[od-discuss] Provincial and Game OGLs; Open Definition 2.0

Thu Dec 5 09:40:31 UTC 2013

David, the compliance problems I see with the BC OGL 2 all relate to the
incorportion of BC FIPPA into the license.  I'll outline a few specific
issues:

*OD clause 9, Distribution of License:* /The rights attached to the work
must apply to all to whom it is redistributed without the need for
execution of an additional license by those parties./

Under the BC OGL, the rights do not apply to the work until you take
further steps under FIPPA.  The BC OGL exempts all information "not
accessible" under FIPPA, and under FIPPA "[t]o obtain access to a
record, the applicant must make a written request" (s. 5(1)).  This
written request is not exactly an additional license, but it's along the
same lines of additional procedural and legal hurdles.  Even data
ostenibly released under the BC OGL is apparently not actually licensed
to a user until she or he clears access through the FIPPA process.

*Discrimination Against Persons or Groups (OD clause 7) and
Discrimination Against Fields of Endevour (OD clause 8)*

There are numerous clauses in BC FIPPA that can exclude information
depending on how it's expected to be used. For example, under 16(1), the
"head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to (a) harm the
conduct by the government of British Columbia of relations between that
government and any of [other municipal, provincial or state governments]."

The discretionary nature of this provision ("may refuse") means that
works can be excluded depending on how it's expected to be used. In
particular, a lot of government-critical news reporting using licensed
information could be expected to potentially harm relations with other
government bodies.

Most problematically, the availability of these discretionary clauses
essentially gives the head of a public body the ability to revoke the
license at will. It seems that a head of a public body can at any time
"refuse to disclose" a work (upon a request for it), in which case the
work isno longer "accessible" under FIPPA, and therefore not licensed.

*Non-commercial**restriction*

The license effectively contains a non-commercial restriction (a common
special case of discrimination against fields of endeavour).  If anyone
were to make a work "available for purchase by the public", this would
immediately exempt the work from BC FIPPA under s. 3(1)(j), and
therefore also immediately revoke the license (both for the would-be
seller and everyone else).

Note that the federal and Alberta licenses don't incorporate FIPPA
legislation in these manners.  The Alberta license exempts information
"not accessible under applicable laws", but, at least in my
interpretation, this would not incorporate Alberta's FIPPA.  In the case
of open data, FIPPA in not an "applicable law", as its scope is clearly
set out as only applying to a ATI requests, not to the government
pushing-out open data to the public.

Kent

On 13-12-05 10:11 AM, Wrate, David GCPE:EX wrote:
> I am however very curious why you feel the federal and Alberta versions are OD compliant while the BC (and presumably the ON version as well) is not compliant. 
>
> David
>
>> On Dec 4, 2013, at 11:45 PM, "Kent Mewhort" <kent at openissues.ca> wrote:
>>
>>> On 13-12-04 07:53 AM, Paul Norman wrote:
>>> That is a lot of licenses to have to analyze and compare. I looked at Surrey's
>>> and aside from the different branding, the first line of attribution requirements
>>> uses a "Information Provider(s)" instead of "Information Provider". The OGL 2.0 
>>> (the original UK one) uses the same terms as Surrey. If we do declare a template 
>>> OD-compliant, how are we going to handle cities making changes like this?
>>>
>>>
>> It's also a lot of licenses for license users to analyze, understand,
>> and determine compatibilities!  In any case, I think to declare a
>> template OD-compliant, the template would need to only allow very narrow
>> branding changes.  It would create problems to approve a template
>> allowing changes along the lines of, for example, the differences
>> between OGL2-Canada, OGL2-BC, and OGL2-Alberta (in my preliminary
>> opinion at this point, OGL2-C and OGL2-AB are OD-compliant, OGL2-BC is not).
>>
>> Also, for OD 2.0, I wonder if we should think about baking-in some type
>> of anti-proliferation clause into the definition itself, rather than
>> merely having a category of non-reusable licenses.  License
>> proliferation is certainly a serious barrier to the openness of works,
>> as it prevents a lot of reuse and remixing -- making the works not
>> "open".  I'd have to think about it more before proposing concrete
>> wording, but I'd think that state level licenses or license templates
>> should probably be okay, with licenses aimed at any narrower group not
>> acceptable.
>>
>> Kent
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