Open Data and the Law: ISWC 2009

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 Monday, 26 October 2009 1

Monday, 26 October 2009 2

Open Knowledge Foundation http://www.okfn.org Monday, 26 October 2009 3

We promote open knowledge Monday, 26 October 2009 4

http://www.okfn.org/projects Monday, 26 October 2009 5

Key points: 1. Legal rights can cover data & databases 2. Legal rights require legal solutions 3. Legal solutions for open data exist Monday, 26 October 2009 11

A few questions before we get started.... Monday, 26 October 2009 12

What do you mean by data? Monday, 26 October 2009 13

Have you ever used an open source license? Monday, 26 October 2009 14

Have you ever used a CC license? Monday, 26 October 2009 15

Key points: 1. Legal rights can cover data & databases 2. Legal rights require legal solutions 3. Legal solutions for open data exist Monday, 26 October 2009 16

•Why we care – (importance of data) •Basics of IP •How copyright applies to databases Monday, 26 October 2009 17

Search Monday, 26 October 2009 18

You’re low on Milk It’s already been ordered ...and I ordered skim this time Monday, 26 October 2009 19

Linked Data A2K Science Monday, 26 October 2009 22

More data allows cooler stuff Monday, 26 October 2009 23

(contract) IP and other rights Monday, 26 October 2009 24

trademarks ®™ Monday, 26 October 2009 25

trade secrets Monday, 26 October 2009 26

patent Monday, 26 October 2009 27

pipe smoking detective who likes to use reason Monday, 26 October 2009 29

Copyright: original works ﬁxed in a tangible medium of expression Monday, 26 October 2009 31

original as not copied Monday, 26 October 2009 32

“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). Monday, 26 October 2009 34

facts as not original Monday, 26 October 2009 35

but some jurisdictions lean towards a “sweat of the brow” approach for originality i.e., they use copyright law to protect the effort that went into collecting those facts Monday, 26 October 2009 36

Copyright ﬂows from the pen to the paper Monday, 26 October 2009 40

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. Monday, 26 October 2009 41

No access without (permission culture) permission Monday, 26 October 2009 42

1. Notice not required 2. No registration required 3. No single international Copyright copyright system Mythbusting 4. Not absolute - there are exceptions (Fair use) 5. Noncommercial use isn’t a free pass Monday, 26 October 2009 45

3 key points about © Monday, 26 October 2009 46

Films Performances Music letters to gran Web sites Sculpture Buildings databases Novels Photographs Plays Dance Computer Programs broadcasts Monday, 26 October 2009 47

Facts Monday, 26 October 2009 48

Licensing giving permission Monday, 26 October 2009 50

1. Covers a lot of stuff 2. Doesn’t cover facts, but Copyright collections of facts gets key points tricky 3. Licensing is how you get permission Monday, 26 October 2009 51

Crash course in IP and DB’s Monday, 26 October 2009 52

Privacy vs Property Monday, 26 October 2009 53

(contract) IP and Monday, 26 October 2009 54

database: a collection of material arranged in a systematic or methodical way and individually accessible by electronic or other means Monday, 26 October 2009 55

1. Content inside the © database 2. Database itself 3. Database software Monday, 26 October 2009 61

Database Rights Monday, 26 October 2009 62

1. EU Directive (and EU only) Database Rights 2. Automatic protection 3. Overlap w/ © Monday, 26 October 2009 63

1. Content inside the Database database Rights 2. Database itself Monday, 26 October 2009 66

contract Monday, 26 October 2009 67

contract Monday, 26 October 2009 68

Other IP rights Monday, 26 October 2009 69

TPMs – legal protection for digital locks on ©ontent Trademarks – like any other product Trade secret – like any other company information Monday, 26 October 2009 71

Key points: 1. Legal rights can cover data & databases (& why we care) 2. Legal rights require legal solutions 3. Legal solutions for open data exist Monday, 26 October 2009 72

Importance of data + Legal rights over data = Need for a legal solution Monday, 26 October 2009 74

• automatic © • worldwide • covers databases • life+70 • no notice required Monday, 26 October 2009 75

