Teresa Scassa - Blog

Teresa Scassa

Teresa Scassa

Is it “legal” to post your fan fiction tribute to Star Trek online? Or to post a video of your children cavorting to a pop song? The recent amendments to Canada’s Copyright Act have, among other things, added an exception to the basic rules of infringement for user-generated content (UGC). According to this exception, user-generated content is some form of work (literary, artistic, dramatic or musical) that would be eligible for copyright protection in its own right, and that is built upon or integrates the copyright protected work of another. This would clearly seem to cover both of the examples given above. Recognizing that individuals now interact with digital works for all kinds of private and expressive purposes, the federal government has moved these activities from the realm of copyright infringement, and legitimized them – so long as the resultant UGC is non-commercial and has no substantial adverse effect (financial or otherwise) on the original.

The UGC exception is not the only new exception in the Act to normalize activities which, prior to the amendments, were considered infringing. For example, it used to be an infringement of copyright in Canada to record television shows to watch at a later time, and to make copies of legally acquired works so that they could be stored in electronic form, put on an MP3 player, or used for some other private purpose. These were activities in which Canadians routinely engaged, and sensibly, new exceptions now render them non-infringing. The UGC exception is also not the only new exception to carve out more room for expressive interactions with works. The fair dealing provision, which used to apply only to the fair use of works for the purposes of research, private study, criticism, comment or news reporting, now also permits the fair use of works for the purposes of education, parody or satire. The UGC exception thus fits within a framework of exceptions that normalize how people commonly interact with works and that encourage creative engagement with works – within certain limits.

During the debates on the amendments to the Copyright Act, the UGC exception was referred to as the “You Tube” exception, because it seemed that the paradigmatic act contemplated by this section was the home video posted on You Tube that incidentally incorporated a popular song. Yet the exception has potentially enormous breadth: there are so many ways in which existing copyright works can be incorporated into new works. The exception permits not just the making of these ‘mashups’, it permits the non-commercial dissemination of the new work. Translations and adaptations of existing works would appear to meet the definition of UGC. Compilations (mix tapes, anthologies, etc) would also seem to qualify. Those who create maps using the data sets of others and post them online may also find comfort in the UGC exception. Perhaps unwittingly, this exception appears to give great scope for the creation and distribution of works based upon the work of others. Of course, other than being non-commercial, the dissemination must not have no substantial adverse effect (financial or otherwise) on the work(s) incorporated into the UGC – it remains to be seen how much limiting effect these ‘weasel words’ will have.

[For a more detailed discussion of the UGC exception in Canada’s Copyright Act, I invite you to read my chapter on the subject in Michael Geist’s new collection of essays on copyright law, titled The Copyirght Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law. Published by the University of Ottawa Press, this book and all its chapters is also available free online under a Creative Commons licence.]

Privacy is big news these days, particularly when it comes to online activity. Internet users are increasingly being tracked by websites they visit, by advertisers on those sites, and by their mobile apps. Profiling practices are ubiquitous. Information and activities on social networking sites are mined by “big data” for purposes that are hardly transparent to users. It is in this context that the Standing Committee on Access to Information, Privacy and Ethics has just released its report on Privacy and Social Media in the Age of Big Data.

The report outlines many of the challenges and issues facing individuals and regulators in the social media context. There are significant issues around how consumer consent is obtained to the collection, use and disclosure of their personal information, the unlimited nature of information collected, the uses to which harvested information is put, and the length of time information is retained. Some testimony before the Committee specifically addressed the added challenges raised by the collection of the personal information of children. Issues of accountability, transparency and security are also considered in the report, and the Committee heard testimony regarding the practices of specific social media companies, and the measures being adopted by the Federal Trade Commission in the US.

Given the broad scope of the inquiry and the importance of the issues, the Committee’s recommendations are a letdown. The first three recommendations consist largely of statements urging the Privacy Commissioner of Canada to develop new guidelines to address privacy challenges with social media. The recommendations which follow encourage both government and social media companies to support education, to promote safe online activities and to support digital literacy. While guidelines and education clearly have a role to play, the recommendations do not go far enough, and in particular, they ignore the sorry state of Canada's private sector data protection law.

