access to information Ambush Marketing big data citizen science confidential information copyright data protection digital cartography ecommerce and internet law Electronic Commerce Extraterritoriality fair dealing freedom of expression Geospatial geospatial data intellectual property Internet internet law IP open courts open data open government personal information pipeda Privacy takings trademark law trademarks traditional knowledge transparency
Geospatial Data/Digital Cartography
Friday, 11 January 2013 07:54 Written by Teresa Scassa
A New York newspaper created a furore by publishing, in the wake of the tragic school shooting in Newtown, Connecticut, an interactive online map that displayed the names and addresses of residents holding permits for guns. The newspaper obtained the data through an access to information request. The map was accompanied by an article with the title: “The gun owner next door: What you don't know about the weapons in your neighborhood." The map and article provoked outrage. Gun owners were concerned about their privacy, and one news agency ran an interview with a retired burglar who suggested that the map would make burglars’ work much easier. A blogger responded to the map by creating another map which featured the names and addresses of the staff of the newspaper. The newspaper has reportedly had to hire armed guards to protect its main office.
This is, of course, not the first time that controversial information maps have been created by news agencies or by others. In California, for example, information about election donors is a matter of public record. Someone used this information to publish a map detailing the names, addresses and contribution amounts of individuals who had donated to a campaign to amend the State’s constitution to prohibit gay marriage.
While there is no doubt that information maps can be useful and important, there are also potential risks. There is a great deal of publicly available information collected by different levels of government. For example, many registers of public documents, and decisions of administrative tribunals are already accessible to the public. The Privacy Commissioner of Canada has expressed concerns about the consequences of placing this sort of information online; in the past, public access was available only to those who took the trouble to show up at specific sites to view the entries in the register. This implicitly limited access to this information. While some of this public information might be very usefully presented to the public in map form (see, for example, the maps of crime reports in Ottawa) other information may have serious privacy or security consequences if disclosed online and in map form.
Privacy and data protection laws in Canada do not offer a great deal of protection in this regard. While governments are bound by privacy legislation that protects against the disclosure of personal information in the context of access to information requests, a great deal of other government information is part of public registers. Individuals who disclose information on maps for personal, non-commercial purposes may be exempt from the application of national or provincial private sector data protection laws, and these laws also create exceptions for information that is collected, used or disclosed for “artistic, literary or journalistic purposes”. (I recently published a law journal article on this issue.)Thus, for example, a news outlet in Canada that did something comparable to the New York-based newspaper described above might well be insulated from recourse under data protection laws because of their “journalistic purposes” in doing so.
There is, of course, a tricky balance to be struck. Personal privacy and individual security are important values, but so are those served by open government (transparency, accountability) and by the freedom of expression. Indeed, the Supreme Court of Canada is expected to rule sometime in the coming year on the constitutionality of the exception for journalistic purposes in Alberta’s private sector data protection legislation. That decision may give us some guidance on the tricky balance between freedom of expression and the protection of privacy. In the meantime governments must continue to examine how best to achieve the goals of openness while at the same time protecting individual privacy and security.
Note: this piece was first published by me at:http://www.bloggingforequality.ca/2013/01/information-maps-freedom-of-expression.html
Who owns copyright in documents created by private individuals for public purposes? This issue has been raised in at least two recent motions for certification of class action law suits for copyright infringement in the Ontario Superior Court.
The first of these, Waldman v. Thomson Reuters Corporation, resulted in the certification of a class action in February 2012. The plaintiff represents lawyers in private practice who object to the incorporation of court documents authored by lawyers into the defendant’s commercial databases without consent or compensation. The documents at issue include pleadings, notices of motions, affidavits and factums. All of these documents must be filed in court, and become part of a public record during the course of litigation. These court documents are already available to the public through different channels – for example, the public can obtain copies of documents in court records by visiting a court office and by paying the prescribed fees. Some documents are also now made available online by courts. The plaintiff in the class action suit in Waldman objected to the inclusion of these same documents in a commercial, for-profit service.