Options 1. Ask for a licence. 2. Use under an exception (fair use or fair dealing). 3. Infringe 4. Use something else Monday, 26 October 2009 80

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 Monday, 26 October 2009 81

1.What is “open”? 2.What is open data? Baseline 3.What is Share-Alike? 4.What is open licensing Monday, 26 October 2009 83

Open Deﬁned opendeﬁnition.org Monday, 26 October 2009 84

• Use • Reuse “open” • Redistribute • Attribution & Share Alike okay http://www.opendeﬁnition.org/buttons Monday, 26 October 2009 85

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. Monday, 26 October 2009 86

Share Alike Monday, 26 October 2009 89

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 noncommercial 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. Monday, 26 October 2009 94

Open licensing How you use it... Monday, 26 October 2009 97

Consumer of content Finding stuff (software, content, databases) Monday, 26 October 2009 98

• making your IP management easier • lowering your risks Monday, 26 October 2009 99

Producer of content Releasing your stuff Monday, 26 October 2009 100

data (and remix) Pirates or partners? You decide... Monday, 26 October 2009 101

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) Monday, 26 October 2009 102

• open data commons origins • how the open data commons tools work Monday, 26 October 2009 104

OpenDataCommons - origins Monday, 26 October 2009 105

Talis http://www.talis.com/ Monday, 26 October 2009 106

Importance of data + Legal rights over data = Need for a legal solution Monday, 26 October 2009 107

OpenDataCommons.org Legal tools for Open Data 2007 → Talis → Open Knowledge Foundation Monday, 26 October 2009 108

Why start a licensing project? Monday, 26 October 2009 109

? Software Content Data Monday, 26 October 2009 111

Open Data Diffusion of Innovations / Technology Adoption Curve Monday, 26 October 2009 112

GPL, FSF, OSI, BSD... = software Creative Commons... = content Data is different from software and content both legally and in what you do with it Monday, 26 October 2009 113

• No Public Domain tool for Open databases existed Data • Demand for a share alike Commons database license & CC seen as poor ﬁt Monday, 26 October 2009 114

Why CC-BY-SA is a poor ﬁt. Monday, 26 October 2009 115

CC-BY-SA (2.0 Generic/US) http://creativecommons.org/licenses/by-sa/2.0/legalcode Monday, 26 October 2009 116

• Not all relevant rights licensed Legal • Not consistent b/w international licenses Monday, 26 October 2009 117

• Attribution trigger broad and unclear • Share Alike unclear when Practical combining with other work (collective works) • Doesn’t address SaaS Monday, 26 October 2009 118

“Creative Commons does not recommend using Creative Commons licenses for informational databases” Source: http://sciencecommons.org/resources/faq/databases Monday, 26 October 2009 119

Open Data Commons: Legal tools Monday, 26 October 2009 120

Open Data Commons Legal tools: • Public Domain Dedication and License (PDDL) • Open Database License (ODbL) • Database Contents License (DbCL) Monday, 26 October 2009 121

Who is using and proposing to use Open Data Commons tools... Monday, 26 October 2009 122

Common approach to ODC tools Monday, 26 October 2009 123

Worldwide application Monday, 26 October 2009 124

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 Human readable license 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. Monday, 26 October 2009 125

Open Database License (ODbL) Monday, 26 October 2009 126

ODbL = <http://www.opendatacommons.org/licenses/odbl/> Monday, 26 October 2009 127

(contract) (contract) ODbL trifecta Monday, 26 October 2009 128

1. Database (ODbL) Elements 2. Contents 3. “Produced Work” (ODbL) Monday, 26 October 2009 132

Database Contents License (DbCL) Monday, 26 October 2009 133

Contents (the “data”) can be anything: facts, ages, dates, sonnets, images, text observation notes, IP addresses, postal addresses haiku, tweets, telephone numbers, income level, NI number survey responses, music lyrics, ﬁlm cast listings, patent numbers, ﬁling dates, marital status, racial information, education level and on and on and on... Monday, 26 October 2009 134

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) Monday, 26 October 2009 135

