[od-discuss] City of Calgary Open Data License Approval Request

Tue Apr 2 16:05:39 UTC 2013

I have been looking into the phrase "You must not distort, mutilate, modify
or take other derogatory action in relation to the Work which would be
prejudicial to the Original Author's honor or reputation."  in
CC-BY-3.0-unported.  This apparently is about "moral rights" [1] and the
text echoes the Berne Convention.  It seems to be about the "integrity" of
the work, for instance about passing off an inferior, modified, work as the
work of the original author.

This has been reconsidered in the drafting of CC-4.0 (see discussion at
[2]).  The wording has not been adopted by some of the national ports of
CC-3.0.  The new approach for CC-4.0 seems to be that the moral rights
should not constrain the reasonable use of the information under the
licence, and does not use the Berne wording. 

[1] http://en.wikipedia.org/wiki/Moral_rights

[2] http://wiki.creativecommons.org/4.0/Moral_rights

From: od-discuss-bounces at lists.okfn.org
[mailto:od-discuss-bounces at lists.okfn.org] On Behalf Of Simbirski, Walter
Sent: 19 March 2013 21:54
To: 'Herb Lainchbury'; 'Kent Mewhort'
Cc: 'od-discuss at lists.okfn.org'
Subject: Re: [od-discuss] City of Calgary Open Data License Approval Request

Hi Herb,

At this time I'm not convinced that the City of Calgary is imposing
additional requirements in its licence when compared to the full legal code
of the Creative Commons licence found at
https://creativecommons.org/licenses/by/3.0/legalcode . 

Our attribution is fully optional while this is not clear with CC. We do not
require share alike.

CC has statement 4.c. "You must not distort, mutilate, modify or take other
derogatory action in relation to the Work which would be prejudicial to the
Original Author's honor or reputation." The City of Calgary states that the
data may not be used for unlawful  purposes and reserves the right to ask
for attribution to be removed if use is not the public interest. CC does not
have the option to request attribution be removed only to terminate the
License (clause 7.a.). It appears to me that the City of Calgary is less
restrictive than CC.

The provision that the user would be bound by later changes to the licence
is problematic as this is contrary to CC and will be reviewed internally. I
do not see this as more restrictive, just different.

The Acceptance of Other Conditions clause may be problematical. As stated in
another post we do not have data sets to which other conditions apply so
there is an easy solution on our side, i.e. remove the clause and set policy
that does not allow data sets with Other Conditions to be included in the
catalogue. This is an option that will be reviewed internally.

The City has combined  Terms of Use with data set licensing which can and
does lead to confusion and we will review this internally.

I agree that the clause "You will be fully responsible for any consequences
resulting from any use of the Data" is unusual and we will review this
internally.  

Our licence in its current form is not reusable and this will be reviewed.

Thanks!

Walter

From: herb.lainchbury at gmail.com [mailto:herb.lainchbury at gmail.com] On Behalf
Of Herb Lainchbury
Sent: 2013 March 19 12:06 PM
To: Kent Mewhort
Cc: Simbirski, Walter; od-discuss at lists.okfn.org
Subject: Re: [od-discuss] City of Calgary Open Data License Approval Request

I think that this lengthy discussion is a demonstration of why we encourage
the use of established re-usable licenses.  A lot of effort goes into every
new license, both on the community side as is evident here, and on the
publisher side as is evident in Walter's statement in his note: "will
require review and approval by the City's legal and intellectual property
departments and this can be a time consuming process".  

Having said that, some publishers still feel like the extra expense and
effort of creating and maintaining their own custom license is worthwhile in
their particular circumstances.  I would rather someone publish data under a
custom license that conforms to the definition than not publish at all.  

The open definition fills the gap between publishers feeling they need a
custom license and consumers, who need some assurance of the legal usability
of published data in order to make the investment required to create
something of value.

On top of that, the definition is beautifully simple to use from the
publisher side.  It allows at most two restrictions from a license
perspective.  1) share alike, and 2) attribution.   If there are any other
requirements stated in the license, it's not considered open.