During the course of its inquiry, the committee heard plenty of evidence about the lack of movement on long overdue legislative reform to the Personal Information Protection and Electronic Documents Act (PIPEDA), and about how the proposed amendments to this law in Bill C-12, which has languished for some time now, may already be out of date. The Committee also heard evidence about the need for enhanced powers of enforcement for the federal Privacy Commissioner who managed to do her job admirably well with largely only the power to cajole and encourage compliance. That the recommendations of the Committee are entirely silent on the need to amend PIPEDA to add data breach notification requirements, the power to levy fines, order-making powers or other enforcement measures is simply stunning.

One can be grateful, at least, for the recommendations contained in the Supplemental Report of the New Democratic Party of Canada. The NDP members of the Committee clearly took away a different message from these hearings than did the other members. The NDP makes a number of recommendations for legislative amendments that would enhance the enforcement power of the Privacy Commissioner. These include recommendations for legislative change to require companies to notify the Privacy Commissioner in cases of serious breaches of data security, to enhance the enforcement powers of the Commissioner, and to implement “do not track” functions. Indeed, earlier this year, the NDP’s Charmaine Borg (who sits on the Standing Committee) introduced a private members bill (Bill C-475) that would amend PIPEDA so as to implement some of these recommendations around data breach notification and enforcement powers.

The soft approach to privacy protection has not proven adequate to deal with the pervasive, intensive and ubiquitous data collection practices which have become the norm in our digitized society. The almost daily accounts of data breaches and their negative impacts on individuals are evidence of the failure of gentle encouragement to achieve regulatory compliance with even the most basic privacy norms. It is past time to update and upgrade Canada’s data protection legislation. It is most disappointing to see a Standing Committee report that can study these issues and conclude only that gentle encouragement is still the path to follow.

If there is any need for further evidence that the official marks provision in s. 9(1)(n)(iii) of the Trade-marks Act is in dire need of reform, then it can be found in the advertisement by Canada Post in 2005 of official marks in the words POSTAL CODE and CODE POSTAL.

Official marks are a special species of trademark available only to “public authorities.” In theory, a public authority is an entity that is under the control of a federal or provincial government and that acts for the public benefit. While a regular business would have to choose a trademark that does not create confusion with existing registered trademarks, a public authority can pick pretty much any mark it chooses. Further, unlike other businesses, public authorities can choose marks that are generic or descriptive. The adoption of “POSTAL CODE” and “CODE POSTAL” is a case in point. These words are generic: there really are no other words to describe the thing to which they refer – the postal code.

Public authorities also enjoy substantial procedural advantages when it comes to official marks: there is no opposition proceeding for official marks, there is no examination, and there are no registration fees. Once a public authority asks the Registrar to advertise an official mark (and has demonstrated that the mark has been adopted and used) the mark is protected. No one else may adopt, use or register the same mark, or one closely resembling it. Once advertised, such marks live on until voluntarily withdrawn, or removed from the register as a result of costly legal proceedings. For an example of the dysfunction of official marks, consider the fact that both the province of Nova Scotia (no doubt a public authority) and the Bluenose II Preservation Trust Society (almost certainly not a public authority) currently have the identical official mark BLUENOSE on the trademark register.

Official marks have a long history of abuse. The Federal Court has been kept busy trying to establish some standards for official marks – these are entirely absent from the legislation. Thus the court has established a test to aid in determining who qualifies as a “public authority”, has determined that public authorities must be Canadian, and has also set a test to determine whether certain official marks have been adopted and used by the public authority seeking to monopolize them. While the court has done its best, the entire system is flawed and is desperately in need of review.

This brings us back to POSTAL CODE. Canada Post, a public authority, has claimed official mark status for the very words in French and English that describe that series of numbers and letters that form a part of each address for mail delivery purposes. There is no obvious need for Canada Post to monopolize this term. There is no obvious public interest in having it monopolized. Yet ongoing litigation between Canada Post and Canadian company Geolytica suggests that Canada Post may be attempting to use a monopoly in the term POSTAL CODE/CODE POSTAL to make it more difficult for others to compete with it in the area of postal code related products or services. Geolytica, which offers a free online postal code look-up directory and other for-fee services through its Geocoder website is being sued by Canada Post for copyright infringement, and – surprise, surprise – for infringement of its official marks.