1. Database – ODbL Elements 2. Contents – DbCL 3. “Produced Work” – ODbL +DbCL Monday, 26 October 2009 137

Public Domain Dedication & License (PDDL) Monday, 26 October 2009 139

Protocol for Implementing Open Access Data http://sciencecommons.org/projects/publishing/open-access-data-protocol/ Monday, 26 October 2009 140

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. Monday, 26 October 2009 141

PDDL http://www.opendatacommons.org/licenses/pddl/1.0/ Monday, 26 October 2009 142

PDDL + Community Norms PDDL http://www.opendatacommons.org/norms/ Monday, 26 October 2009 144

<http://www.legalbluebook.com> Monday, 26 October 2009 147

Closing thoughts Monday, 26 October 2009 149

Identify the risks What 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. Monday, 26 October 2009 151

OpenDataCommons Protocol for implementing open access data ODbL PDDL Monday, 26 October 2009 152

Collecting data is hard... Monday, 26 October 2009 153

Thank you to Talis, OSM community, ODC-discuss list, commenters, Science Commons, & OKFN for feedback and support! Monday, 26 October 2009 155

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. Monday, 26 October 2009 156

Thanks! www.OpenDataCommons.org www.okfn.org/support Jordan S. Hatcher e: webcontact ]AT[ opencontentlawyer D O T com w: www.jordanhatcher.com All original and CC-BY-SA derivative works licensed under a Creative Commons Attribution-Share Alike 2.5 UK: Scotland Licence http://creativecommons.org/licenses/by-sa/2.5/scotland/ Monday, 26 October 2009 157

Questions? Monday, 26 October 2009 158

Richard Stallman (public domain) http://commons.wikimedia.org/wiki/File:Portrait_-_Denmark_DTU_2007-3-31.jpg Larry Lessig – Lessig portrait by Notwist CC-BY 2.0 http://commons.wikimedia.org/wiki/File:Lessig_portrait.jpg Crop of Lawrence Lessig freesouls hero.jpg http://commons.wikimedia.org/wiki/File:Lawrence_Lessig_freesouls_hero.jpg Unlocked "open access" symbol" from PLOS http://www.plos.org/ CC-BY-SA 3.0 http://en.wikipedia.org/wiki/File:Open_Access_logo_PLoS_white.svg Spacelab, Laboratory Module by cliff1066 CC-BY 2.0 http://www.flickr.com/photos/nostri-imago/2911393890/ The original Tux, the official Linux mascot created by Larry Ewing in 1996: Permission to use and/or modify this image is granted provided you acknowledge lewing@isc.tamu.edu and The GIMP if someone asks. two hats talking to each other by sleepyneko CC-BY-SA http://flickr.com/photos/ejchang/558997184/ Copyleft symbol Public domain http://commons.wikimedia.org/wiki/File:Copyleft.svg Edinburgh Map Map data CC-BY-SA Open Street Map and contributors Desert Moon Rising by Josh Sommers CC-BY http://www.flickr.com/photos/joshsommers/935470210/ OpenStreetMap - Coastlines by PeterIto CC-BY-SA http://www.flickr.com/photos/peterito/3120509512/ 097/365: Sunken Treasures by dotbenjamin CC-BY-SA http://www.flickr.com/photos/dotbenjamin/2862947932/ Europe by Albertane CC-BY-SA http://www.flickr.com/photos/albertane/120077777/ Monday, 26 October 2009 159

Long tail.svg (Public Domain) http://en.wikipedia.org/wiki/File:Long_tail.svg Picture by Hay Kranen http://www.haykranen.com/ Keys 1 CC-BY by ~Brenda Starr~ http://www.flickr.com/photos/brenda-starr/3466560105/ old refrigerator CC-BY by G & A Sattler http://www.flickr.com/photos/9512074@N02/2149128060/ Earth from the International Space Station Image Science and Analysis Laboratory, NASA-Johnson Space Center. "The Gateway to Astronaut Photography of Earth." <http:// eol.jsc.nasa.gov/scripts/sseop/photo.pl?mission=ISS007&roll=E&frame=7304> Catalogue cards CC-BY by by Deborah Fitchett http://www.flickr.com/photos/deborahfitchett/2970373235/ Linked Data diagram CC-BY-SA http://esw.w3.org/topic/SweoIG/TaskForces/CommunityProjects/LinkingOpenData#dbpedia-lod-cloud IMGP0809 CC-BY by mikefats http://www.flickr.com/photos/mikefats/11545170/ (shelf of products) Safe lock CC-BY by Marcin Wichary http://www.flickr.com/photos/mwichary/2647981973/ Lume (lightbulb) CC-BY by johnmarchan http://www.flickr.com/photos/johnmarchan/3877166306/ Monday, 26 October 2009 160

