Monthly Archives: December 2007

DTCA, part I – The CanWest Legal Challenge

This is the first of what I’m sure will end up being several posts on Direct-to-Consumer Advertising of prescription drugs. It’s an issue I never thought too much about as it silently crept into our magazines and televisions in the US, but once living in Canada and working in health policy, my eyes were opened to what a weird and complex issue this truly is. As a librarian, I was trained in the protection of freedom of expression, and as an agent of public health I have the responsibility to prioritize the health and welfare of the population. It is fascinating for me to explore an issue where suddenly all the great health policy thinkers I respect are arguing *for* government regulation of expression and it’s the giant multinational multi-$$$ conglomerate-corporations who are crying out that their expressive freedom is being infringed upon.

Background on DTCA:

Direct-to-consumer advertising (DTCA) of prescription drugs is only considered to be legal in two countries: the US and NZ (and NZ came very close to banning it last year). Neither country voted in a law to legalize DTCA or had any public consultation or parliamentary debate leading to the legalization. In the US, notably, the FDA relaxed its guidance on drug advertising in 1997, following drug companies’ pushing the boundaries farther and farther with little to no enforcement of the then-existing rules. The pharmaceutical industry has aggressively lobbied to be permitted to advertise prescription drugs to consumers in other regions, as TV drug advertising has proven to have a stunning return-on-investment for them. In 2002, the EU parliament actually voted on legalizing DTCA – 498 against to 42 for legalization.

Canada currently allows only very restricted forms of DTCA– although the rules are rarely enforced and often rather blatantly flouted (e.g. an illegal drug ad on the wall in a hospital near my house last year!). As I have alluded to previously, illegal print ads in public places abound this year as well. Additionally, Canadians are to some extent “contaminated” (to speak epidemiologically) by drug ads which US television stations (illegally) broadcast across the border. The existing systematic review of Benefits and Harms of Direct to Consumer Advertising finds that DTCA works – which is to say it affects prescriptions, sells the product it advertises – but that there is no evidence of any health benefit to the practice.

In a free-market health care “system” such as the US, this may seem a neutral, or even positive, finding when considered as innovative capitalistic market success. However, in a country such as Canada, which has the premise of universal healthcare as a human right as an element of its national identity, needless costs on health care are seen as coming out of the taxpayer’s pocket and thus diverting resources from other potential government/health services. (This is not to imply that the US should not consider cost of pharmaceuticals, particularly in light of the new Medicare Plan D for seniors, but just to clarify why the practice of DTCA may be framed differently in the different political economies.)

The Legal Challenge:

CanWest MediaWorks Inc., a wholly-owned subsidiary of CanWest Global Communications Corp.,an international media company and the largest media owner in Canada), has applied to the Ontario Superior Court to strike down the current Canadian laws restricting DTCA. The basis for this application is the claim that the regulations violate Section 2(b) of the Canadian Charter of Rights and Freedoms.

For non-Canadians, the Charter is the bill of rights in our constitution. It was only formally enacted in 1982, so the legacy of case law is rather young, and lots of things are still being defined and duked out in court. (As someone who grew up in the US and recalls celebrating the bicentennial of that constitution in grade 5, this is fascinating to me!)

One of the interesting things about the Charter is the very first section, which is called the “Limiting Clause” and more or less says that all of the rights about to be laid out in all the sections that follow can be limited if the limitations can be justified in a “free and democratic society.” The next section after this limiting clause that makes all other clauses non-absolute is the one that includes “Fundamental Freedoms” such as freedom of expression (the aforementioned 2b), thought, press, peaceful assembly, etc. The interplay between these first two sections leads to all sorts of fascinating legal wrangling – an example of which that is near & (not so) dear to many librarians is the Butler obscenity case, which set precedent for limiting pornographic free expression.

