AER claiming public hearng is its intellectual property
By Alex McCuaig
Piikani member Last Otter testifies at the Alberta Energy Regulator’s public hearing on the Grassy Mountain coal mine. (Screenshot courtesy of the AER).
The Alberta Energy Regulator is claiming the presentations at a public hearing by dozens of Albertans showing support and opposition to a coal mine project constitutes its intellectual property.
The claim comes by way of a complaint by the AER to Facebook and has resulted in the social media provider removing the content broadcast by Community TV of the public hearings - at least temporarily.
Under Facebook’s terms of service regarding intellectual property, a breach occurs when an organization claims copyright or trademark over material broadcast by a third party.
The broadcast in question featured the voices of Albertans heard over two days in Pincher Creek who either opposed or supported the development of the Grassy Mountain coal mine.
Community TV continues to broadcast the hearings on its YouTube page.
(UPDATE: The broadcast on Community TV’s YouTube page has since been removed due to AER’s claim of copyright over the public hearings)
In its response to Facebook, Community TV states the AER is a public body which cannot claim copyright or trademark over a public hearing which it broadcast live.
Community TV also claims testimony from Indigenous participants can’t be fully appreciated strictly through the transcript which AER may or may not also claim a copyright or trademark on. Several Indigenous participants spoke in the Blackfoot language which its standardized written form is less than 50 years old and a transcript may not be accessible for those who solely practice its oral form.
Community TV is also submitting that AER officials may have breached record retention regulations under the Freedom of Information and Protection of Privacy Act as a spokesperson stated the regulator, “made a statement at the opening that the material is not an official record and that we delete it after the hearing closes.”
In its response to AER’s claims of copyright and trademark over the voices of Albertans, Community TV concludes that, “the AER’s attempts to restrict public access to information are not only legally indefensible but also morally unjustifiable. As a public body, the AER has a duty to uphold transparency and accountability, not suppress it. Community TV will not waver in its commitment to public service journalism, and we will pursue every legal avenue to ensure that public hearings remain accessible to all.”
Community TV’s full response to Facebook:
To Whom It May Concern,
I am writing on behalf of Community TV, a respected and independent news organization dedicated to amplifying public discourse, ensuring transparency, and representing underrepresented voices. Recent actions by the Alberta Energy Regulator (AER) to report our coverage of the public hearing in Pincher Creek as a copyright infringement are both baseless and deeply concerning. This letter aims to address the AER’s claims, highlight their lack of legal standing, and assert the fundamental rights of press freedom and public access to information.
1. The Public Nature of AER Hearings
The AER explicitly states on its website that its hearings are “formal court-like processes” designed to gather information on energy projects in a transparent manner. Section 25(1) of the AER Rules of Practice confirms that oral and electronic hearings are open to the public. The broadcast of these hearings on the AER’s website supports this claim, making the proceedings accessible to all.
Given this, the notion that Community TV’s retransmission of this public event infringes on intellectual property is absurd. The webcast, created using public funds, exists to serve the public interest. Denying the press the ability to further disseminate these records directly undermines the principle of accessibility and transparency that underpins the AER’s own mission.
2. Misguided Privacy Concerns
The AER has claimed that their measures to restrict video distribution are intended to protect the privacy of individuals involved in hearings. This claim is unfounded for several reasons:
Public Accessibility: By broadcasting hearings on an open-access website, the AER has already consented to the public sharing of these proceedings. Any individual who appears in these broadcasts does so with the understanding that their participation is publicly viewable.
Lack of Privacy Expectation: Participants in public hearings inherently forgo certain privacy expectations. Canadian law recognizes that there is no reasonable expectation of privacy in public spaces, especially in public proceedings.
Engagement and Trust: Contrary to the AER’s assertions, restricting the dissemination of public hearing footage discourages public engagement and erodes trust in the transparency of regulatory processes.
3. Copyright Claims by a Public Body
The AER, as a publicly funded regulatory body, is subject to the Freedom of Information and Protection of Privacy Act (FOIP). Section 64 of FOIP explicitly mandates the responsible creation, handling, preservation, and accessibility of public records. The AER’s claim of copyright over these materials contradicts its status as a public body and undermines FOIP’s transparency objectives.
Further, Section 92 of FOIP establishes penalties for the destruction or concealment of public records. Graham White’s admission that AER deletes webcast materials after hearings suggests a violation of this provision, raising concerns about the long-term preservation of records crucial to public and historical accountability.
4. Indigenous Representation and Cultural Sensitivity
Indigenous participants at AER hearings often convey critical cultural and emotional expressions that transcripts alone cannot capture. By failing to maintain video records, the AER disregards the need for a comprehensive and accurate historical record of these hearings, which disproportionately disadvantages Indigenous communities.
5. The Role of Community TV
Community TV serves as a vital bridge between public proceedings and broader community awareness. By retransmitting AER’s public hearings, we fulfill the same function the AER claims to prioritize—ensuring accessibility for those unable to attend in person. The AER’s actions to suppress this coverage are antithetical to their stated goals and reflect poorly on their commitment to transparency.
Our Demands
We demand the following actions:
Immediate Withdrawal of Copyright Claims: The AER must retract its baseless claims against Community TV and acknowledge our right to share publicly accessible content.
Commitment to Record Preservation: The AER must commit to archiving and making available all webcast materials, in compliance with FOIP and the public interest.
Public Apology: The AER must issue an apology for undermining press freedom and threatening an independent news organization for fulfilling its journalistic duty.
Conclusion
The AER’s attempts to restrict public access to information are not only legally indefensible but also morally unjustifiable. As a public body, the AER has a duty to uphold transparency and accountability, not suppress it. Community TV will not waver in its commitment to public service journalism, and we will pursue every legal avenue to ensure that public hearings remain accessible to all.
To Facebook: Your platform plays a crucial role in enabling the free flow of information. We urge you to reinstate the removed content immediately and review the validity of copyright claims more critically in the future.
To the Public: This is a fight for more than just one video. It’s a fight for transparency, accountability, and the right to know. Join us in demanding that public institutions remain open to public scrutiny.