Development of an Information Highway -- as distinct from an
Electronic Highway -- depends upon a number of issues relating to public
access and public infrastructure. This article addresses three of these,
namely 1) pricing of government information in electronic format, 2) use
of the Information Highway by government, and 3) use of the Information
Highway by the public in relation to government matters.
Le développement d'une autoroute de l'information -- distincte
d'une autoroute électronique -- relève d'un nombre de
questions se rapportant à la consultation par le public et
à l'infrastructure publique. Cet article expose trois de ceux-ci,
à savoir 1) l'etablissement des prix en ce qui a trait à
l'information gouvernementale sous format électronique, 2)
l'utilisation de l'autoroute de l'information par le gouvernement, et 3)
l'utilisation de l'autoroute de l'information par le public en relation
avec les questions gouvernementales.
The terms "Electronic Highway" and "Information
Highway" are often used interchangeably. But, there is a very
important difference between them. The term "Electronic
Highway" emphasizes the hardware and software -- the wires and
switches -- that enable communications. The term "Information
Highway", on the other hand, emphasizes the communications itself.
Obviously, we can't have the one without the other. But, let's
be very clear about the difference between them. The "Electronic
Highway" is built by engineers. The "Information Highway"
is built by communicators.
The distinction between the Electronic Highway and the Information
Highway is particularly important when one thinks about public access and
public infrastructure. Public access to the Electronic Highway
refers to wires and fibre optic cables, to issues such as phone company
wires versus cable company wires. Public infrastructure, in relation to
the Electronic Highway, refers to who owns the wires and the
switches, who pays who for the use of what.
It is no coincidence that the recently approved accord in British Columbia
is called the "Electronic Highway Accord" --
not the Information Highway Accord.3 The origin
of the Accord is in issues regarding wires and switches. A key
example is the agreement to accelerate the replacement of party telephone
lines with single party lines. The government describes the Accord
as the product of two years of discussions. But it was only in
the last few months of that time, when community groups were allowed
to participate, that the discussion came to the community's use
of these new telecommunications facilities.
Issues regarding the Electronic Highway are very important,
but they are not my focus here. Instead, I will focus on the
Information Highway, in terms of public access and public
infrastructure. In particular, I see three key issues at this
point:
The issue here arises from the difference between treating government
information as a public service and treating it as a corporate
asset. Computerization greatly facilitates the commoditization
of information. Once information is in electronic form it is
relatively easy (i.e. cheap) to package it and to distribute it.
Also, it is easier to make it useful (i.e. valuable) to a much
wider array of potential users (i.e. customers) than the users
for whom the information was originally created.
This trend is exacerbated by the recent tendency of almost all
Western governments to explore cost-recovery and entrepreneurial
activity in an effort to reduce unsustainable deficits and debt
loads. A common chain of thought in government circles goes something
like this: "We're short of money, our information is a valuable
asset, in computerized form it's especially easy to sell, people
are asking for computerized information so we'll have lots of
customers, we're computerizing our information anyway, for our
internal purposes, therefore, let's sell our computerized
information in order to get more money."
There are some major problems with that logic.
First, as a practical matter, governments typically overestimate
the actual profit that can be made by selling their information.
They underestimate the cost of doing business, by not
counting their overhead and information collection costs. And
they overestimate the government's net revenue by including
sales to other government bodies. (For one government body to
charge another government body for information may be useful for
accounting and budgeting purposes, but it certainly does not address
the government's overall shortage of money.)
Second, in many cases, government agencies are monopoly
suppliers of the information they are selling or are considering
selling. For example, anyone can do a market survey and sell
the results, but only the government owns the results of the official
census. Statutes, regulations and policies are similar in this
respect. Using short-term thinking, people in government often
assume they can simply set prices in order to maximize profits,
like any rational, monopoly seller. What they forget is that
this is exactly why utilities commissions were established to
regulate traditional government-sanctioned monopolies such
as B.C. Hydro. No corporate body, whether private or government,
can expect to exercise a government-sanctioned monopoly without
eventually its prices coming under the supervision of a government-sanctioned
body. In the information selling area, this will become more
and more obvious to the extent that government agencies impose
unreasonably high prices for information for which they are a
monopoly supplier.