The recent report of the House of Commons Standing Committee on Industry, Science and Technology on the Intellectual Property Regime in Canada recommends amendments to the Trade-marks Act to narrow the definition of public authorities to help prevent abuse of official marks “to avoid stifling innovation and distorting markets”. Yet it is important to keep in mind that the problem is not just with those who wrongly claim to be public authorities. Actual public authorities might also use official marks to stifle innovation and distort markets – arguably this is what is happening with the POSTAL CODE/CODE POSTAL mark. Perhaps the reform of the official marks provision needs to be even more profound. Abolishing the category of official marks is a policy option that would require public authorities to play by the same trademark rules as all other businesses. With this as the default position – and with, perhaps, some clear exceptions for the names of government agencies or departments – we might finally see an end to the abuse of official marks.

Years ago I visited what was then Czechoslovakia shortly after the collapse of communism in Eastern Europe. I remember commenting to a local on the difficulty of navigating the city with the available map. He laughed and remarked that the mapping policy of the government had been that if you were supposed to be somewhere, you knew how to get there. If you didn’t know how to get there, you weren’t supposed to be there. According to him, the official state maps implemented this policy. It was an interesting lesson in mapping as a method of social control.

Last week, a story in the Times of India announced that police in India had launched an investigation of Google for a mapathon it organized. The mapathon essentially invited Indians to contribute geographic information to the Google Earth platform with a view to creating richer and better maps of India. The company offered a variety of prizes and incentives to encourage participation.

The official Indian mapping agency, the Survey of India filed the complaint with the police, apparently alleging that the mapathon was both illegal and a threat to national security.

The case is an interesting one. It is certainly true that many states that are vulnerable to terrorism, seek to control public information about certain locations, facilities and installations as a security measure. Certainly, given recent events, no one would argue that the Indian government’s concerns about terrorism are exaggerated. At the same time, in our digital, interactive world, ordinary citizens walk around with powerful computing, recording and communication devices in their purses and pockets. All manner of easily accessible apps and tools exist to create vast repositories of multimedia information about just about anything. In this context, it seems rather futile to resist participatory mapping projects on security grounds. After all, if ordinary citizens can gather and share sensitive geographical data using their mobile phones, so can terrorists. A major company like Google may well be receptive to genuine security concerns over particular data added to their collaborative maps, and might be persuaded to modify, blur or generalize certain entries.

Perhaps the bigger concern in this context is not so much security, as it is the shifting of control over mapmaking from a national mapping organization to a multinational corporation with its headquarters in another country. For countries with a history of oppressive colonization, this may seem like a threatening development. The Survey of India describes its mission in nationalistic terms: “Survey of India bears a special responsibility to ensure that the country's domain is explored and mapped suitably, provide base maps for expeditious and integrated development and ensure that all resources contribute with their full measure to the progress, prosperity and security of our country now and for generations to come.” Maps have always been powerful political and social tools, and there is nothing neutral about how many states have chosen to represent geographic information. The loss of control over one’s national maps to an outside entity may well be experienced as a loss of sovereignty.

But of course, sovereignty, in this context also involves the imposition of one story over alternative narratives. Digital technologies and a globalized society open the doors to competing accounts of our physical, social and political spaces – and such accounts are increasingly difficult to control. This conflict between Google and the Survey of India is almost certainly about more than national security, and the outcome of any police investigation may do little to tell us who the winners or losers will ultimately be.

A recent Federal Court of Appeal decision may have significant implications for the licensing of government data by federal and provincial governments. Nautical Data International Inc v. C-Map USA Inc. is a decision that relates to a lawsuit brought by Nautical Data against the defendant C-Map after C-Map allegedly used data from Canadian Hydrographic Service charts and maps to create its digital charts. Nautical Data took the position that it had acquired the rights, through an exclusive licence, to the raw data that was used in the preparation of the charts, and that these rights were infringed by C-Maps activities. Of course, the two parties were competing in the production of digital navigation products.

