Restricted Access to Public Contracting Information?

Here’s yet another example of overreaching and copyright, this time by a private company but with government information.

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In Canada, the federal public service manages much of its contracting through a website called MERX. A software developer wants to analyze government contracting but is being told by MERX that they have exclusive agreements with the feds and most provinces, and the information cannot appear in any other service.

The copyright notices at the bottom of MERX pages for Federal contracts (e.g.) say that the posting is under Crown Copyright and that MERX is a licensee. I’ve checked a few provinces, and they all say “?? MERX – All rights reserved” (e.g.).

This is public information under Crown Copyright. When we’re talking about legislative information, or Ministry reports, there may be valid concerns about the accurate duplication of official material, but none of those concerns apply here. And yet, copyright is being used to restrict distribution of this material and, in the process, to essentially create a monopoly for government contracting, MERX, a service owned by private company Mediagrif Interactive Technologies Inc.

That’s not a monopoly on the information about the contracts and Requests for Proposals, however. Information itself is not subject to copyright; only its creative form is. The classic example of this is that photocopying a recipe from a cookbook is copyright infringement, but you can freely rephrase the instructions to make any recipe in any cookbook. Copyright law (in Canada, at least) simply does not apply to the information itself.

Applying that line of thought to MERX, the information about contracts in MERX may be able to be copied freely, being careful to avoid or paraphrase the information in the “description” parts of the postings.

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