[od-discuss] Fwd: OGL-Alberta v2.0 and OGL-BC v2.0 conformance decision time

Wed Oct 9 22:00:33 UTC 2013

I think this did not go to the whole list as it was sent from
different address than Herb is subscribed from. (I just changed the
list settings to "reject" rather than "discard" postings from
non-member-addresses, so senders get notice of this.)

Herb's mail is good reading for OD call in 17 hours.

Mike

---------- Forwarded message ----------
From: Herb Lainchbury <herb.lainchbury at gmail.com>
Date: Tue, Oct 8, 2013 at 10:25 PM
Subject: Re: [od-discuss] OGL-Alberta v2.0 and OGL-BC v2.0 conformance
decision time
To: Kent Mewhort <kent at openissues.ca>
Cc: Mike Linksvayer <ml at gondwanaland.com>, Andrew Stott
<andrew.stott at dirdigeng.com>, "od-discuss at lists.okfn.org"
<od-discuss at lists.okfn.org>

Upon further thinking about this thread, I think that there are at
least two issues here, and separating them makes it clearer for me so
here's my synopsis in case it's useful to others.

The first issue is that I can't tell if the license applies because of
the additional clauses in the exemptions sections, which is reflected
in Kent's question:

"But what about when it becomes impossible or impractical for a user
to know when the licence is, in fact, successfully applied to any
particular single work?"

I think we're already there.  I can't figure out when a license is
being applied or not given these exemptions.

In this thread I was saying that I can't see how I can justify calling
a license non-conformant on this basis, because the definition doesn't
currently address how the license is applied.  We have discussed
addressing this in a future update of the definition which is great.

The second issue is what I think Kent highlighted earlier.  Suppose
that I read the license and then referred to a cited act - and I
decide that my intended use of the data violates one of the clauses in
the act.  I decide that the license doesn't apply solely because of my
intended use - which is as Kent points out - is not open.

I was trying to separate out the permission granting part of the
license from the other parts - and consider it open.  But, since the
exclusions themselves are part of the license it's not possible to
remove them.  They are part of the license.  So, my argument to say
that the license is open - and "the applicability is the problem"
really doesn't address the whole problem.  Because the exclusions are
part of the license and some of those exclusions are non-open, I would
agree that the license itself is non-open.

While I can see that the first issue can be dealt with in a future
update of the definition, I can't see how the second issue can be
addressed other than from the publisher side.

H

>
> But so long as a license meets the license related conditions of the definition and could potentially be applied successfully to make at least one work open, then the I think license should be considered open.

But what about when it becomes impossible or impractical for a user to
know when the licence is, in fact, successfully applied to any
particular single work? I think we should be looking at the holistic
effect of clauses, rather than whether they're technically exemptions
or conditions.  Because of the fact that copyright is a exclusive
right held by the copyright owner that's strict liability (it doesn't
matter if you thought the work wasn't exempt or not), a vague
exemption can amount to the same thing as a use restriction.

Hypothetically consider if the restriction in the BC OGL was modified
only slightly to:
 - This license does not grant you any right to use information which,
in the sole opinion of the Government of British Columbia, could
reasonably be expected to harm the financial or economic interests of
a public body or the government of British Columbia.

The only difference from the above versus the real licence is the "in
the sole opinion of the Government of British Columbia"; however, is
leaving it all to the opinion of a court all that much better? If a
person uses some published data to expose the government in a way that
hurts their economic interests, this is going to be excellent proof
that it could have been "reasonably expected to harm" these interests
in the first place.

Specific and clear exemptions which are easily determinable by a user
are fine; ones that are loaded with discretionary clauses such as
"could reasonably be expected" are not clear, put much too much of a
risk burden on the licencee, and, in my opinion, are not open.

Kent