Typically, government data licences, whether open or otherwise, assert that the government has rights in the data being licensed. Even the federal government’s recently proposed Open Data Licence covers information that is defined as “information protected by copyright or by database right...”. Leaving aside the imported and inappropriate reference to database rights that do not exist in Canada (see my earlier blog on this point), the government is clearly assuming that it has copyright in the data that is the subject of such licenses. Geobase’s Unrestricted Use Licence Agreement also boldly asserts that “Canada is the owner of or has rights in the data (the Data) addressed by the terms and conditions of this Agreement”. The claims, evident in these open licences, are repeated in more closed licences as well. The licence at issue in the Nautical Data case defined CHS data as “any data owned by Canada and maintained by CHS”.

This idea that data can be “owned” and that copyright law is the vehicle for this ownership is clearly evident in these and in many other licences in both the private and public sectors. This is the case, notwithstanding the fact that in copyright law, there can be no monopoly in facts or data. Copyright will only protect an original expression of facts or data. In a compilation of data, that expression will be manifest in an original selection or arrangement of the data. Even if there is an original selection or arrangement, the protection extends only to that selection or arrangement; it never extends to the underlying data.

While copyright academics have made this point before, it has largely fallen on deaf ears. That is why the comments by the Federal Court of Appeal on this point are so interesting. While the decision is not on the merits of the case (the litigation was about whether summary judgment should be rendered on the issues; the court ruled was that it should not – that the matter should proceed to trial) Justices Nadon and Sharlow state quite plainly that “there can be no copyright in information.”(at para 11). Moreover, they express a certain surprise at the wording of the licence. They state:

Section 6.1 is intended to be a formal acknowledgement of Crown copyright, but it refers to copyright in the CHS Data. Either the parties were unaware that copyright could not subsist in information (which we would not presume), or they understood the phrase “CHS Data” by necessary implication to mean or at least include the CHS Works, even though the definition of “CHS Data” in the licence seems to limit its meaning to “data”. (at para 13)

This is perhaps one of the politest ways possible to criticize the drafting of the licence. Justices Nadon and Sharlow go on to note that the allegation in the licence that the Crown “owns” the data is similarly troublesome. They state: “If it is intended to mean that data can be owned in the same way as property can be owned, then there is some question as to whether it is correct as a matter of law. . . . there is no principle of property law that would preclude anyone from making use of information displayed in a publicly available paper nautical chart, even if the information originated with the Crown or is maintained by the Crown.” (at para 14)

These statements are both interesting and important, and direct attention towards the rather thorny issues around the protection of data in Canada. Data producers, whether in the public or private sectors, have asserted claims to copyright in their data that are far stronger than the law apparently supports. They can do this largely because to challenge such a claim would require engaging in costly and time-consuming litigation which is beyond the reach of ordinary citizens and many businesses as well. It is perhaps the law’s version of Stephen Colbert’s ‘wikiality’ – let’s call it legiality: if you can get enough people to say that certain rights exist, then perhaps for all intents and purposes they do.

Although the copyright issues are not fully litigated in this installment of the Nautical Data saga, the statements by Justices Nadon and Sharlow are a jurisprudential shot across the bows (if you will forgive the nautical reference) of those who claim excessive rights to data in copyright licenses. Whether it is the Nautical Data case that will eventually provide the clarification of the law on these issues or other cases that may be working their way through the system, it really is time for our courts to reinforce the Federal Court of Appeal's clear message regarding over-claiming data licences: there simply is no copyright in facts.

Thursday, 14 March 2013 14:33

The Failure of Privacy Law

Recently, the decision of the Ontario Court of Appeal in Jones v. Tsige was celebrated by privacy advocates for recognizing a new privacy tort in Ontario. The plaintiff/appellant Jones received an award of $10,000 in damages for harm suffered as a result of the defendant’s unauthorized access to her bank records over a period of time.

An even more recent dispute between Jones and her lawyer has highlighted a chronic problem with privacy law in Canada: the lack of meaningful recourse. Last week, a judge ordered Jones to pay her lawyer the balance of the legal fees she incurred in her ground-breaking lawsuit. These fees were in excess of $125,000 – more than 12 times Jones’ damage award. The judge made it clear that the lawyer had provided first rate representation for his client. The lesson here is that legal services are expensive, and frankly, the majority of Canadians cannot afford to go to court.

