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Comments on the Panton Principles and Data Licensing

March 25, 2010 in Legal, Open Data, Open Data Commons

These comments were originally written a few weeks ago as part of an interesting thread on John Dupuis’ blog post about the Panton Principles.

What’s “Open” and Why Do the Panton Principles Recommend PD-only

The Open Knowledge Foundation’s general position is one of supporting open data where “open” data includes data made available under licenses with attribution and share-alike clauses, though non-commercial restrictions are definitely not permitted (see http://www.opendefinition.org/ for precise details). The reason for excluding non-commercial is simple: share-alike is compatible with a commons open to everyone but non-commercial is not.

Panton Principles 1-3 are, in essence, saying make data “open” in the sense of http://www.opendefinition.org/. Principle 4 goes beyond this to specifically recommend public-domain only for data related to published science, especially where the work is publicly funded.

The rationale for this “stronger” position, at least for me, was that a) science has existing (very) strong norms for attribution (and, to a lesser extent, share-alike) b) science has strong up-front funding support from society which reduces some of the risks that share-alike addresses.

That said, I should emphasize that, in my view at least, the key feature is that the data be made open — public domain dedication/licensing is “strongly recommended” but if you end up with an attribution or even share-alike type license that is still far, far better than not making the data available at all, or licensing it under non-commercial or other conditions.

Attribution Stacking and Copyleft (Share-Alike)

I remain completely unconvinced by the attribution stacking argument against attribution requirements in licenses, and I find its logic in the area of science and the PP rather incoherent: we expect attribution to happen even with PD since it’s part of the community norms in science. As such attribution stacking happens with or without a license — unless attribution actually won’t be happening which is a serious issue ….

I’m also unclear why copyleft does not work for DBs. Using CC sharealike license for DBs isn’t a good idea but there are other licenses such as the Open Database License (ODbL).

For more detail see earlier posts such as: http://blog.okfn.org/2009/02/02/open-data-openness-and-licensing/ and Lhttp://blog.okfn.org/2009/02/09/comments-on-the-science-commons-protocol-for-implementing-open-access-data/>

Contract and the ODbL

Cameron Neylon in his comments wrote:

GPL/CC licences do not work for data across jurisdictions. They rely on copyright. Data in most places cannot be copyrighted. Where it can is inconsistent. Whatever else you do don’t use copyright licences on data because they will scare off the good guys and the bad guys will simply ignore them because they are un-enforceable. You can in principle use contract law to create similar restrictions (and the ODbL does this) but you need to ask yourself whether you want to bring contract law into this space. The consequences might not be what you want.

I think this is a bit of a misconception on several levels. In particular, the contract point about the ODbL is, in my view, very minor and is turning into a bit of FUD so I should correct it.

In my view, the main “enforcement” mechanism of the SA conditions in the ODbL remains existing IP rights whether copyright or sui-generis DB rights. Even the US where copyright in data(bases) is “weak” some copyright likely exists in most situations — though of course not phone directories! I’d also point out that CC licenses also operate as contracts, at least in common-law jurisdictions such as the US and the UK so it’s not as if the ODbL is being particularly unusual (though the ODbL is more explicit about this than CC licenses …)

The main reason you don’t want to use the GPL or a CC share-alike license is that it that they a) don’t deal with all relevant rights and b) they are not designed for data(bases) so they don’t deal with all the issues “nicely” (just as CC licenses were created for content despite the existence of existing “open” licenses for code because of the need for customization to the content situation). For more on this see the relevant section of the Open Data Commons FAQ.

Sharealike and Commercial Use

Lastly, I think it important emphasize that I don’t see Share-Alike as non-commercial or anti-commercial. In the free/open-source software world there is lots of commercial activity around codebases that are GPL’d.

Of course, it definitely makes it harder for some commercial users to use the information if they want to use proprietarily or directly combine it with proprietary data and it also can cause problems when intermixing with other sets of data with openness restrictions (such as those caused by privacy restrictions). However, at the same time, I would point out that it can also encourage commercial use since commercial participants know their contributions won’t be “free-ridden” upon.

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