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

Sat Dec 7 12:53:58 UTC 2013

Interesting....my first take on the U.K. provision is that the license
is inclusive of information that's either "published", or that's
"disclosed under information access legislation".  I interpret the
clause-break this this way largely because information is not generally
"published...under information access legislation", it's only
disclosed.  Thus, if information is even placed online through an open
data portal, this would be publication and easily fit the first
criterion -- without the need to be disclosed under information access
legislation.  If my interpretation is correct, the purpose of this
clause is merely to make it clear that unpublished, nondislosed
information leaks are not licensed.

What do others think? This clause could certainly be interpreted
differently and I'm not certain of the intention of the drafters.

By the way, I should also mention that there could be other
interpretations of the issues I raised with respect to the interaction
between the BC OGL and BC FIPPA.  This, however, is in my opinion one of
key problems of the license.  I think the broad stroke of bringing in BC
FIPPA with a one-liner in the BC OGL leaves a lot of guesswork and legal
uncertainty of how the two interact.  I can barely make heads or tails
of the nuanced interactions, and I'm a lawyer with quite a bit of
experience with licenses and also some experience with Canadian FOI
legislation.  There's no way that most users are going to be able to
figure out for certain what's exempt, what's not, and what could become
exempt in the future.

Kent

On 13-12-07 02:11 AM, Wrate, David GCPE:EX wrote:
>
> Thank you for your answer Kent, it definitely gave me more to consider.
>
>  
>
> So after further thinking, I have to ask a question:
>
>  
>
> If the compliance problems with the OGL-BC all relate to the
> Exemptions section which incorporates the BC FIPPA, why is the
> Exemptions section of the conformant UK OGL v2, which references the
> FOI Acts for the UK and Scotland also not problematic?
>
>  
>
> ·         information that has neither been published nor disclosed
> under information access legislation (including the Freedom of
> Information Acts for the UK and Scotland) by or with the consent of
> the Information Provider;
>
>  
>
> If my notes are correct, the FIPPA reference was also the point of
> issue on the conformance call in October. If this question can be
> settled, we can work out how to deal with it in our template and
> adoption guidelines
>
>  
>
> Thanks,
>
> David
>
>  
>
> *From:*kent at openissues.ca [mailto:kent at openissues.ca]
> *Sent:* December-05-13 1:41 AM
> *To:* Wrate, David GCPE:EX; od-discuss at lists.okfn.org
> *Subject:* Re: [od-discuss] Provincial and Game OGLs; Open Definition 2.0
>
>  
>
> 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> <mailto: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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