Finally, it should be noted that way down in Section 26, the Charter states that there may be other rights and freedoms, and that the rights & freedoms spelled out in the Charter should not infringe on those other rights. Some legal scholars have argued that health care falls under these other rights, while others think health is actually covered under another section (7) that guarantees “life, liberty and security of person.” Suffice to say here that there are sections under which health care could be argued to fall, and thus could possibly justify limiting freedom of expression. It’s all pretty convoluted, eh? Because free expression is protected under the Charter, in Section 2, it takes a very strong concern to enact Section 1’s Limiting Clause and limit any forms of expression. Ads are a form of expression (at least on the part of the content creator), so the question here becomes:

Are the harms of DTCA strong enough to justify (in a free and democratic society) limiting free expression?

In order to truly answer this question, there are a few issues to tackle:

  1. What are the harms of DTCA?
  2. How dangerous to freedom and democracy does it seem to limit the “expression” of DTCA?
  3. Are there other rights & freedoms not specified in the charter (such as a right to health/health care) that could justify limiting Sec 2 in the case of DTCA?

Next installment: unpacking the Freedom of Expression argument here

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Holiday hiatus

Hope everyone has had a lovely time the past week or so whatever you do or do not celebrate this time of year.

While my co-bloggers have been visiting family I have been home sick but enjoying time with the kiddo nonetheless, the NIH Open Access mandate has finally been signed into law!

Expect regularly scheduled blog postings to resume soon.

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CLA making the news with Copyright Advocacy

The Canadian Library Association is in the news today – and in a positive light, no less! The CBC headline reads “Libraries urge Ottawa to consider consumers in drafting copyright law.”

While most of us in library-land are well aware of our tireless efforts to protect patron privacy, further intellectual freedom, push for access to government information, and generally needle for more open and just information related policies, the average North American probably never links libraries with copyright law unless she happens to notice a sign or disclaimer taped to a library photocopier somewhere.

This coverage makes libraries out to be championing the rights and needs of ordinary people, in the face of pressures and lobbying from big business – pretty much exactly how I see it myself.

CLA executive director Don Butcher has some great sound bytes in the article, calling for a “made-in Canada” solution, and frankly calling-out the current proposed copyright reform as “a battle between Hollywood lobbyists versus the average Canadian.”

Way to go CLA for getting the word out there, and into the mainstream media! I admit to having let my CLA membership lapse, as it seemed to have a low ROI compared with other memberships I pay for out of the same pot of money, but recent developments such as this and the work of the Information Commons Interest Group in particular have been mighty impressive. Might have to reconsider my dues paying allocations in 2008…wonder if there’s a good way to get my employer to pay for this one…

-Greyson

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Internet literacy, three ways

Over the last week or so, I’ve been following very different, but equally interesting, threads about internet and technology literacy. Each offers a different slice of a wide problem, and I think comparing the three together presents interesting contrasts.

The first take on internet literacy comes by way of a colleague of mine who teaches classes in information literacy at Pasadena City College. Teaching information and internet literacy is an ongoing challenge for school librarians at every grade level. My colleague provided an example that he uses in class to demonstrate why students should think beyond Google for access to information. He asks students to find answers to a series of questions, including finding the third leading cause of death in the United States. The correct answer is stroke, but try searching “third leading cause of death” in Google. Information literacy problem #1: evaluating sources.

The second take on internet literacy comes from danah boyd’s always-interesting, sometimes-controversial blog, apophenia. Her post “Who clicks on ads?” speculates on a different sort of internet literacy: that of consumers. Recent studies are suggesting that only a small percentage of internet users click on internet advertisements. danah writes that qualitative data from her studies of social network sites suggests that users with lower internet literacy are providing marketers with the coveted click-throughs. As she writes:

“Consumer culture has historically capitalized on poorer populations, long before the web. Studies of consumer culture have shown how American identity has been constructed through consumption over the last century and how, not surprisingly, those who have a stronger need/desire to prove their American identity buy into the consumer culture.”

