[od-discuss] Open Government License - Surrey 2.0

[Herb Lainchbury]

This is a friendly reminder.  There is approximately one day left to vote
on the Open Government License - Surrey v2.0.

I request that advisory council members indicate whether they agree that
the license conforms to section 2 of the open definition (v2.0) found here:

http://opendefinition.org/od/


Please use +1 for agree and -1 for disagree.


You can find a discussion here:
https://lists.okfn.org/pipermail/od-discuss/2015-February/001278.html

and here:
https://lists.okfn.org/pipermail/od-discuss/2015-March/001293.html


You can find the text for the license here:

OGL Surrey v2.0
http://data.surrey.ca/pages/open-government-licence-surrey


Thank you,
Herb



On Wed, Mar 18, 2015 at 10:54 AM, Andrew Rens <andrewrens at gmail.com> wrote:

> Just to clarify how courts tend to interpret licences:
>
> Peter wrote
>
>>
>>> I agree. Perhaps I am too "scientific" but I believe the licence should
>> be a standalone object which ultimately has to be interpreted in what its
>> says. On occasion a court may ask what was the intention of the legislator,
>> but that's up to the courts to decide
>>
>
> and
>
>
>> I think a court could be concerned with the intentions of the legislator
>> not with the interpretation of the licensor (except to moderate any
>> redress).
>>
>
> Common law (UK, US, Australia, South Africa, India etc) courts set out to
> give effect to the intention of the licensor. The primary means for
> expression of this intention is the licence itself.
> Peter is right that the licence must be considered first without
> introducing other sources for finding the intention of the licensor.
> However language being what it is a licence considered in this way may not
> always be clear on a particular issue. If that issue is in dispute then a
> court will have to look to surrounding circumstances to see whether these
> will resolve the ambiguity.
>
> An important element in the surrounding circumstances is interpretative
> guidance provided by the drafter of the licence e.g. the Free Software
> Foundation giving a public explanation how the GPL should be understood.
> The drafter of the licence is not always or not usually the licensor.
> The interpretation that a licensor places on a licence may also be an
> important surrounding circumstance however how weight it would have would
> depend on factors such as how long the licensor had claimed that
> interpretation, how much attention the licensor drew to it, and to what
> extent it was in conflict with other surrounding circumstances, not only
> the interpretation of the drafter but also community practises. An after
> the fact claim that "what I really meant was..." is not an important
> surrounding circumstance.
>
> A court should never adopt an interpretation of a licence that is contrary
> to what it clearly says even surrounding circumstances suggest that
> interpretation but in the event of ambiguity it would do so. Contracts are
> also interpreted to implement intention but not the intention of one of the
> parties but the mutual intention of the parties - and the primary source
> for that must be the contract. This is one reason why common law open
> source lawyers care whether something is a bare licence or a contract.
> Continental lawyer insist that in all continental legal systems copyright
> licences ARE contracts.
>
>
>>
>> Part of the problem here is that the licensor is also the creator of the
>> licence.
>>
>
> Which would make their stated interpretation especially if it widely
> publicised from the outset more important BUT only in the event of
> ambiguity.
>
> All that is well beyond the Surrey licence but I hope it will be useful to
> future discussions.
>
> For purposes of deciding whether a licence conforms to the Open Definition
> the same procedure should be followed: consider the licence first without
> considering other interpretative sources. If there is ambiguity then see if
> the ambiguity can be resolved by reference to surrounding circumstances
> such as community practise and licence drafter's interpretation. If this
> process does not easily and clearly resolve the ambiguity and the ambiguity
> affects conformance then the licence is not unambiguously conformant and
> therefore does not meet the Open Definition.
>
> Andrew
>
>
>
>> _______________________________________________
>> od-discuss mailing list
>> od-discuss at lists.okfn.org
>> https://lists.okfn.org/mailman/listinfo/od-discuss
>> Unsubscribe: https://lists.okfn.org/mailman/options/od-discuss
>>
>>
>
> _______________________________________________
> od-discuss mailing list
> od-discuss at lists.okfn.org
> https://lists.okfn.org/mailman/listinfo/od-discuss
> Unsubscribe: https://lists.okfn.org/mailman/options/od-discuss
>
>


-- 

Herb Lainchbury, Dynamic Solutions
250.704.6154
http://www.dynamic-solutions.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.okfn.org/pipermail/od-discuss/attachments/20150327/eabb4c26/attachment-0003.html>