A third problem with government sales of computerized information
has to do with how prices are set. Total revenue is the
product of the price and the number of units sold. The same amount
of revenue can be generated by a high price and a small number
of units sold as by a low price and a large number of units sold.
For a variety of reasons, governments have tended to adopt the
high-price, low-volume approach. In particular, this approach
is convenient because there is no need to market the product beyond
a small circle of easily-identified, must-purchase customers such
as other government agencies and large corporations. What makes
this a problem is that (a) from a practical viewpoint, there is
little potential for expansion of sales, and (b) from a public
policy point of view, it shuts out all potential non-commercial
users of the information, and all but a few medium or small commercial
users of the information.
For example, the British Columbia government charges $600 per file for
digital maps that cover less area than the paper topographical maps that
sell for under $10. Granted, the digital maps contain a lot more
information than a paper map, but it's obvious that at that price
customers will be limited to logging and mining companies and
government agencies. Meanwhile, what about environmental groups,
members of the public, academics, students, local governments,
etc.? They don't get the information, so we lose a wonderful
opportunity for promoting rational land use planning, education,
software development and so on, and meanwhile the government doesn't
gain a dime in revenue from these potential users of the information.
In short, what's needed is some form of fee waiver for public
interest, non-commercial use of the information.
This is precisely the issue in an inquiry now being conducted by the
British Columbia Commission of Information and Privacy. The Western
Canada Wilderness Committee requested free or reduced-fee copies of some
of these digital maps in order to help it plan its wilderness protection
activities. The government refused, and said the Freedom of
Information Act4 does not apply, because the
information is available for sale. The Committee complained to the
Commissioner, and the government challenged the Commissioner's
jurisdiction even to look into the matter. Commissioner David Flaherty
received written arguments, including interventions by the British
Columbia Civil Liberties Association and the British Columbia Freedom on
Information and Privacy Association in support of the Commissioner having
jurisdiction. In the result, the Commissioner rejected the government's
position. He concluded that although the Act does allow a
government department to refuse to disclose information that is available
to the public for sale, the Commissioner still has jurisdiction to inquire
into whether the government's use of that exemption is reasonable. The
Inquiry itself is now (January 3, 1996) completed, and the Commissioner's
decision is expected shortly.5
This raises the fourth problem with the sale of computerized government
information, which is the fundamental public policy question of
whether the distribution of government information should be treated
as a source of revenue or as a public service.
I have already mentioned how this policy issue is being raised now
under the British Columbia Freedom of Information and Protection of
Privacy Act. It is also worth looking at how the British Columbia
Electronic Highway Accord deals with the issue. The
Accord reaffirms that "An informed public is essential
to democracy." In relation to the pricing of government information
on the electronic highway, the Accord states,
"Government information must be disseminated for free to public
access points, where it is in the public interest to do so."
Presumably, it is the responsibility of the newly formed office of the
Chief Information Officer to spearhead implementation of this commitment.
The Final Report of the federal Information Highway Advisory
Council stresses a business-oriented approach to the information
highway.6 However, the Council does stress that the
government
should act as a "model user." It states that the government
should "lead by example by...ensuring that government works
are broadly and routinely distributed." The Council also
specifically addresses public access to information such as statutes.
It states,
Then, regarding Crown copyright, the report recommends that:
It adds,
In my view this represents a very important endorsement of what
is becoming, with fits and starts, quite a progressive trend in
governments' use of the Internet to make information freely available
to the public.
For example, regarding statutes and regulations, federal
statutes are now available in full text on the Internet. The
promise is that federal regulations will soon follow.9
Regrettably, most British Columbia statutes are not available
on the Internet, with some exceptions. The Ministry of Environment has
posted some environmental statutes on its WWW site.10
And West Coast Environmental Law has posted unofficial copies of dozens
of environmentally related statutes on its WWW site.11
Also, the Commission on Resources and Environment has released a free
CD-ROM containing CORE documents plus the full text of relevant statutes.