Is this being replicated online? Hard to tell if she’s right without more data, but it’s certainly interesting food for thought and hopefully, further study. So, information literacy problem #2: information equity.

Finally, problems of internet literacy among a subset of American elites: our legislators. The opinion piece “Don’t Know Their Yahoo from Their YouTube” by blogger Garrett M. Graff in The Washington Post points out that the legislators shaping technology policy in the U.S. have very little idea of how it all actually works. For a medium which is increasingly influential in news, entertainment, education, commerce (I could go on) … and which is fraught with policy questions about equitable access, data collection, privacy and data retention, policing vs. openness and – oh yeah – information literacy (see #1 and 2), this particular case of internet illiteracy seems unforgivable.

-Katie

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Filed under media democracy, Other blogs

OA Milestones – w00t!

We’ve been counting down, and, today….

A big HOORAY for the Directory of Open Access Journals reaching 3,000 journals today – and to Eprints for LIS passing 7,000 documents last week!

Congratulations to the hardworking folk behind both DOAJ and E-LIS!

And to our readers:

Do you edit/review or write for/belong to a society that publishes an OA journal? Make sure it’s indexed is DOAJ!

Do you create Library or Information Science-relevant materials (articles, posters, presentations, etc.)? Make sure they’re archived in E-LIS!

-Greyson

p.s. – had to edit this entry when I heard that w00t was named Merriam-Webster “word of the year”

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On Book Ratings and Empathy

The ALA’s Office of Intellectual Freedom blog has a post up titled “OIF and other organizations oppose book ratings system in West Virginia school system.” The jist is that, as a result of a parental book challenge in a high school, the Kanawa County school board is apparently now considering some sort of rating system for books used in the classroom. The ALA OIF and five other organizations have co-authored a nice letter opposing this notion.

Letter Excerpt:

“Single-letter ratings, such as the board proposes, are inherently reductive and subjective. Novels and other complex materials can’t be described by a letter, and it would be impossible to ensure that materials are rated consistently. For example, does a single instance of profanity warrant an “L” (for “language) rating, or is it 10 instances, or 100? Would the violence in the Bible or Shakespeare require a “V” label? What would be the criteria for labeling something “mature” content?”

Great points, and somewhat amusing to ponder. However, this current event got me thinking, because, as much as I hate to admit it, some teeny tiny part of me relates to the desire for warnings on media materials. Not the useless ratings like they put on movies and television shows these days, when mothers typically die at the beginning of G-rated films but same-sex kisses are Restricted. (I don’t know about your kid, but mine is much more disturbed by the idea of his parents dying than he is by anyone kissing anyone else!) But meaningful alerts to materials I might wish to avoid.

This is why:

When I was a new parent, struggling through the sleep deprivation of living with a newborn, the too-soon return-to-work compelled by the U.S.’s lack of decent family leave systems, the recovery from birthing a brawny nine-pounder in my spare bedroom, and the intense hormonal downloads of the postpartum period, a dear friend of mine gave me Cynthia Ozick’s novella, The Shawl.

For those unfamiliar with the story, The Shawl begins with a short story in which a woman is marched to a concentration camp during WWII, along with her niece and her infant daughter. At the beginning of the story, the daughter was exactly the same age as my son was when I read the book. The woman manages to hide her baby from the Nazis for months, until she learns to walk and toddles out of the barracks, where she is immediately killed in a rather graphic manner. I cried my eyes out after reading this book. I felt destroyed for a short while. And most of all, I was shocked and appalled that my friend would be so callous and horrible as to give me this book at that time.

Never have I longed more for a rating system. I desperately wanted a discreet little symbol on any book containing a dead baby. I could not bear the idea of reading one more account of a baby like mine dying, much less being shot to death by Nazis after nearly starving for a year. I wanted a “DB” on all such books, so that I would not have to suffer repeat trauma brought on by a well-intentioned friend or librarian.

