[open-government] National legal barriers to open data in Europe

[Christian Laux]

I like the 'use of API' versus 'use of data' distinction suggested by Tim.  It
helps us understand what "open government data" is.  But I am aware that the
below is not an answer to the liability concern raised by Stefan:


Stefan's liability concerns need to address by the Terms of use for the API.


Stefan's particular concern ("do not want to be contributorily liable for
spam sent by my users") does not relate to the "open data" discussion,
though.  It is a concern of himself being a service provider ("terms of use"
aspect).

Switzerland, by the way, has a court decision dated 26 February 2008 related
to republishing of commercial register data (case n°.
A-4086/2007<http://relevancy.bger.ch/php/taf/http/index.php?lang=de&type=highlight_simple_query&highlight_docid=azabvger%3A%2F%2F26-02-2008-A-4086-2007>,
follow the link).  The court said that it is permitted to republish
information contained in the Swiss commercial register as long as data is
being republished (i) as is (without modifications, including omissions);
and (ii) not for a fee (unfortunately, that last aspect is not well analyzed
in the decision).


The decision does not address liability concerns raised here.  But it shows
that the liability concern is not an open data concern but a service
provider concern:


1.             if the KVK does not contain email address information then it
is Stefan who adds email addresses taken from other resources.  This shows
it is this very activity that could make him liable (if at all), and not the
nature of the KVK-data which, as such, is not useful for the spammer (as it
does not contain email addresses). SIDE NOTE: From the KVK-excerpts I have
seen in my practice – being a Swiss and not a Dutch lawyer – I do not see
email addresses of individuals in KVK.


2.             if the KVK does in fact contain email address information,
and if the Swiss court is correct to state it is mandatory to republish
information "as is", this shows that there is no restriction from the data
side to republish the data.


 I admit, in this scenario #2 the analysis is not of much help to Stefan,
yet (the result is: "information is free, but it can be dangerous to
republish it").  But as we are exploring the boundaries of "open government
data", it is important we are clear in our arguments.


Two additional remarks: Yes, it is important to understand whether combining
data from various countries is possible.  And yes, this list can/should
contribute to this.


Regards, Christian


2011/1/5 Chris Taggart <countculture at gmail.com>

>
> On Tue, Jan 4, 2011 at 10:06 PM, Tim McNamara <paperless at timmcnamara.co.nz
> > wrote:
>
>>
>>> To address that concern however, OpenKvK could explicitly have two
>> licence agreements with its users. One for use of the API and one for the
>> use of the data themselves. This would allow the service to have the
>> security of a widely known licence, such as the ODbL and also keep their API
>> as widely open as practical.
>>
> That doesn't help with the problem of an increasing number of licences
> which are not interoperable
>
>>
>>
>>> However, my overriding point was that it's not clear which laws apply in
>>> any given territory, and it would be useful for the community if there was a
>>> resource bringing these together in one place.
>>>
>>
>> Individual cases will be different, but I imagine that most data API
>> providers will state that in their terms of use that the relevant
>> jurisdiction in the case of problems is their own.
>>
>
> This is the problem, in a nutshell: it's not clear to a reuser what the
> applicable laws in that jurisdiction, which means it's problematic combining
> data from different countries (and that's what I'd love OKFN take a lead in
> helping put together).
>
>
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