305 Southcrest Private,
Ottawa, ON K1V 2B7
Phone: (613) 733-5836
Honourable Reg Alcock,
President of the Treasury Board
May 17, 2004
Thank you for your letter dated April 29, 2004 in reply to my letter from March 4, 20041. I appreciate the work the Treasury Board is doing as part of the Federated Architecture Program to accommodate a wide variety of business models for public sector acquisition, use, production and distribution of software2. I believe you are also well positioned to assist the Government of Canada on a number of other areas.
I am involved in GOSLING, which is an acronym for "Getting Open Source Logic INto Govenments"3. We chose this name to indicate that we are not only involved in getting Open Source software into government, but Open Source logic. Our work has three main areas:
Helping governments around the acquisition, creation, use and distribution of software to ensure that a full spectrum of methodologies, including Open Source, are accommodated.
Helping governments include an understanding of these methodologies in government regulation of the economy, especially around economic policy such as Patents, Copyrights, Trademarks4 (PCTs and other sui-generis forms of protection). This includes interactions between PCTs and policy such as competition5, government grant programs6, and economic measurements7.
Helping governments learn from the methodologies and experience around Open Source and apply it to non-software aspects of government operations.
Your letter focused on the first aspect of our work. I would like to elaborate on the other two with the hope that you may facilitate a connection with members of government who will move forward on all these areas.
Treasury Board and Public Works appear to be moving forward on ICT policy including supporting a full spectrum of methodologies and business models for government acquisition, creation, use and distribution of software. This work should extend to include advising on policy where government regulates the software industry. As an influential cabinet minister, you can use your knowledge of ICT to influence other cabinet ministers and Members of Parliament.
Joseph Potvin, co-coordinator of GOSLING, recently asked Bob Young8 what his advise to the government of Canada would be around open source. Mr. Young spoke about the expansion of "Intellectual Property" as being the greatest threat to open source. He used an analogy to vitamin D where too-little may be a problem, but too much will also kill you9. He specifically mentioned software patents as being bad for the software sector (not just open source), copyright term extensions, as well as other issues.
We need to relay this message to the Industry and Heritage ministers clearly so that they realize that "forcing more vitamin D" down the throats of Canadians can not possibly make us more healthy.
While promotion of open vendor-neutral standards10 is important, citizens and vendors should have the protected right to reverse engineer interfaces11 to author software which is compatible with non-standard interfaces. This common practice is what we rely on currently to exchange office productivity documents between software from different vendors12. I am authoring this letter in OpenOffice.org, and will be sending it to people who may use Microsoft Office, Corel WordPerfect and IBM Lotus Smartsuite which do not yet support the OASIS open office XML standard13.
Improper regulation of ICT could make open source impractical due to a legislated inability of Open Source to be interoperable with interface monopolies. In some cases existing interoperable Open Source software could be declared illegal for use in Canada.
Governments are being pressured to revoke this right to create compatible software. Information from the Heritage Committee14 and Heritage Minister indicate that they have not yet understood all the rights that need to be balanced in PCT policy.
In an open letter to Susan Crean titled "Happy World Intellectual Property Day"15 I wrote about how key parts of the WIPO treaties grant interface monopolies in copyright. I described this situation as being similar to granting exclusive rights to written languages, and requiring that authors and readers license the compatible language and dictionary before being able to read or write book. Much of what we take for granted in literary works under copyright may be revoked in digitally communicated works.
While I had wished to raise the level of debate in Canada, I have felt forced to respond to the extremist "theft is theft" language of the content industries and remind parliament that "Digital Rights Management is theft"16. There is a need to stop the current rush to ratify these treaties.
I was recently a witness17 for Industry, Science and Technology Committee18 of parliament during the discussion of Bill C-219. This bill claims to protect the satellite television signals of the Bell ExpressVu / Star Choice Communications Inc duopoly from so-called "theft".
This bill suggested that the black market (reception unauthorized by the copyright holders) and gray market (reception unauthorized by government as satellite company is not licensed to operate in Canada) for satellite receivers was a policy priority that required parliamentary intervention. The first step should be to encourage the satellite companies to deploy technological solutions such as advanced encryption. Adequate technological protection measures (TPMs) could wipe out the black market.
This bill also suggested that the incumbent duopoly and their agents should be the only Canadians authorized, through import permits created by Bill C-2, to attempt to create and deploy technologies to solve copyright infringement problems. The duopoly has economic and other disincentives to fixing the problem, meaning that this bill would have the opposite effect than the intended effect of reducing black market satellite reception.
These unintended consequences are very similar to those seen in the United States with their Digital Millennium Copyright Act (DMCA20). We as a country need to learn from those mistakes and not replicate them in Canada. We need to move parliaments away from thinking that granting interface monopolies, and creating the resulting monopolies on communications devices and communications channels, is a legitimate legislative solution to perceived problems.
I note that you are a member of parliament very interested in bringing additional transparency and accountability to government operations. I wish to offer one example of how the logic behind open source may help.
There is currently inadequate inter-departmental information sharing as well as inadequate information sharing from government to citizens. I have at times felt the need to send in an Access to Information request for information that should already be freely available, and have heard the same thing from public servants.
Open Source software is publicly distributed as widely as possible. It is not assumed that the people hired to manage the information are the only people who may be able to help develop this information. Development help can and will come from entirely unexpected sources.
If more government information was made available freely on-line, searchable with a Government of Canada search engine, this would allow policy makers (in all sectors, not just the public sector) to collaborate on making the best policy possible for Canada.
Ensure that the full spectrum of business models for software from "software manufacturing" to FLOSS are included in analysis of IT policy across the entire government. Software can be understood as the rules that govern IT hardware, and thus analysis of software needs to be part of the analysis of any IT policy.
Canada should properly balance PCT policy with competition policy, reversing the current effective carve-out of PCT's expressed in the Competition Bureau's Intellectual Property Enforcement Guidelines (IPEG21).
Canada should not ratify the WIPO copyright treaties in their current form. Canada should direct DFAIT to negotiate treaties that protect the right to reverse engineer computing interfaces. There should never be an inclusion of "Legal protection for Technological Protection Measures"22 or similar policy in any treaty or trade agreement that Canada signs or ratifies.
Citizens should have the right to own and control ICT devices to be used for lawful purposes. Even if some citizens abuse this control to use them for unlawful purposes, this should never be used as a justification to revoke property rights23 of ICT.
Canada should do adequate economic analysis of patent policy accomplished on a per-subject matter basis. Canada should look closely at information process patents, possibly deciding to exclude information processes from patentability entirely24 or to grant "fair dealings" exceptions for interface patents. This work should not be left to the Intellectual Property Policy Directorate (IPPD) or the Canadian Intellectual Property Office (CIPO) who have thus far followed other patent offices in expanding patent inflation without adequate analysis.
Canada should investigate Open Source Logic to see whether the methodologies which make Open Source software more agile, transparent and accountable can be applied to non-software aspects of government operations.
2I have used parts of your letter in letters to other politicians. One example is a letter I wrote to city councillors http://lists.canopener.ca/pipermail/discuss/2004-April/001475.html (Accessed May 14, 2004)
3Http://www.goslingcommunity.org/ (Accessed May 14, 2004) The term Open Source is being used as defined by the Open Source Initiative http://www.opensource.org/docs/definition.php (Accessed May 14, 2004)
4Often the phrase "Intellectual Property" is used. Those of us that support a full spectrum of approaches tend to not use that phrase. As an example there is an "IPR name Disclaimer" of the PCT working group of the World Summit on the Information Society http://www.wsis-pct.org/ipr-disclaimer.html (Accessed May 7, 2004)
5My submission to Competition Bureau includes a summary. http://www.flora.ca/competition2003/ (Accessed May 7, 2004). I met with the Competition Bureau on Wednesday May 5, 2004 to discuss some of the issues in that submission.
6An example would be The National Research Council's Industrial Research Assistance Program (NRC-IRAP) which currently includes patent applications and royalty payments as part of the promoted business model requirements for supported research http://irap-pari.nrc-cnrc.gc.ca/ (Accessed May 7, 2004)
7The Technology Achievement Index (TAI) of the United Nations Development Program is an example of an index that Canada uses to measure itself against other countries. The TAI is included in the UNDP FAQ at http://www.undp.org/hdr2001/faqs.html##8 (Accessed March 26, 2004). It uses patents (including the large number of invalid patents) and royalties as an inappropriate proxy for "creation of technology", and electricity consumption as an almost backward proxy for "diffusion of old innovations".
8Bob Young is the co-founder of RedHat http://www.redhat.com (Accessed May 14, 2004). He was the keynote speaker at a conference hosted by Knowledge, Media and Design Institute of the University of Toronto titled "OPEN SOURCE AND FREE SOFTWARE - CONCEPTS, CONTROVERSIES, AND SOLUTIONS" http://www.opensourcelive.net (Accessed May 14, 2004). I wrote an article contrasting his policy work to that of past Heritage Minister Sheila Copps http://www.flora.ca/russell/drafts/copps-ndp.html (Accessed May 14, 2004)
9I often use an analogy to water: too little and you dehydrate, too much and you drown.
10We need to be clear on the meaning of the word "standards". One reference is the WTO document "Agreement on Technical Barriers to Trade", specifically Annex 3: Code of good practice for the preparation, adoption and application of standards. Within the government this should be used to deter people from using phrases like "defacto standard" or "departmental standard" which are not standards at all.
11Interfaces could be between humans and a computer (user interface), between software and hardware, or between different software (Application Program Interfaces or APIs, communications protocols, or file formats). One of the first organizations to be formed to combat interface monopoly polices was the League for Programming Freedom http://lpf.ai.mit.edu/ (Accessed May 7, 2004)
12Microsoft Office files are non-standard, and the file format is not publicly documented by Microsoft. Vendors of other office suites use reverse engineering to be able to load these files and create the "save-as" feature of these office suites.
14The interim report on copyright reform from the Standing Committee on Canadian Heritage includes a list of recommendations, including immediate WIPO treaty ratification, most of which would be harmful to Canadian creativity if implemented http://www.parl.gc.ca/InfocomDoc/Documents/37/3/parlbus/commbus/house/reports/herirp01-e.htm (Accessed May 15, 2004)
17The text of introduction http://www.flora.ca/russell/drafts/INST20040429.html (Accessed May 7, 2004). Full discussion will be available with the Tuesday May 4 minutes from the committee.
18INST committee http://www.parl.gc.ca/InfoCom/CommitteeMain.asp?Language=E&CommitteeID=8794&Joint=0 (Accessed May 7, 2004)
19Bill C-2: An Act to amend the Radiocommunication Act http://www.parl.gc.ca/common/Bills_House_Government.asp?Language=E&Parl=37&Ses=3#C-2 (Accessed May 7, 2004)
22Legal protection for Technological Protection Measures is seen not as a protection of copyright, but a replacement of copyright where the rules over what a citizen can do with a work are no longer set by parliament but by software vendors and media companies.
23"Digital Rights Management" (DRM) are technologies that take the control of ICT away from the owner of the device. While they claim to manage the rights of copyright holders, they actually "manage" (take away) the rights of owners/users of ICT tools to use these tools for lawful purposes. In the "theft is theft" language used by some of the media monopolies, it can be said that "DRM is theft".