Darrell Evans: Challenging the B.C. government's abuse of Crown copyright

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      By Darrell Evans

      There are a lot of problems with getting information through B.C.’s freedom of information law, but at least now the provincial government has been forced to give up one stick it used to beat down information requests.

      That stick was one favoured by the motion picture and recording industries, and it is called copyright infringement. But the B.C. government came up with its own particularly nasty version of what Mickey Mouse’s lawyers use to crush their opponents.

      In Canada, governments have their very own form of copyright, called Crown copyright. It can be applied to almost anything produced by or for a government, from computer programs to telephone messages or briefing notes.

      As far as anyone can tell, only the B.C. government has tried to claim Crown copyright over material it was forced to release under freedom of information legislation. What they did was put a notice like this in with the records they were required to send under the act:

      These records are protected by copyright under the federal Copyright Act, pursuant to which unauthorized reproduction of works are forbidden. Permission of the copyright holder must be obtained prior to any reproduction, dissemination or sale of these records (including the posting of such records on the Internet). If you wish to reproduce a record or a portion of a record that is subject to Crown copyright, you must send a copyright request to the province’s Intellectual Property Program.

      Sounds a bit intimidating, doesn’t it? The average person getting one of these “friendly” notices with their documents might well be afraid to even look at the documents they received in broad daylight, never mind post them on the Web.

      When freelance journalist Stanley Tromp received one of these notices with one of his FOI requests, he and the B.C. Freedom of Information and Privacy Association filed a complaint with Information and Privacy Commissioner David Loukidelis. We said this was an attempt to intimidate requesters, and that the commissioner had the power to put a stop to it. The government said it was just trying to be “helpful” to keep requesters from inadvertently violating Crown copyright and getting into a whole bunch of trouble, and that because copyright is a federal jurisdiction, the commissioner had no power to look at it.

      The government admitted that there were only five reported breaches of Crown copyright in a year, that they only sent notices to certain requesters, and that the decision on whether or not copyright permission is required “is entirely dependant on the circumstances”. We said the notices were just like the letters citizens receive when they are being hit with a SLAPP suit for saying something a big corporation didn’t like.

      More than a year after the hearing, Commissioner Loukidelis informed FIPA that the B.C. government had agreed to stop sending out copyright notices to certain selected FOI requesters:

      Government has decided to cease including copyright notices in access to information disclosures and has confirmed that, effective immediately and government-wide, copyright notices will no longer be issued in conjunction with disclosure of records in response to access requests under FIPPA.

      However, the government hasn’t entirely given up the option of “going Disney” on some hapless FOI requester in the future. As the commissioner wrote in his letter to us:

      The Province has advised us, for clarity, that the fact that it will no longer include copyright notices in FIPPA disclosure packages does not change the fact that it “reserves the right to assert and/or enforce copyright in its materials in appropriate cases, including situations where such material is subject to an existing legal obligation of the Province (i.e., a licence) or someone makes copies of something purporting to be the official version of Provincial material, but which is out of date, and distribute those copies to others, thus creating the potential for inconvenience, or worse, to third party recipients of that material.

      The federal information commissioner highlighted the danger of abuse of Crown copyright in his 1991-92 annual report, stating:

      From an information commissioner’s perspective, the concept of a perpetual Crown copyright in any field richly deserves to be challenged. It is an antique curiosity essentially incompatible with the government’s own stated information policies and the spirit of the Access to Information Act.

      If you are interested in joining FIPA in challenging the “antique curiosity”, the federal government is now running a consultation on amending this country’s copyright laws. To raise your voice against this oppressive waste, go to the consultation Web site (before September 13) at copyright.econsultation.ca/.

      Darrell Evans is the executive director of the B.C. Freedom of Information and Privacy Association.