The new tort that resulted from Jones v. Tsige is similar to statutory torts in provinces such as British Columbia, Manitoba, Saskatchewan and Newfoundland and Labrador. They are fairly narrowly framed; these torts require a wilful violation of privacy. They are meant to apply in cases of stalking, voyeurism, and other deliberate privacy intrusions. The high cost of litigation combined with the fact that courts give relatively small damage awards for the difficult-to-quantify harms that flow from privacy invasion mean that these torts are of little practical use to most Canadians.

Arguably, the most pervasive threats to personal privacy come from routine over- collection of personal information, and poor information handling practices. The tort of invasion of privacy does not apply in such cases. Instead, private sector data protection legislation is meant to provide recourse to individuals when their personal information is inappropriately collected, used or disclosed by private sector organizations. Yet the Personal Information Protection and Electronic Documents Act (PIPEDA) has its own substantial defects. This law applies to activities in the federally regulated private sector, and to the private sector more broadly in those provinces without their own legislation (all provinces and territories except B.C., Alberta, and Quebec fall under PIPEDA),. Individuals may make complaints under PIPEDA; the outcome of any such complaint is a report by the Office of the Privacy Commissioner (OPC). This report may contain recommendations as to how an organization should correct deficiencies in its practices, but these recommendations are not binding. Once a report has been issued, an individual may choose to take the matter to Federal Court to get an order requiring the organization to change its practices. The individual may also seek compensation for any harm they have suffered. Once again, it costs money to go to court, and those few individuals who have exercised this option have had little success. Nammo v. Transunion of Canada Inc. has become the benchmark for awards of damages in such cases; Mr. Nammo was awarded a whopping $5000 after a credit reporting agency failed to collect accurate information about him, and shared the incorrect (and negative) credit information with a bank. It is no surprise that the majority (if not all) of those who have pursued their PIPEDA claims before the Federal Court have represented themselves. The cost of legal representation would far outstrip any likely award of damages.

The OPC does excellent work within the limits of its mandate, and it has no doubt had some success in improving how (receptive) businesses handle personal information. There is, however, little in the legislation to seriously motivate compliance. PIPEDA is a relatively toothless statute: the Privacy Commissioner has no order-making power, there is no mandatory breach disclosure provision, and there is little in the way of economic consequences for those who flout privacy principles. Yet PIPEDA has passed its first five-year review without much-needed legislative amendment (the Conservative government’s Bill C-12 died on the order paper and has yet to be revived), and it is now well overdue for its second five-year review. It is into this context that Charmaine Borg of the NDP has introduced a private member’s Bill C-475, which would impose a mandatory data breach disclosure requirement on organizations, would provide the Privacy Commissioner with order-making powers, and would create the potential for significant financial penalties for those who refuse to comply with orders.

Measures of this kind could provide a real incentive for organizations to take data protection more seriously. And let’s face it, for the vast majority of Canadians, it is not the right to go to court to sue for invasion of privacy or to seek damages for violations of PIPEDA that will make any kind of difference. These rights are rendered meaningless by both the cost of litigation and by the resultant lack of deterrent effect on bad behaviour. The best protection for individuals is a regime that gives organizations clear reasons to improve their practices and systems.

The legendary Bluenose schooner has become a Nova Scotian – if not a national – icon. It has been featured on our dime since 1937. While the ship is invoked in stories and songs (the original Bluenose sank in 1946), it also lives on in a physical replica, the Bluenose II, which tours Nova Scotia and abroad, and which is a popular attraction. The ship took its name from the term “bluenose” which has been used as a nickname for Nova Scotians since at least the 1700s.

 

Being an icon is not an easy thing – even for a ship. In fact, the Bluenose has been the subject of a number of intellectual property skirmishes in recent years, and is set to be the focus of yet another round of litigation. The first round of intellectual property battles took place in the early 2000’s, when the company retained by the Nova Scotia government to maintain and manage the Bluenose II (which belongs to the province) received official marks protection for the name Bluenose II and a number of related marks. It then sought to enforce its newfound trademark rights against a number of local businesses that used the word Bluenose in their name. An account of this litigation and its outcome can be found in an article I published in the Dalhousie Law Journal in 2004.

