Open Data and the Law: ISWC 2009
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Open Data & the law ISWC 2009 Jordan S. Hatcher, JD, LLM Co-founder, Open Data Commons Board of Directors, Open Knowledge Foundation Lawyer and strategy consultant in IP/IT 1 Monday, 26 October 2009
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Presentation on open data and intellectual property law as part of a half day tutorial at the International Semantic Web Conference 2009.
Transcript of Open Data and the Law: ISWC 2009
Open Data & the lawISWC 2009
Jordan S. Hatcher, JD, LLM
Co-founder, Open Data Commons Board of Directors, Open Knowledge FoundationLawyer and strategy consultant in IP/IT
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Open Knowledge Foundationhttp://www.okfn.org
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We promote open knowledge
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http://www.okfn.org/projects 5Monday, 26 October 2009
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Key points:
1. Legal rights can cover data & databases2. Legal rights require legal solutions3. Legal solutions for open data exist
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A few questions before we get started....
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What do you mean by data?
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Have you ever used an open source license?
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Have you ever used a CC license?
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Key points:
1. Legal rights can cover data & databases2. Legal rights require legal solutions3. Legal solutions for open data exist
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•Why we care – (importance of data)
•Basics of IP
•How copyright applies to databases
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Search
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You’re low on
Milk It’s already been ordered
...and I ordered skim this time
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A2K ScienceLinked Data
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More data allows cooler stuff
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IP and other rights
(contract)
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trademarks ®™
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trade secrets
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patent
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© Copyright 2009. All Rights Reserved.
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pipe smoking detective who likes to use reason
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Copyright: original works fixed in a tangible medium of expression
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original as not copied
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“It would be a dangerous undertaking for persons trained only to the law to constitute themselves
final judges of the worth of pictorial illustrations…”
Bleistein v Donaldson Lithographic, 188 U.S. 239, 251 (1903).
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facts as not original
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but some jurisdictions lean towards a“sweat of the brow” approach for originalityi.e., they use copyright law to protect the effort that went into collecting those facts
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Copyright flows from the pen to the paper
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Copyright - exclusive rights granted
• Reproduce the work (make copies);
• Distribute the work to the public;
• Rent or lend the work to the public;
• Publicly perform the work;
• Broadcast the work or include it in a cable television service; and
• Adapt the work or to do any of the above with an adaptation of the work.
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No access without permission
(permission culture)
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© = life + 70
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1. Notice not required
2. No registration required
3. No single international copyright system
4. Not absolute - there are exceptions (Fair use)
5. Noncommercial use isn’t a free pass
CopyrightMythbusting
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3 key points about ©
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Films
Sculpture
PlaysPhotographs
Performances
Musicletters to gran
broadcasts
databases Novels
Computer Programs
Web sites
Dance
Buildings
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Facts
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No access without permission
(permission culture)
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Licensing giving permission
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1. Covers a lot of stuff
2. Doesn’t cover facts, but collections of facts gets tricky
3. Licensing is how you get permission
Copyrightkey points
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Crash course in IP and DB’s
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Privacy vs Property
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IP and
(contract)
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database:a collection of material arranged in a systematic or methodical way and individually accessible by electronic or other means
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1. Content inside the database
2. Database itself
3. Database software©
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Database Rights
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1. EU Directive (and EU only)
2. Automatic protection
3. Overlap w/ ©
Database Rights
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1. Content inside the database
2. Database itself
Database Rights
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contract
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contract
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Other IP rights
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TPMs – legal protection for digital locks on ©ontentTrademarks – like any other productTrade secret – like any other company information
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Key points:
1. Legal rights can cover data & databases (& why we care)
2. Legal rights require legal solutions3. Legal solutions for open data exist
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Key points:
1. Legal rights can cover data & databases (& why we care)
2. Legal rights require legal solutions3. Legal solutions for open data exist
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Importance of data+
Legal rights over data
Need for a legal solution=
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• automatic•worldwide• covers databases• life+70•no notice required
©
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No access without permission
(permission culture)
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Options
1. Ask for a licence.
2. Use under an exception (fair use or fair dealing).
3. Infringe
4. Use something else
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Options
1. Ask for a licence.
2. Use under an exception (fair dealing such as criticism or private study).
3. Infringe
4. Use something else
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1.What is “open”?
