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'''Question'''
'''What should institutions do with third-party material (such as newspaper articles or non-government reports) for the purposes of proactive publication?'''
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It is the policy and practice of the Crown to respect the private interests of copyright owners as feasible. Consequently, it is recommended, as a best practice, to avoid online publication of third-party copyright works to the extent possible, either by not including such material in the briefing package, or making use of the exceptions from disclosure as applicable.
Under sections 80 and 90 of the ''Access to Information Act'', Ministers and heads of government institutions are not required to proactively publish any information that would not be released in response to an access to information request under Part 1 of the ''Access to Information Act''. This would include applying the paragraph 68(a) exclusions for published material or material available for purchase by the public, where appropriate.
If an institution does not proactively publish the third-party copyright works that are included in a briefing package based on the section 68 exclusion, the titles and publishers could be provided in the spirit of ensuring transparency when the remaining package is proactively published.
The Canadian Style provides instructions on how to document sources of information that were not prepared by an institution.
However, officials are encouraged to consider – at the time of preparing the briefing material – alternatives to using the work itself or limiting use, such as by conveying only the necessary information in a new or original form. This is particularly so in the case of works that are neither published nor available for purchase, or would otherwise not be subject to an exclusion under ATIA.
If an institution decides to proactively publish the third-party copyright works that were in a package of briefing materials, section 32.1 of the ''Copyright Act'' may apply. Section 32.1 of the ''Copyright Act'' expressly provides that it “is not an infringement of copyright for any person to disclose, pursuant to the ''Access to Information Act'', a record within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like material.”
If third party materials (such as newspaper articles or non-government reports) are proactively published, they should be in compliance with the [[/open.canada.ca/en/open-government-licence-canada|Open Government Licence]].
===== RELEVANT PROVISIONS – ''ACCESS TO INFORMATION ACT'' =====
<blockquote>Act does not apply to certain materials
68 This Act does not apply to
(a) published material or material available for purchase by the public
Publication not required
80(1) A minister is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 74 to 78 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, a head of a government institution could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part.
Publication not required
90(1) A head of a government institution is not required to cause to be published any of the information, any part of the information, any of the materials or any part of the materials referred to in any of sections 82 to 88 if that information, that part of the information, those materials or that part of those materials were set out in a record and, in dealing with a request for access to that record, he or she could under Part 1 refuse to disclose that record, in whole or in part, for a reason that is set out in that Part.</blockquote>
===== RELEVANT PROVISIONS – ''COPYRIGHT ACT'' =====
<blockquote>No infringement
32.1(1) It is not an infringement of copyright for any person
(a) to disclose, pursuant to the [[/laws-lois.justice.gc.ca/eng/acts/A-1|''Access to Information Act'']], a record within the meaning of that Act, or to disclose, pursuant to any like Act of the legislature of a province, like material;</blockquote></div>
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