[od-discuss] [OTT-GOSLING] They gave us Lady Gaga; we gave them the Open Government Data Camp

Fri Nov 12 17:18:28 UTC 2010

On Wed, Nov 10, 2010 at 4:27 PM, Richard Stallman <rms at gnu.org> wrote:
> What's happening with "open data" seems to resemble what "open source"
> does to the idea of free software.  "Open" is a warm fuzzy term that
> is easy to use to give an aura of friendliness to any activity.  Many
> software developers call their programs "open source" even though they
> do not fit the official definition of same; the natural meaning of the
> word seems to invite this sort of stretching.
> 
> http://www.gnu.org/philosophy/open-source-misses-the-point.html
> describes how this happens with "open source".
> 
> In the US, a collection of facts made by following a rule is not
> copyrightable.  Once it is published, anyone can use it in any
> fashion.  In Europe, there is a stupid data base monopoly law which
> covers collections of data.  (It is quite different from copyright
> law.)  Thus, data published in Europe is not available for others to
> use, and some freedom criteria are needed.

Just to give a bit more background on the legal side of things:

*   "Data" can be anything - images, sounds, text, even code.  From a copyright law perspective, these have different copyright issues than "facts".  That's why I think it helps  to talk about the "contents of a database" and "the database" and distinguish facts (or factual data) separately.

*  Even facts, collected into a database, can have a "database copyright" based on if their selection and arrangement has enough originality, even in the US.  The Feist case held that an A-Z ordering by last name in a given geographical location wasn't enough originality, not that collection of facts in a database could never have originality based on selection and arrangement.  (There's also areas such as the "hot news" exception even in copyright law).

* Even the Feist case isn't a universal norm in copyright law -- see the Telstra case in Australia.  Some jurisdictions apply a "sweat of the brow" style approach to protection that could look at the effort that went into collecting those facts (as opposed to an originality test alone), which would also protect things that Americans might not expect.

* While it's true that there is a European Database Directive, this and copyright alone aren't the only two ways of locking factual data. There's also contract, and where there's at least a plausible copyright claim, technical protection measures. I believe there's also a "catalogue right" in Norway and/or some of the other countries in that region.

* In relation to the above, there's often at least some copyrighted material (or potentially could have copyright) even in databases that collect factual data.

All of these legal rights led in great part to both the Open Definition, the work at Open Data Commons, and for areas such as Science Commons Protocol for Implementing Open Access Data.

<http://sciencecommons.org/projects/publishing/open-access-data-protocol/>

<http://opendatacommons.org/>

I talk a little about this at:

<http://vimeo.com/10976207>

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

More at: <http://www.jordanhatcher.com>
Co-founder:  <http://www.opendatacommons.org>
Open Knowledge: <http://www.okfn.org/>