A session in progress at the CrowdLaw conference at the Rockefeller Foundation conference center in Bellagio, Italy

In this session on ‘Transparency and Participation’ at the Bellagio conference on Crowdlaw: People-Led Innovation in Urban Lawmaking (March 13–17, 2018), we discussed whether participation depended on more transparency and whether transparency could be counter-productive to more engagement. I had the pleasure of speaking and moderating a conversation with:

• Mukhelani Dimba, Open Government Partnership
• Julia Keutgen,Westminster Foundation for Democracy
• Hélène Landemore, Yale University
• Veronica Seguel, Chamber of Deputies Chile

Transparency is instrumental for participation and for accountability. But in order to delve into the linkages between transparency and participation with discernment, it is necessary to clarify the concept of ‘transparency’. Transparency is the immediate visibility for citizens of all policy related aspects. It is the contrary of opacity but is can be compatible with a certain closure. It is more demanding that publicity. It can help citizens to engage in policy, be instrumental to accountability and be educational and transformative for citizens. Transparency helps citizens to know and understand whether their government is protecting their rights and delivering on public services. It can range from total transparency to partial transparency. In some cases, partial transparency has been used by governments and parliaments to justify certain decisions. But when transparency is only partial, it cannot be expected to deliver good outcomes as citizens voice their opinion without having the full picture.

Transparency and participation should be regulated by law, including through Freedom of Information laws and the rules of procedure of parliament. In Brazil, for instance, the rules of procedure of parliament state the obligation for citizens to participate in committee hearings. That being said, there is not a single legal provision of transparency that could grant access to full access to information. Even when regulated by law, the utopian possibilities of transparency as a means to inclusiveness, universality and transformation, are simply not borne out in reality. For instance, today there is no evidence that Freedom of Information laws on their own have dramatically improved government transparency, responsiveness and accountability.

Transparency mostly operates in circumstances of high inequality. In these circumstances, having more transparency does not mean that there are better dialogues between government/parliaments and citizens. In this sense, transparency can lead to more inequality and elite capture because only those who have access to resources and the information are able to participate. Ultimately, participation rests on access to information. Where there are information asymmetries, only voices and interests of the resource rich are audible.

Transparency should be accompanied by civic education and procedural language of government and parliament should be translated meaningfully to citizen to enable meaningful their participation. Participation channels should be linked to citizen’s interest on a single issue rather than party politics. In Chile, for instance, the parliament has developed an online tool “Ley fácil” (easy law) to make the law understandable for ordinary citizens (https://www.bcn.cl/leyfacil).

Transparency is not always the most efficient way to improve a legitimate participatory process and can be very time consuming. Some scholars have even gone further and argued that it has a counterproductive effect on democracy. Even if relative transparency is achieved, there are questions regarding the quality of participation (who participates and how, with what degree of sincerity) and the quantity of participation (how many people participate). This is for instance the case in Chile, where public hearings organized by the parliament are mostly attended by men with a legal background and living in the capital and the voices of other stakeholders are not being heard.

Transparency makes compromises between representatives more difficult. When discussions are transparent and public, it can harden negotiating positions and make it difficult for elected officials to compromise. Citizens are mostly in favour or against a single issue, while legislation requires compromises and trade-offs between single issues. The more trade-offs are involved, the more trade-offs are required the more difficult it is to have full transparency of the negotiation that led to the compromise. Finally, too much transparency coupled with a lack of understanding of parliamentary/governmental processes, for instance disclosure of donations, can have a dampening effect on participation and lead to increased lack of trust in the institutions and its systems.

In the end, participants agreed that transparency is the ideal default principle, with instrumental value, but should be compatible with exceptions. It should not in itself represent a judgement of democracy.

Julia Keutgen is ‎a Technical Advisor at the Westminster Foundation for Democracy (WFD)

Cross-posted from Govlab.org

Photo by sniggitysnags

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Frankenstein reproduction right

With the original objective of “protecting equality, press and informed news”, the proposed “publishers right”, or “ancilliary copyright” could very well turn into an unbounded and unrestricted ‘frankenstein reproduction right’ that goes far beyond existing copyright’s “orginality requirements”. The proposed “reproduction right” is radically different from existing copyright law where the originality requirement prevents the appropriation of facts, ideas and non-original expression which are usually not considered to be protected by copyright. Many amendments on the table today before the Legal Affairs Committee aim at prohibiting the use of even the smallest bit or snippet of any text, image or sound from a press article, from public information or from an academic text without the prior permission of the publisher. The negative impact on access to information, access to knowledge and scientific scholarship could be devastating. We are facing a clear attack on our democratic rights as European citizens.

It should be noted that this new layer of copyright does not exist in the US nor in international copyright law.

“Closed science”, “Closed access” and “Closed data”

Many elements of articles 11 and 13 constitute a frontal attack on open science programmes as supported by the Commission, the Council and the European Parliament.

New filtering, policing, monitoring and payment obligations would significantly weaken access to valuable research content produced through public funding by creating extra costs, bureaucratical burdens and legal uncertainty for the academical community. These new legal obligations of intermediary liability would enter into direct conflict with the open science and open access policies that are being widely adopted in Europe and around the world. The aim of these policies is to increase access to research results in order to maximize the use and benefits of science across all sectors. To support open access and open science, universities, libraries and research organisations manage repositories in which researchers upload scientific articles, publications and research data so that everyone can benefit and use the results of research, including other researchers, industry and the public. A new filtering and payment obligations would significantly inhibit through legal uncertainty access to valuable research content produced through public funding, and greatly slow the progress of open science.

Crippling academic “open access” repositories

This new attempt at the enclosure of knowledge threatens the movement towards widespread availability of scientific results for the good of all, and the existence of over 1250 repositories that non-profit European institutions and academic communities use to disseminate academic output. It is important to note that, in the context of academic research, the creators of the content -the scientists- do not receive any financial compensation for their articles, yet publishers often demand that researchers sign over their copyright to the publishers.

Many universities maintain that a new intellectual property right for academic publishers would do “untold damage to the ability of researchers to share their findings and reference the world of scholarship in their published works” (LERU 2016).

Building walls around open data

Open data means that there are no legal restrictions to access to or use, modification and sharing of information for any purpose, subject at most to an obligation to attribute the source. ‘Open’ also means there are no technical restrictions to access and use, e.g. the data is offered in machine readable formats, and in open format rather than in a proprietary format. In contrast, Articles 11 and 13 directly and indirectly restrict the use of open data as well as difficulting open access which are flagship strategies of the EU and its Horizon 2020 research and innovation framework.

Restricting freedom of information

A key rationale that underpins freedom of expression is that the free flow of information is indispensable as it helps ensure that the best democratic decisions are taken. The right protects not just the imparting of ideas and information, but all phases of the communication process, from the gathering of information including a right to access sources, to the communication and reception of it. The legal implications of articles 11 and 13 could mean barriers to the access of citizens to news, public interest information and institutional data, all necessary for informed democratic debate. The public sector might very well automatically own a great deal of publishers intellectual property within its own publicly owned publications. To create exclusive rights in information for publishers will necessarily interfere with the freedom of expression of others. It should be noted that the European Charter of Fundamental Rights upholds a strict standard of scrutiny in the case of news and other public interest information.

In general the EU’s copyright reform has been hijacked by the publishing industry lobby and has been turned into copyright counter-reform that aims at further enclosing knowledge at the expense of our scientific, academic and cultural commons.

Photo by Mark Deckers

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