More recently, the Ontario Supreme Court has refused to certify a class action lawsuit brought by a land surveyor who objected to the inclusion of land survey documents in Ontario’s online land registry system Teranet. Copies of documents in Teranet are available to the public for a fee. The plaintiff in Keatley Surveying Ltd. v. Teranet Inc. argued that the survey documents were works in which copyright subsisted and their inclusion in the database without licence or compensation was a violation of those copyrights.
Both cases raise interesting issues regarding privately authored documents that are drafted as part of public processes, and that must necessarily be accessible to the public as a matter of public policy. Indeed, David Vaver has argued, in an article about the specific issue of copyright in legal documents, that in addition to the usual fair dealing exceptions in the Copyright Act, there may also be arguments around custom and public policy that permit copying without need for permission. Of course, this does not address the issue of whether a private company can commercialize access to the public documents without licence or compensation, and it will be interesting to see the outcome of the Waldman case.
The Keatley motion to certify was rejected by the court because it did not meet any of the criteria for certification of a class action. Among other things, the court was not convinced that there was an identifiable class of similarly affected individuals for the plaintiff to represent. This was because many prominent surveyors and land survey companies were involved in the design and creation of Teranet, and it was not clear whether any other surveyors in Ontario shared the plaintiff’s views on the copyright issues. Further, the court noted that membership in the proposed class would depend on the outcome of the litigation – the proposed class defined itsmembers as those who were holders of copyright in land survey documents, and one of the issues to be determined was whether land surveyors actually had copyright in their documents. If they did not, there could be no member of the class.
Nevertheless, there were some interesting issues raised in the lawsuit, and it is unfortunate that their consideration must be left to another day. For example, Teranet argued that if there is copyright in the land surveys, it lies with the provincial Crown. Crown copyright arises under s. 12 of the Copyright Act where a work is “prepared or published by or under the direction or control of Her Majesty or any government department”. Teranet argued that the provincial laws and regulations governing the creation and use of plans of survey amounted to direction or control over the creation of the works by the Crown. In the words of the court, “Legislation dictates the manner in which the survey is conducted, the content of the plan of survey, the form of the plan, and even details of the plan’s physical appearance, such as the type of paper used, the shape of the paper and the type of ink used.” (at para 102). If this type of direction or control can be said to give rise to Crown copyright, it might have interesting implications for a very broad range of other documents and data prepared under strict rules, standards or guidance – including, perhaps, some legal documents prepared for and submitted to courts.
Teranet also argued that Ontario’s Land Titles Act and the Registry Act both provide that deposited and registered plans are the “property of the Crown” and that this supports a finding of Crown copyright in the documents.. Of course, this same wording could easily be interpreted to refer to property rights in the physical document and not the underlying intangible intellectual property rights. Since copyright is a matter of federal jurisdiction and since s. 12 of the Copyright Act specifically addresses the circumstances in which Crown copyright arises, an interpretation of provincial legislation that creates a new basis for Crown copyright (the deposit and registration of documents) might take the legislation beyond the scope of provincial competence. Nevertheless, the court was of the view that “a compelling case can be made that copyright belongs to the Crown, based on s. 12 of the Copyright Act and the statutory regime that governs plans of survey”( at para 113), although it stopped short of actually drawing this conclusion. This is a complex and interesting question, and one with implications in many other contexts.
While Waldman will not answer these specific questions, it may provide some important insights on issues of fair dealing, custom and public policy (certainly, in the case of land surveys there has been a longstanding practice of providing copies to members of the public for a fee – even prior to the development of Teranet). These arguments, which provide a justification for the exercise by others of the exclusive rights of authors, seem far preferable to arguments that the state has expropriated these same rights through the creation of a registry system.
Monday, 22 October 2012 15:10 Written by Teresa Scassa
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.
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: