[open-government] Deciphering licensing in Project Open Data

Fri May 24 19:02:48 UTC 2013

On Thu, May 23, 2013 at 8:06 AM, Josh Tauberer <tauberer at govtrack.us> wrote:

>  On 05/23/2013 10:45 AM, Rufus Pollock wrote:
> > One major question, that perhaps you could clarify on, is the status of
> Federal data *outside* the US.
>
> Hey, Rufus.
>
> I think you're right that federal government data born into the public
> domain here would not necessarily be public domain in other countries.
>

Yeah, that is my understanding, as explained in the legislative history--

https://en.wikisource.org/wiki/Page:H.R._Rep._No._94-1476_(1976)_Page_059.djvu

*The prohibition on copyright protection for United States Government works
> is not intended to have any effect on protection of these works abroad.
> Works of the governments of most other countries are copyrighted. There are
> no valid policy reasons for denying such protection to United States
> Government works in foreign countries, or for precluding the Government
> from making licenses for the use of its works abroad.*

It's really not clear at all how much this legal nuance is actually used to
license or otherwise assert copyright in other countries these materials
that are in the public domain in the US under Section 105). The one example
I've heard of is that the Library of Congress MARC records may be licensed
outside of the US (does anyone have a citation of where this takes place?),
whereas such records would be in the public domain in the US.

>
> But I doubt that question occurred to the White House, and frankly it's
> really not on the radar among open data advocates here either.
>

You might be right that this hadn't occurred to those developing the
policy, although if you look on the Open License Examples page (
http://project-open-data.github.io/license-examples/), there is a specific
call out to *domestic *copyright protection:

*Data and content created by government employees within the scope of their
> employment are not subject to domestic copyright protection under 17 U.S.C.
> § 105.*

In fact, we're leaning slightly in a different direction. Eric Mill has
> suggested that CC0 *not* be applied to U.S. public domain data because it
> may misleadingly imply that the data needed a PD dedication in the first
> place. But, again, the copyright status in other countries hasn't ever been
> a consideration. If we added that consideration Eric might propose
> something a little different.
>
>

>  I also wonder if it is hoped the guidance will inform non-Federal
> government entities at the state and local level?
>
>
> Modulo licensing, I hope it does. Most of the rest of the memorandum is
> very good. But the public domain exception for federal data doesn't apply
> to the states so it gets more complicated (and, from my point of view, more
> dangerous).
>
>
> - Josh Tauberer (@JoshData)
> http://razor.occams.info
>
> On 05/23/2013 10:45 AM, Rufus Pollock wrote:
>
> Hi Josh,
>
>  One major question, that perhaps you could clarify on, is the status of
> Federal data *outside* the US. While I understand the idea that is public
> domain in the US does this also mean it is public domain everywhere else
> (or can a US Federal entity asserts rights in data outside the US)?
>
>  If the latter this would still require a clear "public domain dedication
> or license". I also wonder if it is hoped the guidance will inform
> non-Federal government entities at the state and local level?
>
>  Regards,
>
>  Rufus
>
>
> On 23 May 2013 04:02, Josh Tauberer <tauberer at govtrack.us> wrote:
>
>>  To add on to this and clarify what Timothy wrote about in that post,
>> the memorandum is almost entirely incoherent on the subject of licensing,
>> and in three ways.
>>
>> First, it says that agencies should use open licenses for all data,
>> period. Data produced by the federal government is typically not subject to
>> copyright protection. You can't license something you don't own. If
>> agencies began attempting to create "open licenses" for public domain data,
>> we are going to be in a lot of trouble. (Data produced by government
>> contractors is subject to copyright protection, which is a major loophole
>> in our copyright law.)
>>
>> Second, every place where it mentions "open license" it says something
>> like "an open license that places no restriction on use." That's a
>> *stronger* policy than simply open license. That is to say, I think the
>> memorandum is pretty clear in requiring agencies to use a license that is
>> *both* OKD-style open *as well as* placing no restrictions on use. The only
>> "license" that I know of that does that is CC0 (or the PDDL).
>>
>> Third, the memorandum directs agencies to consult the Project Open Data
>> (POD) github account for implementation advice, but the POD site portrays
>> the policy as if "no restrictions on use" were not in the memorandum. So,
>> again, it's incredibly unclear what the White House intended.
>>
>> Here in the U.S. we have unusually, if not uniquely, strong norms about
>> the government not interfering with public knowledge. Propaganda is
>> illegal. Freedom of the press is incredibly strong (recent events
>> notwithstanding). Requiring attribution to the government, for instance,
>> which might sound reasonable elsewhere, would be a major policy shift with
>> significant legal implications for the press. "No restrictions on use" is
>> our baseline. The consensus in the open data community here has long been
>> that open government data is not "open" (in the sense of the OKD) but
>> license-free. Even though "open license" sounds great, it's actually a step
>> away from freedom.
>>
>> I've written more on this here:
>>
>>
>> http://razor.occams.info/blog/2013/05/09/new-open-data-memorandum-almost-defines-open-data-misses-mark-with-open-licenses/
>>
>>
>> - Josh Tauberer (@JoshData)
>> http://razor.occams.info
>>
>>  On 05/22/2013 02:02 PM, Jonathan Gray wrote:
>>
>>   Thought this might be of interest:
>>
>>  Deciphering licensing in Project Open Data
>>  http://creativecommons.org/weblog/entry/38316
>>
>>  --
>>
>> Jonathan Gray
>>
>> Director of Policy and Ideas  | *@jwyg <https://twitter.com/jwyg>*
>>
>> The Open Knowledge Foundation <http://okfn.org/>
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>
>  --
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>
>  Rufus Pollock
>
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>
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