 

Now, in 2013, the heirs to the naval architect who designed the original Bluenose schooner have filed an application in the Nova Scotia Supreme Court, arguing that the Province of Nova Scotia and those it hired to restore the Bluenose II have violated the copyright in the naval architectural plans for the ship. It is also argued that the moral rights of the naval architect, the late William James Roué have also been violated. Because Mr. Roué passed away in 1970, the copyright in the plans would only expire in 2020.

 

To understand this argument, it is first necessary to know that the naval architectural plans would constitute drawings, which in turn are protected as artistic works under the Copyright Act. Case law establishes that the copyright in drawings can be infringed when someone builds a three-dimensional object from what is represented in the drawing. Thus the building of a house may infringe the copyright in a set of architectural plans, and the building of a ship, presumably, can also infringe the copyright in its naval architectural drawings. Although the province claims that the work done on the Bluenose II (which was by all accounts in a sad state) was a restoration of an existing, authorized reproduction. The heirs of William J. Roué, by contrast, argue that the existing ship was reverse-engineered; new drawings were done, and an infringing copy of the ship was built. This is the heart of the copyright claim, and it raises interesting issues about the boundary lines between restoration and replication.

 

Moral rights are intended to protect the honour and integrity of the creator of a work and to ensure that he or she is recognized as the author of the work. The heirs appear to argue that the work done on the Bluenose II amounted to the distortion or mutilation of the copyright protected work to the prejudice of the honour or reputation of William J. Roué. In part, it seems that the heirs are arguing that they should have been involved or consulted in the process in order to protect moral rights, arguing that the prejudice to honour or reputation flows from the fact that “the Applicants are unable to ensure that construction of the Vessel will be completed properly and that the vessel called “Bluenose II” will remain an authentic tribute to the original Bluenose and Bluenose II and the creator of the legacy.” (Second Amended Notice of Application, Schedule A, para 37.) The outcome of this claim may depend upon whether the project is considered a restoration or a reconstruction. The Copyright Act provides that “steps taken in good faith to restore or preserve a work” are not, of themselves, a distortion, mutilation or modification of the work (s. 28.2(3)(b)).

 

There is, of course, money involved in this dispute. The government did not seek permission to use the copyright protected drawings to produce a new replica of the Bluenose, nor did it pay royalties to the copyright holders – their position is that they are simply restoring the ship that they own. The heirs, by contrast argue that they have “suffered a lost opportunity. . . to financially benefit from exploitation of the Copyright Work”. (Second Amended Notice of Application, Schedule A, para 44).

 

For its part, the Government of Nova Scotia has challenged the existence of copyright in the naval architectural plans, and whether such copyright actually passed to the applicant heirs. They are also arguing that the “restoration” of the Bluenose II “is not a substantial reproduction of the Bluenose; it is an independent design” (para 17 of the decision on the motion). Finally, the government seems to be arguing that any copyright in the naval architectural drawings does not include rights in the name “Bluenose”. Presumably this means that they assert the right to give this name to any ship they build.

 

It will be interesting to see how this litigation unfolds. The conflict here perhaps reflects what happens when someone’s intellectual property underlies what has become a public icon, and when the owner of a physical and functional object – like a ship – feels that they should not be constrained by intellectual property laws in their dealings with that object.

Roberta Bell of the Orillia Packet and Times has reported on an art exhibit that was pulled by a local art gallery after concerns were raised about possible copyright infringement. The situation highlights competing public policy concerns.

The artist in question, K.D. Neely, had digitally enhanced a series of photographs she had taken of graffiti from the Raval district in Barcelona. This is not the first time such an issue has arisen in Canada. Similar copyright concerns led to the closing of another exhibit of photographs of graffiti at a Toronto Gallery in 2008.

There is no question that graffiti may constitute an “artistic work” within the meaning of the Copyright Act. It is an interesting and open question whether copyright can be enforced in illegal works, but not all graffiti is illegal. Many such works are commissioned by building owners or municipalities, for example.