As Andrew stated above, it looks like the Calgary license does impose
additional requirements.  

Walter, do you think the intention from Calgary is to have the license free
of additional requirements?

Or, are the highlighted points in fact examples of requirements that Calgary
feels it needs to retain?

Herb

On Tue, Mar 19, 2013 at 10:09 AM, Kent Mewhort <kent at openissues.ca> wrote:

Hi Walter,

I can understand where you're coming from about the the lengthy process for
a city legal department to approve a new licence and I see your point that a
review process could help the process.  The problem from my perspective
though is that these legal department approval processes have,
unfortunately, been going a bit awry in Canada.  From the start, even the
first "G4" city licences -- all based on the same Vancouver licence text --
weren't compatible with one another.  Each city's legal department made
their own tweaks and legal strokes-of-hand for further protection, resulting
in similar but not-quite-compatible licences.  From there, as more cities
have commendably got on the open data train, the licencing proliferation
problem has only become worse.

I'd strongly suggest that the internal review process should coincide with
external review processes such as the OD procedure.  This way, problems can
be fixed -- and suggestions, such as using a similar international licence
can be made -- before the drafts become final versions.

Also, the reason I suggest it's a non-reusable licence is because of the
very fact of the "hard-coded" entity and jurisdiction. If I wanted to apply
the Calgary licence to my own work, I couldn't simply provide a hyperlink to
it with a statement that "This Work is licenced under the City of Calgary
Open Data Licence". If the city licence used more generic terms such as the
"Licensor" or "Author" and, if necessary choice of law in the "jurisdiction
of the licensor', other cities looking to apply a similar licence might
instead just directly use the City of Calgary licence -- thereby reducing
licence proliferation.  I'm not so sure I could even just change the
hard-coded entity title, as the city owns the copyright in the actual legal
document with no permission granted to re-use the text.

Kent

On 13-03-19 04:44 PM, Simbirski, Walter wrote:

Hi Kent,

I agree that the current OD procedure should change for all the reasons you
give and I would certainly support such a move.

If the City of Calgary were creating a new licence  it would be
counterproductive to create a "vanity licence" and then ask for a review but
you are assuming that the CC licences are "long-established" in comparison
to the City of Calgary licence. The City of Calgary licence was created in
2010 and modified in 2011 based on what was happening in the Open Data world
at the time. When the licence was created (and modified) the CC licences
were not in the same state they are in today and there was much public
discussion around alternate Open Data licences as well.  The City of Calgary
licence incorporated much of what was in existence but there were no clear
leaders at that time. 

You are also assuming that it is an easy matter for us to replace the
existing license with one that is popular and long-established but that is
not the case. This will require review and approval by the City's legal and
intellectual property departments and this can be a time consuming process.
In order to begin this process it will be helpful to know what elements of
our existing licence are unacceptable. 

I am also not sure why you call our existing licence "non-reusable". The
reference you site states: "Licenses in this group are specific to their
authors and cannot be reused by others. Many, but not all, of these licenses
fall into the category of vanity licenses". I think that the licence could
be used by any government body simply by substituting the legal entity and
jurisdiction. 

Thanks!

Walter

From: od-discuss-bounces at lists.okfn.org
[mailto:od-discuss-bounces at lists.okfn.org] On Behalf Of Kent Mewhort
Sent: 2013 March 19 1:51 AM
To: 'od-discuss at lists.okfn.org'
Cc: Simbirski, Walter
Subject: Re: [od-discuss] City of Calgary Open Data License Approval Request

Walter, I disagree that the " the question is not why the City of Calgary
finds it necessary to have a special license but whether the existing
license is acceptable as is, can be made open with minor modification, or
should be abandoned in favour of what is currently being recommended".
Perhaps this is technically true as per the current OD procedure and the
definition itself, but I think this may need to change.