Lightbulb CC-BY by James Bowe http://www.flickr.com/photos/jamesrbowe/3338776771/ (lightbulb big) Sherlock Holmes Public Domain http://commons.wikimedia.org/wiki/File:SherlockHolmes.jpg dan mixtape CC-BY-SA by jm3 http://www.flickr.com/photos/jm3/355212032/ Lake Havasu City Phonebook CC-BY by .Larry Page http://www.flickr.com/photos/igboo/3235239775/ Sponsored by Amdocs - Yellow print directory CC-BY-SA by by avlxyz http://www.flickr.com/photos/avlxyz/3082373502/ Walt Disney's grave, Forest Lawn, Glendale, Los Angeles, CA.JPG CC-BY-SA by gruntzooki (cory doctorow) http://www.flickr.com/photos/doctorow/1149004046/ "You're Going to Need a Hard Hat to Live There" CC-BY-SA by Rob Shenk http://www.flickr.com/photos/rcsj/3194835693/ Handshake CC-BY-SA by Aidan Jones http://www.flickr.com/photos/aidan_jones/3575000735/ (hand drawing) PlaGiaRisM by Digirebelle® CC-BY http://www.flickr.com/photos/ad4evr/2128607/ Monday, 26 October 2009 161

Question mark and arrow CC-BY laurkgibbs http://www.flickr.com/photos/38299630@N05/3635356091/ Court Gavel CC-BY-SA by Jonathunder http://commons.wikimedia.org/wiki/User:Jonathunder http://en.wikipedia.org/wiki/File:CourtGavel.JPG The Elect. Not the elected. CC-BY-SA by Steve Punter http://www.flickr.com/photos/spunter/2907555506/ Bibilios.net screenshot See https://biblios.net/ An empty tin can.by Sun Ladder, CC-BY-SA http://commons.wikimedia.org/wiki/File:Empty_tin_can2009-01-19.jpg Ground Crew: KellyK CC-BY-SA (cropped) http://www.flickr.com/photos/elasticsoul/162457691/ Don’t Panic Badge - CC-BY by JL2003 and at http://www.flickr.com/photos/brighton/2153602543/ (button from 1984 computer game version of Hitchhiker’s Guide to the Galaxy No Unauthorised Access sign Health and Safety Executive (UK) http://www.hse.gov.uk/workplacetransport/images/prohibition-unauth-2.gif The Bluebook cover - The Bluebook is © The Columbia Law Review Association Inc., The Harvard Law Review Association, the University of Pennsylvania Law Review, The Yale Law Journal Company, Inc, Source: <http://en.wikipedia.org/wiki/File:The_Bluebook_18th_ed_Cover.gif> All other trademarks are copyright / trademark their respective owners. Some works may appear here under exceptions or exclusions to copyright and trademark law such as fair use / fair dealing and are not covered by the CC license over this work and these exclusions or exceptions may not apply to you. Monday, 26 October 2009 162

Thanks! www.OpenDataCommons.org www.okfn.org/support Jordan S. Hatcher e: webcontact ]AT[ opencontentlawyer D O T com w: www.jordanhatcher.com All original and CC-BY-SA derivative works licensed under a Creative Commons Attribution-Share Alike 2.5 UK: Scotland Licence http://creativecommons.org/licenses/by-sa/2.5/scotland/ Monday, 26 October 2009 163

Questions? Monday, 26 October 2009 164

Open Data and the Law: ISWC 2009

by Jordan Hatcher on Jul 10, 2010

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Open Data and the Law: ISWC 2009 — Presentation Transcript