2.What is open data?
3.What is Share-Alike?
4.What is open licensing
Baseline
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Open Defined opendefinition.org
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• Use
• Reuse
• Redistribute
• Attribution & Share Alike okay
“open”
http://www.opendefinition.org/buttons
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Open data is the application of many the same principles and philosophies as free and open source software and open content projects such as Creative Commons to data and databases.
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Share Alike
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CC Licence Elements
• Attribution (BY): The work is made available to the public with the baseline rights, but only if the author receives proper credit.
• NonCommercial (NC): The work can be copied, displayed and distributed by the public, but only if these actions are for non-commercial purposes.
• No Derivative works (ND): This licence grants baseline rights, but it does not allow derivative works to be created from the original.
• Share-Alike (SA): Derivative works can be created and distributed based on the original, but only if the same type of licence is used – reciprocal licensing.
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Six CC licences
• Attribution (BY)
• Attribution | No Derivatives (BY-ND)
• Attribution | Non-Commercial | No Derivatives (BY-NC-ND)
• Attribution | Non-Commercial (BY-NC)
• Attribution | Non-Commercial | Share Alike (BY-NC-SA)
• Attribution | Share Alike (BY-SA)
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Six CC licences
• Attribution (BY)
• Attribution | No Derivatives (BY-ND)
• Attribution | Non-Commercial | No Derivatives (BY-NC-ND)
• Attribution | Non-Commercial (BY-NC)
• Attribution | Non-Commercial | Share Alike (BY-NC-SA)
• Attribution | Share Alike (BY-SA)
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How you use it...Open licensing
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Consumer of content
Finding stuff (software, content, databases)
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• making your IP management easier
• lowering your risks
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Releasing your stuff
Producer of content
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Pirates or partners? You decide...
(and remix)
data
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Approaches to p2p
• No rights reserved - Public domain
• Some rights reserved -open licensing
• All rights reserved - Soft enforcement
• All rights reserved - Heavy enforcement
(and remix)
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Key points:
1. Legal rights can cover data & databases (& why we care)
2. Legal rights require legal solutions3. Legal solutions for open data exist
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• open data commons origins• how the open data commons tools
work
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OpenDataCommons - origins
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Importance of data+
Legal rights over data
Need for a legal solution=
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OpenDataCommons.org
Legal tools for Open Data
2007 → Talis → Open Knowledge Foundation
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Why start a licensing project?
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Software Content Data
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Diffusion of Innovations / Technology Adoption Curve
OpenData
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GPL, FSF, OSI, BSD... = softwareCreative Commons... = content
Data is different from software and content both legally and in what you do with it
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• No Public Domain tool for databases existed
• Demand for a share alike database license & CC seen as poor fit
OpenDataCommons
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Why CC-BY-SA is a poor fit.
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http://creativecommons.org/licenses/by-sa/2.0/legalcodeCC-BY-SA (2.0 Generic/US)
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• Not all relevant rights licensed
• Not consistent b/w international licenses
Legal
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• Attribution trigger broad and unclear
• Share Alike unclear when combining with other work (collective works)
• Doesn’t address SaaS
Practical
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“Creative Commons does not recommend using Creative Commons licenses for
informational databases”
Source: http://sciencecommons.org/resources/faq/databases
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Open Data Commons: Legal tools
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• Public Domain Dedication and License (PDDL)
• Open Database License (ODbL)
• Database Contents License (DbCL)
Open Data CommonsLegal tools:
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Who is using and proposing to use Open Data Commons tools...