The owner of copyright in a graffiti artwork, like any other copyright owner, has a series of rights under the Act which include the right to reproduce or authorize the reproduction of their work. Taking a photograph of all or a substantial part of a graffiti artwork is a reproduction under copyright law. Further, an artist has certain moral rights in relation to their work. These would include the right to be associated with their work by name or pseudonym, or to remain anonymous. The moral right of integrity protects the artist against any distortion, modification, or mutilation of their work to the prejudice of their honour or reputation. In the case of a painting, the prejudice is deemed to have occurred as a result of any mutilation or modification. A photograph that presents only part of a graffiti work, or that adds elements to it might therefore violate the artist’s right of integrity.

Of course, a photographer whose photographs do more than simply reproduce the work of another would also have copyright in their own works. A photographer who makes choices as to what parts of a graffiti work to include in her photo, or how to include other aspects of the urban landscape, for example, is creating a new, copyright protected work. However, it is well established that an artist (or a writer, or musician) cannot incorporate the copyright protected works of others into their own works unless they have permission to do so, or unless they can rely upon a fair dealing defence. The fact that a new work is created is not, on its own, a defence to copyright infringement. Musicians who engage in sampling and appropriation artists have railed against these restrictions on how they create their own works, but copyright law has remained, by and large, unyielding in the face of these arguments. One of the public policy issues raised by this case, therefore, is whether the law gives appropriate latitude to creators to draw upon the works of others in the creation of their own works. When does a new work sufficiently transform the work on which it is based so as to be free from the need to seek permission to use the earlier work?

In Canada, the fair dealing defence to copyright infringement is available only where works are used for certain purposes. These are: research or private study, criticism or comment, news reporting, parody or satire, and education. In addition to being used for one of the specified purposes, any dealing with the work must be fair. The amount of the work used, and the impact of the dealing on the original are both factors that are taken into account in assessing fair dealing. Fair dealing is thus a very context-specific defence, and in many cases it will be frankly rather difficult to know whether a person’s dealing with a work was fair without engaging in costly litigation. There is no general exception to infringement based on arguments that a new work has been created.

Section 32.2 of the Copyright Act sets out a series of “permitted acts” in relation to copyright protected works. In paragraph 32.2(2)(b), the law provides that it is not copyright infringement to “reproduce, in a painting, drawing, engraving, photograph or cinematographic work” either an architectural work or a sculpture that is permanently situated in a public place or building. The provision clearly aims to establish a balance between the rights of copyright holders and the rights of individuals to occupy and relate to the public spaces around them. In other words, if your art work is in a public place, you have to accept that it will be treated as part of the landscape in photographs and other artworks. This is the case whether photos are taken by tourists, artists, or by photographers who sell their works for postcards or calendars.

What the drafters of s. 32.2(2)(b) omitted to address, however, was the issue of paintings that are situated in public spaces. Indeed, graffiti is very much a part of public landscapes. However, it would seem that unlike sculptures in parks or city squares, it cannot be photographed with impunity. This clearly seems to be a gap in the law. Why should graffiti artists be put in a better position than architects or sculptors when it comes to their rights in relation to their works? Why should anyone be inhibited in the taking of photographs of urban streetscapes that contain graffiti?

One answer to these questions might be that graffiti artists are in a different position than architects and sculptors, who are often paid handsomely for their contributions to public space. Although some works of graffiti are commissioned, many are not, and graffiti artists might well object to the capture of their works in photographs that are sold in galleries or reproduced for sale in other contexts without their permission and without compensation. The position is certainly understandable, yet it is also important to keep our public spaces as public as possible. Layering our streetscapes with private rights is almost certainly not in the broader public interest. Yet barring a change in the law or a surprising court interpretation of fair dealing in the context of photos of graffiti, this would seem to be our current situation.

 

Friday, 08 February 2013 13:27

More on Privacy and Public Gun Permit Data

Recently I have blogged about the controversial interactive map created by the New York Journal News which showed the names and addresses of gun permit holders in two New York counties. I then followed this up with another posting about how the data on the map was substantially inaccurate. Both the map and its aftermath raise interesting issues about public data, open government and privacy rights.

