[od-discuss] [open-government] Advice on Open Dataset Terms & Conditions in Hong Kong

Tue Jul 23 15:27:46 UTC 2013

Brian

I was concerned by clause 8(iv):  “*you* shall indemnify the *Government*
against any allegations or claims of infringement of the rights of any
person and all costs, losses, damages and liabilities incurred by the
Government, which in any case arise directly or indirectly in relation to
your use, reproduction and/or distribution of the Data”.  This seems to
mean that if the Government releases data which infringes the rights of a
third party then the data user is not only at risk of action by the third
party but also at risk of picking up the bill if the third party takes
action against the *Government*.

This is different and in addition to clauses 3 and 13 which makes clear that
the Government does not accept any liability *to* the data user for
infringements of third party rights in the Data.  This latter is the more
normal case - there is a similar provision in clauses 5 and 6 of Creative
Commons Attribution 3.0 Unported, for instance.

Regards

Andrew

From: Brian Gryth [mailto:briangryth at gmail.com]
Sent: 23 July 2013 13:17
To: Andrew Stott
Cc: Bill Proudfit; Mart van de Ven; od-discuss at lists.okfn.org;
open-government at lists.okfn.org
Subject: Re: [open-government] Advice on Open Dataset Terms & Conditions in
Hong Kong

Andrew,

I don't disagree, but these terms maybe a reflection of Chinese law. As I am
not an expert I can't make further comment on the particulars.

Could you expand on your indemnity comment? Is your concern related to Data.
One's indemnity clause? Or is your concern with indemnity in general?

Thanks
Brian

Sent from my Incredible 4G

On Jul 23, 2013 5:09 AM, "Andrew Stott" <andrew.stott at dirdigeng.com> wrote:

Bill

Thanks for drawing these Terms and Conditions for the Hong Kong Data.One
site to our attention.  We regularly discuss whether licences for government
data conform to the Open Definition (http://opendefinition.org/) on the
od-discuss list.  Of course, Data is not Open Data unless it is Open.

I agree with you that the Terms and Conditions for the Hong Kong Data.One
site do not seem to conform with the Open Definition, and so the data could
not be considered “open data”. Particularly problematical are:

(1) the requirement for any re-distribution of the data to be “in its
original format” and “reproduced … accurately”.  This looks like a “no
derivatives” provision, which would prevent the data from being Open.

(2) the ban on the sale of the data - “sale of any Data by you is
absolutely prohibited in all circumstances”.  This conflicts with the Open
Definition, and there are a number of use cases  and business models (eg
Data Curation, service-level guaranteed APIs, information-giving
applications, Value-Added processing) where charges may well be made even
though the downstream customer could still obtain the raw data directly and
free of charge from the government.

(3) the clauses limiting “unpleasant” uses of the data - this means that
that data cannot be freely reused, and these matters should be handled
through the normal law and its enforcement rather than through licensing

The provision for the indemnity by the user to the government for the use of
data supplied by the government is also problematical.

More widely, the problem here seems to be that the terms and conditions do
not seem to envisage the sort of use cases which have been proven in other
jurisdictions to give economic and social value and to generate business
innovation.  Open Data is about reuse of data, not just access to it.  The
no-derivatives requirement and the ban on the sale of the data together
would make the development of a vibrant applications market practically
impossible.  So what are the Hong Kong Government’s other policy objectives
here?!

Regards

Andrew Stott

From: open-government-bounces at lists.okfn.org
[mailto:open-government-bounces at lists.okfn.org] On Behalf Of Bill Proudfit
Sent: 23 July 2013 01:42
To: open-government at lists.okfn.org; od-discuss at lists.okfn.org; Mart van de
Ven
Subject: [open-government] Advice on Open Dataset Terms & Conditions in Hong
Kong

The HK Government has the Data.One site with about 1,500 or so datasets.
I'm interested to know if the terms & conditions covering these datasets are
within the range of variation of the terms and conditions of other
governmental open dataset sites.

Here is the link to the HK terms & conditions.

http://www.gov.hk/en/theme/psi/terms_conditions/

The Open Data Handbook has this guidance on licenses.  I'm taking licenses
to mean the same as terms & conditions.   It seems to me that the HK
Data.One site's terms & conditions are not in step with these guidelines.

Is it common for locations to have opendata sites which do not meet these
guidelines?

What steps could be taken to get governments to follow these guidelines?

<http://opendatahandbook.org/en/how-to-open-up-data/apply-an-open-license.ht
ml>
http://opendatahandbook.org/en/how-to-open-up-data/apply-an-open-license.htm
l

Any guidance or suggestion would be great.

Many thanks,

Bill

--
Bill Proudfit
鮑偉霖
Hong Kong
baoman.wordpress.com
www.linkedin.com/in/proudfit
twitter ~ baoman

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