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Common approach to ODC tools
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Worldwide application
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Human readable license
The party of the first part ("you") agree with the party of the second part ("the presenter") that by hereby reading this terms conditions warranties disclaimer and waiver of liability that you disclaim any and all liability for anything whatsoever from now to the end of eternity in this universe or any parallel dimension or universe whether or not accessible via a wormhole by using a sun's gravitational pull on the part of the presenter and furthermore agree forthwith not to throw tomatoes or any other object (paper money excluded) at the presenter throughout the entirety of any and all presentations now known or hereafter created and that this presentation creates no licence, permission, contract, property rights, or claim in any court (temporal or spiritual) for you to actually view, watch, read, or otherwise mentally digest its contents though you are invited to do so only on the above-referenced terms and that if you have been sent this presentation by mistake you must destroy, delete, or demolish the file for to not do so would cause disaster and/or chaos on the part of the party of the second part.
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Open Database License (ODbL)
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ODbL =
<http://www.opendatacommons.org/licenses/odbl/>
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(contract)
ODbL trifecta
(contract)
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1. Database (ODbL)
2. Contents
3. “Produced Work” (ODbL)
Elements
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Database Contents License (DbCL)
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Contents (the “data”) can be anything:facts, ages, dates, sonnets, images, textobservation notes, IP addresses, postal addresseshaiku, tweets, telephone numbers, income level, NI numbersurvey responses, music lyrics, film cast listings, patent numbers,filing dates, marital status, racial information, education leveland on and on and on...
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Contents of the database will be in a spectrum:
Some will clearly have ©Some will arguably have ©Some will not have © (particularly facts)(many databases of factual information will still contain © contents)
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1. Database – ODbL
2. Contents – DbCL
3. “Produced Work” – ODbL +DbCL
Elements
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Public Domain Dedication & License (PDDL)
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Protocol for Implementing Open Access Datahttp://sciencecommons.org/projects/publishing/open-access-data-protocol/
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3.1 The protocol must promote legal predictability and certainty.
3.2 The protocol must be easy to use and understand.
3.3 The protocol must impose the lowest possible transaction costs on users.
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PDDL
http://www.opendatacommons.org/licenses/pddl/1.0/
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PDDL + Community Norms
PDDL
http://www.opendatacommons.org/norms/
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<http://www.legalbluebook.com>147Monday, 26 October 2009
Key points:
1. Legal rights can cover data & databases (& why we care)
2. Legal rights require legal solutions3. Legal solutions for open data exist
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Closing thoughts
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Identify the risksWhat are the risks for your activities?____________________________________• Risk Avoidance – Pick what you do.• Risk Reduction – Find ways to reduce the
liability on what you do.• Risk Acceptance – Define your level of
acceptable risk and go ahead.• Risk Transfer – Share the risks – Insurance for
example.
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Protocol for implementing open access data
ODbL PDDL
OpenDataCommons
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Collecting data is hard...
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Thank you to Talis, OSM community, ODC-discuss list, commenters, Science Commons, & OKFN for
feedback and support!
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How you can help:
• Volunteer to help bring open data to your community as a Community Contact.
• Support the OKFN.
• Join the OKF discuss list.
• Feedback. Have an idea how we can help or what we should be doing? Let us know.
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Thanks!
www.OpenDataCommons.org www.okfn.org/support
Jordan S. Hatcher
e: webcontact ]AT[ opencontentlawyer D O T comw: www.jordanhatcher.com
All original and CC-BY-SA derivative works licensed under a Creative Commons Attribution-Share Alike 2.5 UK: Scotland Licencehttp://creativecommons.org/licenses/by-sa/2.5/scotland/
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Questions?
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Thanks!
www.OpenDataCommons.org www.okfn.org/support
Jordan S. Hatcher
e: webcontact ]AT[ opencontentlawyer D O T comw: www.jordanhatcher.com
All original and CC-BY-SA derivative works licensed under a Creative Commons Attribution-Share Alike 2.5 UK: Scotland Licencehttp://creativecommons.org/licenses/by-sa/2.5/scotland/
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Questions?
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