Sooner or later, we'll need to have some type of policy to deal with licence
proliferation.  The growing list
<http://clip.cippic.ca/license-list.php?cat=Canadian>  (already in the
dozens) of municipalities and other government bodies in Canada who are
coming up with their own custom licences is a disconcerting and increasingly
problematic trend.  The Calgary licence is just one of many Canadian
municipal data licences that could easily be replaced with a suitable
standard licence.  It's also likely the approval of one will just open a
flood gate of every other city in Canada requesting similar approval.

The OSI's report on licence proliferation
<http://opensource.org/proliferation-report>  could be a good starting point
for a policy here, and their justification hits the nail on the head:
"While it might at first sight not seem appropriate for the popularity of a
license to be significant in categorizing it, popular and long-established
licenses have an important thing going for them: the existence of an
established interpretive tradition and a well-developed set of expectations
about correct behavior with respect to them. This is significant in reducing
confusion and (especially in common-law countries) is even likely to
condition judicial interpretation of the licenses."

These non-reusable licences, such as the one the City of Calgary is using,
are typically called "vanity licences" because they're akin to vanity
licence plates: there's no real justification for them other than the
branding of one's own name into the licence and a feeling of control over
the labels and text.  I'd like to see much more justification for the
special needs of the City of Calgary justifying a special licence.

In fact, overall, I'd suggest that a good procedural policy would be a
reverse burden that requires anyone requesting a licence review to justify
why CC, ODC, or, at the very least, national government licences, are not a
suitable fit.  Even without having a strict requirement for a licence to
differ, a procedural step of needing to adequately justify the differences
will at least encourage licencors to look at, and better consider, these
existing options.

Kent

On 13-03-18 08:21 PM, Simbirski, Walter wrote:

Hi Andrew,

Thanks for your response. 

In order to understand why City of Calgary would find it necessary to have a
special license  it should be noted that the current City of Calgary license
is well over a year old, which may not seem very old but it predates some of
the other licenses. So the question is not why the City of Calgary finds it
necessary to have a special license but whether the existing license is
acceptable as is, can be made open with minor modification, or should be
abandoned in favour of what is currently being recommended. We are currently
undergoing what should be a major overhaul of our Open Data Catalogue and
reviewing all aspects of the catalogue including the license.

With that in mind I would answer your questions as follows:

1.       Limiting the liability of the City would be a simpler and better -
agreed.

2.       The "any lawful use" clause is to make it clear that the City of
Calgary does not endorse the use of the data in a manner that would be
deemed unlawful. The issue of jurisdiction may be problematic but we felt
this was less restrictive than a clause such as, "You must not distort,
mutilate, modify or take other derogatory action in relation to the Work
which would be prejudicial to the Original Author's honor or reputation",
that is part of the current Creative Commons License Legal Code (section 4.c
http://creativecommons.org/licenses/by/3.0/legalcode ).  We did not want to
be viewed as limiting the user's right to criticize the City of Calgary.

3.       This is actually two issues - the first being that the user would
be bound by later changes to the license and I agree that this should be
replaced with a statement granting perpetual use under the license applied
at the time of download. The second issue is the one of attribution and,
again, it relates the Creative Commons legal statement identified in item 2
- we felt that we would not restrict users from using the data in a manner
that might be prejudicial to the City's honor or reputation, provided such
use was lawful in nature,  but we also didn't want it to appear that the
City was endorsing products that could be viewed as immoral or as a conflict
of interest even though they may be lawful in nature.

4.       Agreed. No such restriction exists with any data sets available
today but we felt that in the future such data sets could be  made available
directly or indirectly through the Open Data Catalogue. One of the reasons
for this exercise is to obtain permission to use the OKFN's OPEN DATA button
which would provide a readily identifiable means of distinguishing truly
open data sets from those which may have restrictions.

With respect to your statement:

[2] Note that CC-BY 3.0 actually allows the licensor to make the attribution
optional, if that is what you want.  It also has provisions about what to do
if there would be a lengthy list of attributions in a "collection".

Sorry - I'm not seeing that in the CC license. I'm not sure what I'm
missing.

Again - Thanks for taking the time to respond.

Walter

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