British Columbia regulations are not available on the Internet.
Interestingly,
however, consolidated versions of key environmental regulations
are accessible on the Internet only to government employees who
have the password! It is the Queen's Printer's exercise of Crown
copyright that is behind this antediluvian -- and, I trust, temporary
-- state of affairs. To its credit, the Queen's Printer does
have a WWW with free access to bills introduced into the legislature
and related information.12
As I've already made clear, I believe that governments' use of
the Internet is a critically important element of developing strong
public participation in the Information Highway. There are
lots of positive steps:
The Information Highway is well on its way to becoming a very
real community -- not just the "virtual community" as
it was once described. Some examples:
Public access and public infrastructure regarding the Information
Highway is really a matter of building a community. It is the
content of the communications and the social relationships among
the communicators that are important.
William J. Andrews, "Nurturing the Global Information Commons: Public
Access, Public Infrastructure,"
Government Information in Canada/Information
gouvernementale au Canada, Vol. 2, no. 3.1 (winter, 1996).
<URL:http://www.usask.ca/library/gic/v2n3/andrews.html>
From a presentation to the 4th Annual British Columbia Information
Policy Conference, Vancouver, British Columbia, October 28, 1995.
[3] Available at:
<URL:http://www.itao.gov.bc.ca/accord.htm>
[4] "Freedom of Information and Protection of Privacy Act",
S.B.C. 1992, c. 61.
[5] Since this article was submitted for publication,
a decision has been published:
British Columbia. Office of the Information and Privacy Commissioner.
Order No. 91-1996, March 11, 1996, Inquiry RE: A Decision by the
Ministry of Environment, Lands and Parks to Withhold Digital Map Data from
the Western Canada Wilderness Committee (WCWC).
Available at:
http://latte.cafe.net/gvc/foi/orders/Order91.html
[6] National Information Highway Advisory Council.
Connection Community Content: The Challenge of the Information
Highway: Final Report of the Information Highway Advisory Council.
Ottawa: Minister of Supply and Services, 1995.
Also available:
http://info.ic.gc.ca/info-highway/final.report/eng/
[7] op. cit., p. 116 (paper version)
[8] op. cit., p. 117 (paper version)
[9] For statutes, see:
http://canada.justice.gc.ca/Loireg/index_en.html
(See under Consolidated Statutes)
[10] Available at:
[11] Available at:
http://freenet.vancouver.bc.ca/local/wcel/
[12] Available at:
[13] Available at:
[14] For more information, see:
[15] Available at:
http://www.web.apc.org/cepa911/
[16] See, for example:
http://www.igc.apc.org/nacla/mexico.html
[17] See, for example:
http://www2.helix.net/~bearwtch/sov/gusmain.html
Electronic Highway v. Information Highway
Three Key Issues
Pricing of Government Information
Some argue that on the Information Highway certain works should
be made widely available, particularly such public information
as laws, regulations and statistics. However, given the importance
of safeguarding the integrity of such works, users should not
be able to modify them. Thus, the public interest lies in both
the free availability of such works and in their remaining intact
with their sources clearly identified. The issue of access to
public information is more appropriately addressed in the context
of Crown copyright.7
The Crown in Right of Canada should, as a rule, place federal
government information and data in the public domain...
Where Crown copyright is asserted for generating revenue,
licensing should be based on the principles of nonexclusivity and the
recovery of no more than the marginal costs incurred in the reproduction
of the information or data.8
Government's Use of the Information Highway
Use of the Internet in Relation to Government
Conclusion
Notes
[1] May be cited as/On peut citer comme suit:
William J. Andrews
Barrister & Solicitor
Executive Director
West Coast Environmental Law Research
Vancouver, British Columbia
bandrews@wcel.org