It seems somewhat absurd to me that publicly funded institutions in South Africa should be allowed to copyright data produced using public funds. Of course, it is reasonable to expect that physical assets such as buildings, vehicles or machinery should appear on their balance sheets and be reserved for their exclusive use. But knowledge? I’m not so sure. Assuming that the information in question cannot reasonably be considered a state secret, the revelation of which would harm national interests, I would expect that it cannot be owned or its use restricted to taxpayers.
Here’s an recent example:
The Municipal Demarcation Board is an independent organisation tasked by government with determining the borders between municipalities in South Africa. They are publicly funded, having received R38.5m ($4.3m) last year from the national treasury. Boundaries are published in the government gazette and are considered to be public knowledge. I am not a lawyer, but intuitively, this data cannot be considered to enjoy protection of copyright laws.
In order to clarify the situation, I contacted them and asked whether, as a citizen of South Africa, I was allowed to download the data from their site and use it for commercial purposes. The response that I received was:
“Unfortunately there is a lot of commitment to our data and it is copyright to us and we cannot allow you to use it commercially at all.”
As an exercise, I surveyed copyrights on the websites of 4 national agencies, including the national statistics agency and the electoral commission, as well as the websites of all 9 provinces and the 8 metropolitan municipalities. In some cases, licensing was unclear or missing. In the remaining cases, copyright was claimed and commercial use excluded, even for derived data products. This is
reminiscent of the GPL licence but in reverse (all derived products should be restricted under the same rules). Most licences allowed for personal use and for reference purposes while some granted re-distribution rights (to third-parties for personal use or reference purposes).
It is of course possible that these copyrights have been applied as boilerplate by over-zealous lawyers, but our one data point – the response of the Municipal Demarcation Board – suggests that this is not the case.
As an exercise, I emailed each of these agencies requesting special permission for commercial rights (commercial is important here – in lieu of an actual open data policy, commercial rights give me the broadest possible scope for data use that I can hope for). I am eagerly awaiting their responses. You can follow the action on this spreadsheet as I update their policies as the replies come in.
Taking a step back, we should understand why this is important and not just a bunch of navel gazing. After all, we have a few really fantastic datasets “freely” available (free as in beer). The elections datasets (e.g. here and here) are unprecedented in their depth and detail. The City of Cape Town manages a very rich dataset on municipal valuations, and the national parliament hosts an intriguing database on gifts received by parliamentarians and other elected officials. However, aside from the fact that most of our data is not in machine-readable format (easily solved by web-scraping although this technology is itself encumbered by sticky legal questions), we are explicitly excluded from using this data for anything but personal use.
Open data has not yet percolated into the collective national consciousness. Some momentum has started to build through a number of niche groups of individuals seduced by the goings-on up north and even on the African continent. For this small sign of life to grow into a fully-fledged ecosystem of data consumers and producers, we need greater access to data under the stewardship of public entities. We need to be able to access that data for personal and for commercial use. We need to be able to download it and distribute derived products. And we should not have to ask for permission every time we do so.
Our post-apartheid constitution guarantees the right to access of information. It’s time that citizens of South Africa asserted that right.