisions by freeing them from technological restrictions. Has it done anything to take it outside the exception? Is the possibility that this new searchability might lead to improper uses of the information by others enough to find that the use does not fall within the exception? My point here is that the problem of excessive personal information in published court decisions seems to be pushed onto those who publish this information (and who thus facilitate the open courts principle), rather than resting with the courts who perhaps should be more careful in deciding what personal information is required to serve the open courts principle and what information is not.
In Canada, court and tribunal decisions are covered by Crown copyright. This lies behind the courts’ ability to dictate licence terms to those who publish these decisions. Recent amendments to the Copyright Act also make it an infringement to circumvent technological protection measures on copyright protected works. Had the Romanian website been publishing court decisions in contravention of the user licence provided by court websites or circumventing court-mandated technological protection measures that blocked the indexing of the court decisions by search engines, then the courts themselves might have sought takedown of these materials or insisted upon compliance with their licence terms. These terms, however, do not appear in the licence for federal court decisions, for decisions of Ontario superior courts, or for decisions of the BC Supreme Court – and this is just a sample. Whether courts should use copyright restrictions to protect privacy values is an interesting question, particularly in an era of increasingly open government. Whether it is realistic or feasible to do so is another good question – if it is not then the privacy issues must be addressed at source. In any event, it may be time for the CJC to revisit its digitally archaic 2005 policy.
The individuals affected by Globe24h turned to the Privacy Commissioner for help when they experienced privacy invasions as a result of the company’s activities. They found a sympathetic ear, and the Commissioner may have achieved some results for them. One can ask, though, where the courts and tribunals have been in all of this. As noted earlier, they should take the lead in addressing privacy issues in their decisions. In addition, while Crown copyright may be an anachronism with the potential to limit free speech, as long as the government clings to it in the face of calls for reform it might consider using it on occasion in circumstances such as these, where inadequate measures designed to protect privacy have failed Canadians and something more is required.
Tuesday, 26 May 2015 07:05
It’s a busy week for Open Government and Open Data in Ottawa. All week long conferences and workshops are taking place in the capital around the theme of open government. Yesterday’s Open Data Summit, hosted by organized by Open North, drew a good-sized audience of developers, public servants and academics from Canada and elsewhere. Later this week, the 3rd international Open Data Conference will unfold. There is also an open data Unconference on May 26.
The meetings are creating a buzz around open data – a practice that is spreading through all three levels of government in Canada. The Canadian government and provincial leaders such as Alberta and British Columbia have open data portals where government data sets are made available in machine readable formats for reuse by anyone under an open licence containing very few restrictions. Many municipalities, including Vancouver, Ottawa and Toronto have also embraced open data. The City of Edmonton, a leader in this area was given an open data award at the Open Data Summit.
Other recent developments of note relating to open data include the call for comments by the Ontario Government on its new plan for Open Data by Default. The draft document is made available to the public on Google docs. Anyone can visit and leave their comments or can view the many comments of those who have already visited the document. The document also contains, in an appendix, the open licence which the Ontario government will use in relation to its data. The licence is based upon the open government licence developed by the federal government.
Also of note is the rather low-profile launch by the federal government of the ODX. The creation of this open data incubator organization is part of the government’s Action Plan on Open Data, and funding to launch this institute was announced last week.
Meanwhile, the Geothink research team of which I am a part (funded by a Partnership Grant from the Social Sciences and Humanities Research Council of Canada) continues its work on open-data related research. Ongoing projects relate to open data standards, liability issues, privacy, intellectual property, civic participation, and much, much more. Several Geothinkers are attending and participating in this week’s Ottawa events.
Canadian Trademark Law
Published in 2015 by Lexis Nexis
Electronic Commerce and Internet Law in Canada, 2nd Edition
Published in 2012 by CCH Canadian Ltd.
Intellectual Property for the 21st Century
Intellectual Property Law for the 21st Century: