by Seva Batkin
Much has been said about copyright reform in Canada, DMCA, and related topics. Much has also been said about the bland statements of the Hon. Jim Prentice in regards to all the wonderful Hollywood-sponsored goodies that the new Act will bring, and the chilling reality that will likely result from it.
However, this post is not about the new copyright act directly, nor is it about consumer rights or even election promises. Rather it is about the drastic impact that a single word (or the absence thereof) can make, and the difference between what is said and what is written. Or, in other words, it is example how apparently commendable goals are implemented in dysfunctional ways.
Last week, the Vancouver Sun reported on the effect that 2003 amendments to the B.C. Freedom of Information and Protection of Privacy Act have had on medical research in this province. While the Vancouver Sun’s accuracy is typically comparable to that of Fox News, Ms. Fayerman did appear to get the basic facts right in her article: the effect of the changes was to make it impossible for medical researchers to obtain information to recruit participants in their medical studies. In fact, the relevant section of the Act says the following:
35 A public body may disclose personal information or may cause personal information in its custody or under its control to be disclosed for a research purpose, including statistical research, only if
(a.1) the information is disclosed on condition that it not be used for the purpose of contacting a person to participate in the research,
The article also commented how no one really knows why these changes came about in 2003 and or why the warnings about the effect of this provision were ignored. I cannot comment about the warnings, as I have not seen or read them, but I can comment a bit on the rationale on the possible intended vs. actual effect.
When the amendments were introduced in B.C. Legislature in 2003, Hon. S. Santori, Minister of Management Services (whatever that means), explained the rationale for the amendments as follows:
It will clarify the requirements for the use of research agreements under the act, clarify the requirements regarding notification for the indirect collection of personal information, add a public body to the definition of a local government body and refine the definition of an educational body, and ensure the protection of solicitor-client privilege for records provided to the information and privacy commissioner.
On the second reading of the amendment bill, the specific change was described as follows:
Fourth, the bill clarifies that researchers cannot use personal information from a public body for the sole purpose of contacting prospective research subjects. This change will increase privacy protection for individuals in an area where the information is often very sensitive and will have limited impact on researchers.
The two comments, taken together, seem make sense. The amendments were there to clarify research agreement such that data could not be collected just to contact prospective research subjects. Presumably this was to prevent fishing expeditions, although there is no suggestion that this has ever been a problem. What you see above was the extent of what could be characterized as the “legislative intent” behind the amendment.
Now, let’s go back to the actual provision. Notice something missing? Oh yes, it’s the word “sole”, so conspicuously absent in describing what the researches can and cannot do:
(a.1) the information is disclosed on condition that it not be used for the purpose of contacting a person to participate in the research,
No matter what the Minister said, it is now impossible to get information if even one of the purposes to which it will be put will be to contact research subjects.
Was this done on purpose? I highly doubt it, I can’t imagine that some evil special interest group(s) wanted to reduce B.C. medical researchers to hiring the plentiful Vancouver homeless to stand on street corners with signs advertising “Do you suffer from constipation, arthritis, or discombobulation? Contact UBC Medical Faculty. Trained Medical Researchers are Standing By” (although perhaps it was a job-creation project by DERA ?). More than likely it was a case of ignorance, indifference, incompetence, or all of the above, whether at the Ministerial or drafting (i.e. AG) level.
However, no matter why this was done, it can now only be fixed by another legislative amendment and thus far we’ve lost 4 years of research opportunities. As a loosely translated Russian proverb says, “what’s written with a pen, can’t be cut out with an axe”.
So, back to copyright reform, let’s get it right the first time and don’t let it out into the wild until every word and punctuation mark has been scrubbed clean.
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