Public Intelligence

A representative of the Canadian Department of National Defence (DND) has demanded the removal of a document on Canadian Land Force Counterinsurgency Operations that was first released by WikiLeaks in August 2009.  The document was published on this website in April 2010 after a copy of the report that was clearer and easier to read was found to be available online.  In May 2010, the manual was written about by Doug Saunders, a journalist working for the Globe and Mail who also reproduced the document in full.

The representative of Canada’s DND states that the document was not obtained by an Access to Information and Privacy (ATIP) Act request, Canada’s equivalent to the Freedom of Information Act, and that our reproduction of the document constitutes copyright infringement.  The idea of a government document being protected by copyright may be confusing to those from the United States, where all works created by government employees in the performance of their official duties are incapable of copyright protection under 17 USC § 105.  Because Canada is a member of the Commonwealth of Nations, the remnant of the British Empire, the government of Canada is technically led by the Queen of the United Kingdom and all works of its employees are thus subject to the Crown Copyright.  Under the legal provisions of Crown Copyright, the Queen of the United Kingdom owns all works of the Canadian government as articulated in Section 12 of the Copyright Act:

The Counterinsurgency Operations manual actually notes this distinction stating that the document’s copyright is for “Her Majesty the Queen in Right of Canada, as represented by the Minister of National Defence.”  However, materials protected by Crown Copyright are not entitled to the same level of protection as regular copyrighted works. According to the Government of Canada Publications website, “Permission to reproduce Government of Canada works, in part or in whole, and by any means, for personal or public non-commercial purposes or for cost-recovery purposes, is not required.”  Personal and public non-commercial purposes is defined as “distribution of the reproduced information either for your own purposes only, or for a distribution at large whereby no fees whatsoever will be charged.”  Therefore, as long as the material is reproduced in an unmodified form where credit is given to the author and no fees are charged, reproducing government information protected by Crown Copyright is not a violation of copyright law.

The representative of Canada’s DND that demanded the removal of the Counterinsurgency Operations manual actually misrepresents Canadian law by not only indicating that any redistribution of a government work is copyright infringement, but also by indicating that materials obtained via ATIP requests are unable to be lawfully shared with others.  The representative states that “any material that might be released under an Access to Information Act would limited [sic] to the purpose for which access was requested and not for the subsequent widespread distribution to the public in contravention of the Copyright Act.”  The problem with this statement is that such widespread distribution is only in contravention of the Copyright Act if the recipient has failed to obtain permission from the government and is charging a fee for the reproduction, such as in a book or film.  Moreover, government documents obtained via ATIP requests are routinely reproduced in whole by newspapers and other places online.  In fact, a company called CHQ Software reproduces PDF copies of the very same counterinsurgency manual that we provide, only they charge $6.00 for it.

The provisions of Crown Copyright have been criticized by a number of prominent academics and advocates of open access to information, such as Michael Geist who has written that it is a “program that does more harm than good and that appears susceptible to political manipulation, any new copyright reform should eliminate crown copyright and adopt in its place a presumption that government materials belong to the public domain to be freely used without prior permission or compensation.”  Geist notes that the system for obtaining permission to commercially reproduce Canadian government works actually costs substantially more to taxpayers than it generates in revenue.

Subject: Request for Removal of Publication
From: <ALLAN.MILLARD@forces.gc.ca>
Date: 4/16/2012 7:43 AM
To: <legal@publicintelligence.net>

 

Dear Sir/Madam,

 

We believe that the copyright protected work of the Department of National Defence (DND) is being provided to the public through your website in a manner that constitutes copyright infringement. More specifically, the 249 page publication “Canadian Land Force Counter-Insurgency Operations Manual” is available for viewing and download at the following URL:
 
https://publicintelligence.net/canadian-land-force-counter-insurgency-operations-manual/

We note that this manual includes the following prominent warning on the cover:
 

WARNING
 
ALTHOUGH NOT CLASSIFIED, THIS PUBLICATION, OR ANY PART OF IT, MAY BE EXEMPT FROM DISCLOSURE TO THE PUBLIC UNDER THE ACCESS TO INFORMATION ACT. ALL ELEMENTS OF INFORMATION CONTAINED HEREIN MUST BE CLOSELY SCRUTINIZED TO ASCERTAIN WHETHER OR NOT THE PUBLICATION OR ANY PART OF IT MAY BE RELEASED.

This label dictates that the only manner in which part or all of this manual could have been released would be through an access to information request made by a member of the general public. We are not aware of any such requests. Further, any material that might be released under an Access to Information Act would limited to the purpose for which access was requested and not for the subsequent widespread distribution to the public in contravention of the Copyright Act.

We trust that the posting of this manual was inadvertent and would simply like to see it removed from your website

We look forward to hearing from you ate your earliest convenience.

Regards,

Allan Millard
P.Eng, LLB, Patent & Trade-mark Agent

Intellectual Property Advisor | Conseiller en propriété intellectuelle
Directorate Materiel Policy & Procedures DMPP 8 | Direction des politiques et procédures (matériel) DPPM 8
National Defence Headquarters – 101 Colonel By Dr. Ottawa, Ontario,  K1A 0K2, Canada
Quartier général de la Défense nationale – 101 promenade Colonel By Ottawa, Ontario, K1A 0K2, Canada
Bus/Affaire 613-996-7678
e-mail/ courriel allan.millard@forces.gc.ca
Government of Canada | Gouvernement du Canada

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