This week, a New York court has given us more to think about on the issue of public government information and privacy. The New York Times sought access to an electronic copy of a database of the names and addresses of all residents of New York City who hold handgun licences. In Matter of New York Times Co. v. City of New York Police Dept., the appellate division of the New York State Supreme Court denied disclosure of the database notwithstanding that the information it contains is a matter of public record. The court stated: “The fact that Penal Law §400.00(5) makes the name and address of a handgun license holder “a public record” is not dispositive of whether respondent can assert the privacy and safety exemptions to FOIL [Freedom of Information Law] disclosure.” The court went further, noting that this was so “especially when petitioners seek the names and addresses in electronic form.” It also indicated that other case law supported the view that the disclosure of a person’s home address “implicates a heightened privacy concern.”

This decision is an interesting one in that it tackles head on the thorny problem of what to do with public record information that includes the personal information (names and addresses) of individuals. When made available in electronic form, this information can be used to create all manner of information maps (among other things) that might generate far greater privacy concerns than the original government record. The infamous gun permit map is an example of this. Consider also the Proposition 8 map – a map that plotted the names, addresses and donation amounts of all contributors to a campaign to ban gay marriage in California.

Open government and open data principles favour the disclosure of government information in digital “re-usable” formats to serve a variety of public purposes which include promoting transparency and accountability. While access to information legislation generally permits a government department or agency to refuse disclosure of third party personal information in response to an access request, this limitation does not apply to information that is already part of a public record. In Canada, the Personal Information Protection and Electronic Documents Act (which governs the private sector use of personal information) creates exemptions to rules around the collection, use and disclosure of “publicly available information”. According to the regulations, this category of information expressly includes “personal information that appears in a registry collected under a statutory authority and to which a right of public access is authorized by law”. While it is true that the exemption is limited to instances “where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the registry”, given that the information appears in the registry for purposes of transparency and accountability, republishing the information would likely fit within those purposes. In any event, newspapers are largely exempt from the application of this law where personal information is collected, used or disclosed for journalistic purposes. The result is a significant gap in Canadian privacy law when it comes to public registry data.

The Office of the Privacy Commissioner of Canada is already aware of the problems that open government and open courts principles may raise when it comes to the electronic dissemination of “public record” information. For example, the Commissioner has issued guidelines to administrative tribunals to assist them in their decision-making around the online publication of decisions that might contain detailed personal information. Clearly the OPC is of the view that open online access can change the privacy equation.

Balancing the interests of open government and privacy is a significant challenge – and not an easy one. I doubt we have heard the last on this issue.

 

Friday, 01 February 2013 13:21

Update on Gun Permit Holder Information Map

In a recent blog post I wrote about the issues raised by the mapping of public information. The issue that prompted this blog post was the creation, by the Journal News of New York State, of a map featuring the names and addresses of all gun permit holders in two counties. The map prompted outrage although it merely represented data made available to the newspaper on an access to information request.

A recent development in the story highlights another issue both with open data and with the mapping of public information. The Journal News reports that a substantial amount of the posted information was inaccurate. Apparently this was attributable to the fact that one of the two counties at issue did not require permit renewals, and thus contained a significant amount of outdated information. In fact, the data for this county was only about 25% accurate. The other county required renewals every five years, which made the data more current, though not entirely up-to-date.

The open data movement promises significant social and economic benefits. Making government data freely available in appropriate formats for reuse is meant to increase government transparency and accountability, and to provide individuals and the private sector with raw data for research or innovation. Many already use such information to create useful apps, or to develop information maps that place government data in an interactive and accessible geographic context.

One of the challenges, however, is ensuring that the data sets provided by government are accurate, complete and fit for the purpose to which they are put. Not only must governments ensure that they are providing current data and appropriate updates, they must also include the meta data necessary for users to understand the scope and limitations of the data set.

Where the data includes personal information (including home addresses) it would seem that the onus should be even higher on governments to ensure that the information being provided is current, or that the limitations of the data set are clearly identified. Of course, there is also an onus on the party using the information to ensure that they understand the limits of the data set.

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