Technology, Thoughts & Trinkets

Touring the digital through type

Crown, Copyright, and the CRTC

I’m in the middle of a large project (for one person), and as part of it I wanted to host some CRTC documents on the project’s web server to link into. You see, if you’ve ever been involved in one of the CRTC’s public notices you’ll know that there are literal deluges of documents, many of which are zipped together. For the purposes of disseminating documents over email this works well – it puts all of the documents from say, Bell, into a single zipped file – but makes a user-unfriendly structure of linking to: expecting casual reader to link to zip archives is unreasonable. Given that as part of this project I do want to facilitate ease of access to resources it’s important that users can link to the documents themselves, and not zip archives.

While I pay attention to copyright developments in Canada and abroad, and have strong stances on how academics and the Canadian government should licence their publications, I’m not a lawyer. I do, however, know that government documents in Canada are governed by Crown Copyright – unlike in the US, the Canadian government maintains copyright over its publications – and thus I wanted to check with the CRTC if there were any problems hosting documents from their site, including those presumably under a Crown copyright such as the CRTC’s decision.

Today I spoke with someone at the CRTC and received word that I could rehost the documents, without any problems. They were ‘in the public domain’ and so I could do with them what I wanted. I was pleased to hear this, as I wasn’t sure if the Reproduction of Federal Law Order would apply to the filings of private companies – it should apply to the CRTC’s decision itself, but as the order is written it’s ambiguous (to me) where and how private filings ‘fit’. In any case, I’ll take the CRTC’s word and be pleased that their public notice filings, including the filings by private corporations, are ‘public domain’ works and not governed by crown copyright. In case someone is wondering why I even bothered checking with the CRTC, given that my intended uses of the works arguably fall under under the research and review criteria of Canada’s fair dealing provisions, I expected that my use was legitimate but wanted to check with some lawyers that I was actually in the clear. I didn’t want to have a project go live, only to receive lawyer-grams from the CRTC or private companies! The CRTC has lawyers, and I thought it’d be a decent idea to draw on their expertise. Had I gotten a baffling response (e.g. no, for copyright reasons you cannot host anywhere else!) I’d have gotten a second opinion.

So, that’s fine and good: I can use the documents. It was the rest of the conversation that was particularly interesting, and more than a little disturbing.

I learned that the CRTC occasionally removes documents included in public filings and, far more significantly, sometimes changes the actual documents themselves without notifying anyone, not ever parties who were involved in the public notice. Such changes are made to correct misstatements of fact, to redact content already on the record or make available incorrectly redacted content, and so forth. This has far-reaching implications: closed public notices can have documented modified, where such modifications could potentially have affected public awareness of the notice as it was ongoing. In the case of some ‘corrections’, this could be incredibly important: what if in PN 2008-19 (and this is entirely hypothetical and meant as an example: I have ABSOLUTELY NO REASON TO BELIEVE THIS IS THE CASE) it turned out that one of TELUS’ redacted sentence was made available to the public, and it stated that TELUS was in early consideration stages of using Deep Packet Inspection in their networks? Such a ‘correction’ would have substantial effects on the arguments put forward by various civil advocates, and would render someone who was not involved with the public notice as it was ongoing very confused about the apparently contradictory filing between (in this example) TELUS and public advocacy groups. Thus, not only do these secretive changes risk contaminating later research, but it could also undermine public confidence in the public notice process itself.

The other very interesting copyright-related item that I learned was that, while hosting the documents isn’t a problem, were I to scrape and do a check-sum between what I have hosted and what the CRTC hosts that would be considered a copyright infringement. The gentleman I spoke with professed not understanding how that would be a copyright issue, and was just passing on the message from the lawyers, but it’s incredibly bizarre. In effect, it states (to me) that I can host but cannot check to guarantee that what I’m hosting is ‘the most accurate/recent version’ unless I want to eyeball the documents and look for ‘corrections’ that may or may not be announced anywhere in the document or public notice website itself. From a government transparency point of view, this is deeply concerning: members of the public, if aware of the potential for relatively secretive changes to public filings, cannot automate any system to watch for such changes without running afoul of lawyers. The resources thus required to ‘check up’ on the CRTC would be enormous for the poorly funded civil advocacy groups and members of the public (neither eyeballs or time are in abundant supply!). Moreover (and again, I am not a lawyer!) in my reading a check-sum or something like it is required to actually comply with Canadian copyright law. The law,

authorizes anyone, unless otherwise specified, to copy federal legislation, statutes, regulations, court decisions and tribunal decisions without the usual restrictions that govern Crown copyright materials, provided that one is careful to ensure the accuracy of the materials reproduced and that the reproduction is not represented as an official version. (emphasis added)

Given that I’ll be hosting documents, to ‘carefully ensure the accuracy of the materials reproduced’ aren’t I required to set up some automated system, given that the CRTC can potentially just change or remove documents without any public notification or transparency? Does this mean that compliance requires me to manually check on a daily/weekly/monthly basis that all the files on the CRTC’s webpage are exactly as they were when I first copied them?

Admittedly, these changes to documents in public notices are supposed to happen ‘fairly rarely’ and there isn’t any reason to expect that the filings for PN 2008-19 (which is what I’m interested in for this project, right now) are going to change. It’s possible that there was miscommunication as a result of interjecting an intermediary between myself and the CRTC’s lawyers. I’m very happy that I can host the filings for PN 2008-19 and that all of the items in that filing (including the CRTC decision) are apparently ‘public domain’ and thus outside of crown copyright. Those are all great things and I appreciate that the CRTC was fairly quick in getting back to me (it took about 4 business days). I’m far less impressed with secretive changes happening to public filings, and am disturbed by the position that scraping for check-sum purposes would somehow violate copyright.

I’m not a lawyer, and I’ll be following this up with the CRTC to try and get additional transparency into what’s going on. Hopefully there was just a miscommunication; I would understand if regular scraping was a problem because it could bog down their servers, and that on that basis they could drum up DDOS charge or something, but to construe server access to guarantee I’m hosting the most up-to-date documents with a copyright violation is mind boggling, and screams of misuse of copyright to this non-lawyer.

6 Comments

  1. It is interesting to contrast how the CRTC handles filings to how courts, or other agencies like the Copyright Board, handle filings (which are no less voluminous). Courts, and the Copyright Board, simply do not make them available electronically, although you can always show up in person and photocopy of twenty-some cents per page. Voila! Problem solved. It will be interesting to see how the Privacy Commission handles this sort of thing, if it ever gets to the point where it is consulting the public on as fundamental a basis as the CRTC does.

  2. About the Reproduction of Federal Law Order on which CanLII relies: it certainly doesn’t apply to filings to the CRTC. Whether or not a lawyer at the CRTC came up with an opinion that such filings are “in the public domain” is a separate matter.

  3. I think that the importance of digital and analogue telecommunications systems, and their provision of communication and content delivery, ought to require transparency if only to facilitate constitutional rights of speech and assembly. Of course, I’m certain that the constitution was *not* the motivating factor behind the CRTC making documents available online 😛

  4. It’ll be interesting to see what happens when Stoddart’s replacement is found; the office has been moving towards increased transparency, but we’ll see if that totally takes hold, or if some of this transparency goes away or remains where it is. Hopefully we’ll see the former (and I’d be moderately surprised to see the latter).

  5. I’m eager to see what this project will be. B-t-w, remember that compilation of ISP’s response you did (thx!), would you like me to translate the french responses (i’m guessing it’ll be related, given the PN link you submitted). I wouldn’t mind really.

  6. @Nick Adam

    It’d be great if you could assist on the Videotron filings, in particular. I’ll fire an email you way (using the address you used when leaving a message) to provide a rough overview of ‘what’s going on’ with the project. Once the web development bugs are worked out, things should accelerate incredibly rapidly to initial launch 😀

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