BUT, really, when I look at this scenario rationally, it was a horrible experience brought on by the innocent good intentions of a friend who just didn’t think about my temporary vulnerable state. I was not traumatized for life. I wasn’t even temporarily disabled – just really upset. I had nightmares but still managed to go to work, care for my child, shovel the snow out of my driveway, etc. In retrospect, I actually learned something from this experience — I now often warn new mums I’m friends with about reading traumatic baby-death stories. However, what I took away from this experience was increased empathy and understanding of what it’s like to be a new mum and the feelings of vulnerability that can sometimes come with that position, not a new mission to keep babydeath books out of the hands of the potentially vulnerable new mums of the world!

Why do I even bother sharing this story? Because I think, in our staunch-defenders-of-intellectual-freedom roles, we library-folk can be seen by some as cold and oppositional. Unfeeling. Inhuman, even. We talk in codes and roll our eyes when people don’t know where the LCCN HQ21.S325 is. When a patron tells us they can’t find something in the catalogue, our “sympathetic” response is to agree that the OPAC’s interoperability and user interface leave much to be desired. You get the idea.

And sometimes, maybe just sometimes, the parent who is freaked because she just realised – while reading it aloud to her child –  that King & King is actually about two princes who get married doesn’t really understand that we are also parents who wish we could protect our children from all that is bad in the world — despite the fact that our “bad” and their “bad” may have different definitions and we may have different assessments of how realistic it would be to actually be able to provide such protection.

And maybe, just maybe, sometimes it’s healthy and useful for us to recognize the deep feelings that underlie the urge to want to censor something, even if we would never follow through on any such action. Even though I am on “the other side” (the librarian/IF side) when a parent wants a book out of the school library, it’s important for me to retain empathy for where that parent is coming from in her concern.

So I offer up this story about when I wanted – for few minutes, at least – book ratings warning me about content I found objectionable. Because I truly believe that human connection facilitates education and understanding in a way that no policy statement or weblog rant can. There isn’t always the opportunity to share a humanizing moment with the upset person across the desk, but sometimes, well, sometimes there just might be.

-Greyson

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Housing and Accessing the Record of a Genocide

Over on Feministe, contributor Anne has an interesting post on the fate of the archives documenting the proceedings and findings of the International Criminal Tribunal for Rwanda (ICTR). These archives include case files, transcripts, confidential records and audio/visual materials that document the brutal history of the Rwandan genocide.

http://www.feministe.us/blog/archives/2007/12/10/the-archives-of-a-genocide-where-do-they-stay/

According to Anne (who attended a conference on the subject), there is pressure to move the physical archives out of Rwanda and to The Hague. This is a common archival dilemma: what are the ethics of moving the records of a community (or in this case, nation) into another community for ‘safekeeping’? This is enough of a problem in the local cultural communities of Los Angeles, where moving community records to a major institution (say, UCLA) can set up cultural and physical barriers to access. In the case of the ICTR archive, the problem is greatly magnified by factors such as travel distance, travel cost and visa requirements. Though The Hague may be the safest place to keep the records, moving the records to Europe would present huge barriers to access for Rwandans, to whom these records belong.

Anne mentions in passing, however, a potential way to address to ongoing questions of responsibility for documentary records. Apparently, digital copies have been made of most, if not all, of these records. A digital copy of the record allows physical as well as virtual access to the records. In this case (and in an increasing number of cases, as more of our records are ‘born’ digital), Rwanda could continue to house the physical records, keeping the evidence of history and its victims where its citizens can have access. But these records are also available virtually for access around the world.  Virtual access can facilitate ongoing research by the international community, and an (curated, preserved) virtual record can counter any government attempt to ‘expunge’ the physical records. (In light of my last post, experience shows that this is possible everywhere.) In a world of digital records, our notions of ‘ownership’ and ‘safekeeping’ of the record should change to allow for negotiated, flexible responsibilities. In the case of the ICTR records, the physical evidence can remain in Rwanada, where Rwandans can have the first and best access to these records of this difficult past.

-Katie

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