Almost identical records do not constitute new versions

Complaint: The Canada Revenue Agency (CRA) withheld Internal Technical Interpretations produced for a particular period. CRA cited subsection 68(a) in refusing to release the records, since it had licensed the Interpretations to publishers to sell, with some modifications.

Investigation: The OIC compared the original and published versions of the Interpretations, which showed that what was published was almost identical to the original. In some cases, the publishers had added footnotes for clarity and value to subscribers.

Outcome: The Information Commissioner agreed with CRA that the information at issue had been published and was available for purchase, which excluded it from the Act.

Information Commissioner’s position

  • Subsection 68(a) excludes from the Act published material or material available for purchase.
  • In this case, the requester had argued that the publishers’ changes were substantial enough to make the published versions a “new” or “derivative work” under copyright law.
  • If this had been so, subsection 68(a) would not have applied, since the original versions would have been neither published nor available for purchase.
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