Does MERX have a monopoly on federal and provincial tenders?

[dmix]

I am a software developer and I'd like to do some analysis on fed/prov
tenders + awards but I noticed many of the governments have a special
relationship with MERX.

I spoke with a representative from MERX about this and she said:

"Tenders issued by the Federal/Provincial governments are not
considered public domain. They are for public consumption but cannot
be republished/posted etc in any form.

Some of the information is available on various government websites,
but we do have exclusive access to many of the governments. The
government BC for example has their own site BC bids. Most of the
other governments have exclusive contracts with MERX that prohibits
the reproduction of information to other sources."

Does this mean I am not legally allowed to store public tenders in a
database for analysis and print the results (for ex average award
amount for x type of job) on a website? Also, does that mean MERX is
the only private company who can use this data for commercial
purposes?

I have found very little legal copy about it.

[dmix]

Also, from the discussion with MERX:

"Unfortunately as it states on our website, no information on our
website may be reproduced in any form or fashion. The governments have
mandated that this is the case (and we are under contract to them).
They are not willing to budge on this matter and have taken legal
action against those who do not comply."

I dont see why the government would do this other then to allow MERX
to exclusively profit from it in return for setting up the online
infrastructure. It seems to have been around since around 1999 (domain
whois).

-Dan

[Andy Kaplan-Myrth]

Hi Dan,

Thanks for writing to us about this. I have a special interest in the
copyright side of things so I'm looking into this.

I see that federal contracts on the site have a copyright notice in
the footer that says that it can't be reproduced without permission
from the federal public service. That's just a restatement of Crown
Copyright, which is generally a barrier to reproducing public
information in Canada. MERX is a licensee of that information, but
it's strange that they should play any role in enforcing the copyright.

Interestingly (and I've admittedly only had a very quick survey), it
looks like the provincial contract pages say that MERX owns their
copyright. That is surprising and odd.

Another important point, and I'm thinking off the top of my head here:
information itself is not subject to copyright; only its creative form
is. The classic example is that it is copyright infringement to
photocopy a recipe from a cookbook, but you can freely rephrase the
*instructions* to make any recipe in any cookbook. The information
itself is not subject to copyright.

Applying that logic to MERX, the information about all of the
contracts in MERX can be copied freely. Just be careful to avoid or
paraphrase the information in the "description" parts of the postings.

-Andy

--
Andy Kaplan-Myrth, M.A., LL.B.
------------------------------------------------
email: an...@kaplan-myrth.ca
web: http://kaplan-myrth.ca
blog: http://blog.kaplan-myrth.ca
voice: 613-366-1738
------------------------------------------------

[David Eaves]

Very interesting thread.

One question, who owns the relationship with MERX. When they say "the
government" won't let them does anyone know who they are referring to at the
Federal and/or provincial levels? Is it Public Works (the obvious choice
federally)?

- Dave Eaves

[dmix]

Thanks for your response Andy, I plan on looking more into data vs
creative form.

I don't plan on presenting anything similar to the tenders on my own
site, just the post-processed information (such as average numbers).

But MERX seems to be quite hostile (more so in later email responses)
when I asked them to clarify their TOS. For example: "you are
expressly forbidden to repost or republish any of the data found on
MERX". Somewhat of a harsh tone when asked a simple question. I'd
imagine they are very protective of their relationship with the
"government".

I might have to stick to public databases or work with the governments
directly somehow.

-Dan

> email: a...@kaplan-myrth.ca

[dmix]

David Eaves:

"I just want to make it quite clear MERX is under contract to the
Federal Government as well as many of the provincial governments
whereby we have exclusive access to publish all of their information."

[David Eaves]

Might be worth asking them with which departments they have contracts...
that way we could approach this question from the government side - ask them
what they believe the intent of the contract is...

The relationship will be with someone more specific than the "federal
government." There will be some agency or a ministry with whom they have the
relationship. I'll see if I can start sniffing around with some friends at
public works and see who might own this type of contract.

dave

[evan]

I know Heritage uses them. Any contract more than $20,000 has to be put to
public tender, through MERX. There must be some exceptions...

evan light
www.theotherthing.org

[dmix]

The plot thickens, I checked Mediagrif's annual financial report and
it had some interesting information about the nature of their contract
with the government (currently on until May 2010 with option for
extension up to 2014):

"- the Company’s MERX network
generates most of its revenues from its contractual arrangements
with the Government of Canada, the Government of Ontario, the
Government of Manitoba and certain other provinces whereby
MERX acts as the service provider for their e-publishing system.
In March 2009, the Government of Canada informed the Company
that it was exercising the first of four one-year extension periods
to its contract with MERX, thus extending it to May 2010."

"-The loss of these contracts
could have a material adverse effect on the results of the Company’s
MERX and Global Wine & Spirits networks. The Company has
undertaken and will continue to undertake other business
development initiatives, such as international expansion, private
e-publishing and information services, in order to expand its
revenues beyond these contracts, but there is no guarantee that
any such initiative will be successful or could offset the impact of
the loss of certain contracts"
Page 15 - 2009 Annual Report (Risk Analysis)

Could be an opportunity to open up the data in the coming years.

[Jennifer Bell]

I just want to back up what Andy said re: information (facts &
collection of facts) not being copyrightable in Canada with this 2005
paper from a CIPPIC legal clinic with respect to the copyright of
scraped data. It's an interesting gray area in Canadian law.

http://visiblegovernment-discuss.googlegroups.com/web/LT%20Schreiber%20re%20Data%20Appropriation%20-%20Final%20-%20April%205,%2005.pdf?gsc=-Pdy9RYAAACtB4sHAj5zJKc_y010Bq88JSOjPK1WffO4K4u9A8p5SA

The paper was written for someone who had scraped the mapping of
postal codes to electoral district ids, which ordinarily costs over a
thousand dollars. They gave me permission to re-publish the paper.

It's since been pointed out to me that this gray area exists only
because no one has yet set a precedent with a legal case.

Jennifer

On Aug 24, 4:23 pm, Andy Kaplan-Myrth <a...@kaplan-myrth.ca> wrote:

> email: a...@kaplan-myrth.ca

[spencer]

i've pitched this as a story to http://www.cbc.ca/bc/features/gopublic/

this is arguably the biggest, (or at least the most insulting)
obstacle to open government in canada.

[Jennifer Bell]

It's a good idea to try to get media attention on the lack of
information on contract tendering in Canada. I've been considering
writing a blog post (or a press release?) around the fact that
usaspending.gov, which gives nice charts on the tendering process,
cost $600K [1]. The last year of salary of Ontario's unfortunate head
of E-Health, who fell from grace primarily via a contract tendering
scandal, was $380K, with a severance pay of $317K. [2] -- which
expense gave citizens better value?

It's meaner comparison than I'd like, but it's zingy.

The auditor's report on the E-Health issues [3] is an interesting
read, by the way. The auditor complains of having been denied access
to E-Health's files, and generally comes across as being a powerless
bystander. The idea that even the auditor doesn't have automatic
access to key information is troubling.

Jennifer

[1] http://www.washingtonpost.com/wp-dyn/content/article/2007/12/12/AR2007121202701.html
[2] http://www.thestar.com/news/ontario/article/646979
[3] http://www.cbc.ca/canada/toronto/story/2009/10/07/ehealth-auditor.html

On Oct 2, 3:39 pm, spencer <spencerkell...@gmail.com> wrote:
> i've pitched this as a story tohttp://www.cbc.ca/bc/features/gopublic/