[odc-discuss] does the PDDL cover the "data already in public domain by law" use case?

[Francis Davey]

Augusto,

The principle difficulty with any kind of public domain marking is that it
is not always possible to know whether or not a work is subject to
intellectual property rights of one kind or another. There are now some
excellent tools that will mostly get the right answer (provided the
information is available) for copyright in most of the world. The same is
not true for database right.

The problem for someone who curates a collection of data will be: do they
have a database right (or perhaps also copyright in the database)? This is
not an easy question to ask. I am probably one of the very few database IP
specialists and there are a great many important data sets about which I am
uncertain.

The reason for this situation of relative ignorance is the very small
number of court of justice decisions on the point. We know that database
right doesn't exist in certain circumstances and may do in some others, but
there are many cases where this is simply not known.

For someone who _might_ have intellectual property rights in a work or
database, CC0 or PDDL are common sense licences. They allow someone to
relinquish any rights they might have. This in turn gives comfort to anyone
else who wishes to use the works that if the licensor did have rights, that
won't be a problem for them.

This kind of situation is very common indeed.

CC0 and PDDL allow (though not, I accept, as clearly as one might hope)
this because there of the use of "any". There is, if you like, a
quantification over an empty set. I can give you all the rights I have and
still give you nothing if I have none. There is nothing logically or
legally inconsistent about that.

As for the public domain mark - you would have to be fairly confident
(brave?) to use it on anything that hasn't been in publication for a really
long time because you might be wrong. Copyright is like that.

I hope that clarifies a bit.

Francis

2014-09-30 18:55 GMT+01:00 Augusto Herrmann <augusto at okfn.org.br>:

> Hi.
>
> A recent discussion [1
> <https://github.com/okfn/publicbodies/issues/64#issuecomment-57188473>]
> between Rufus and me on Github raised the question of whether or not the
> Public Domain and Dedication Licence (PDDL) could be applicable to data
> that is already in the public domain by law, where is no copyright or other
> intellectual property to be relinquished.
>
> That issue is very similar to the question that differentiates between the
> Creative Commons CC-Zero and Public Domain Mark [2
> <https://wiki.creativecommons.org/CC0_FAQ#What_is_the_difference_between_CC0_and_the_Public_Domain_Mark_.28.22PDM.22.29.3F>].
> You can only relinquish your IP rights when you have them to begin with. If
> something is already in the public domain regardless of choice by its
> publisher, the appropriate thing to do is to just tell people so. The
> Public Domain Mark (PDM) is a standard way to do so.
>
> With this in mind, I ask the question whether or not, for the case where
> data is already in the public domain, the PDDL would be appropriate.
>
> According to the licence "the purpose of this document is to enable
> rightsholders to place their work into the public domain" [3
> <http://opendatacommons.org/licenses/pddl/1.0/>]. Other passages in the
> document also make it clear that the PDDL is an instrument meant
> specifically to relinquish any IP rights. What this means is that, if
> you're not a rightsholder (such as in the case where the data is already in
> the public domain), the document (the PDDL) does not fit your purpose. Or,
> as in the PDDL itself: "Just like any licence or other document dealing
> with intellectual property, rightsholders should be aware that one can only
> license what one owns."
>
> To conclude, i would argue that, for the cases where some data is already
> ascertained to be in the public domain by law, one should use the Public
> Domain Mark [4 <http://creativecommons.org/publicdomain/>] instead of the
> Public Domain Dedication and Licence or CC-Zero.
>
> Best regards,
> Augusto Herrmann
>
> [1] https://github.com/okfn/publicbodies/issues/64#issuecomment-57188473
> [2]
> https://wiki.creativecommons.org/CC0_FAQ#What_is_the_difference_between_CC0_and_the_Public_Domain_Mark_.28.22PDM.22.29.3F
> [3] http://opendatacommons.org/licenses/pddl/1.0/
> [4] http://creativecommons.org/publicdomain/
>
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-- 
Francis Davey
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