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Tauberer et al publish best practices for making government data “license-free”

Back in May, we posted about the Obama Administration’s executive order on open government data and cited Govtrack.us‘s Josh Tauberer’s analysis of the Executive Order as missing the mark and being confused — if not downright misleading — about “open licensing.”

Now Tauberer, along with Eric Mill, Jonathan Gray, Ellen Miller, and Joseph Lorenzo Hall — in discussion with others like Gavin Baker, Timothy Vollmer and Puneet Kishor and with endorsements from the Sunlight Foundation and the Center for Democracy & Technology — have written their guidance on how Federal agencies can make their data “license-free.” Their guidance includes language for Federal agencies to affix to their data publications so that they meet the criteria of a “license-free” principle.

The wording of Tauberer et al’s guidance clearly states that government information, including government-published data, clearly falls within the public domain. But what’s even better is that their guidance includes suggested wording a) putting government data in the public domain internationally; and b) having contractors waive copyright and related rights in the work worldwide through the CC0 1.0 Universal public domain dedication.

As I wrote previously, the memorandum was confusing, if not misleading, by asking agencies to implement the “no restrictions” policy using “open licensing.” The term “open licensing” was improper for two reasons:

First, you can’t license what you don’t own. Most federal government data is in the public domain, and this data is born “license-free.” The memorandum should have been clearer by explicitly directing the policy toward data created in the performance of a contract, which is often subject to copyright protection. (h/t Gavin Baker for the concise way to word that.)

Second, “open licensing” does not mean the same thing as “no restrictions.” Almost every standard open license is “some rights reserved,” meaning some privileges are granted but other rights in the work are retained. Copyright protection is precisely how the terms of these licenses are enforced. The GPL’s so-called virality clause and Creative Commons’s attribution licenses rely on the threat of a copyright infringement lawsuit to enforce their requirements for reuse.

If the memorandum really meant “no restrictions” the best way to accomplish that is not through an open license but rather the CC0 public domain dedication, as we’ve used in our guidance.

What’s the bottom line? Our guidance does not say that all government data must be open and license-free, nor do we attempt to say which government data should be open and license-free. We recognize the practicalities of contract work. However we strongly suggest that license-free become the norm, and we are providing tools for agencies to achieve that.

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2 Comments

  1. Bonnie Klein says:

    Applying the Creative Commons Zero (CC0) Public Dedication to U.S. Government information does nothing to insure or preserve public access to and free use of these works beyond the original work. We would be better served by a unique “U.S. Government” identifier that legally defines the scope of application and includes the requirement that the identifier be carried forward on all subsequent uses, copies and extracts.

    “Once a copyrighted work… passes into the public domain, anyone in the public may do anything they want with the work, with or without attribution to the author.” (See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S.23 (2003).)

    The adage “consider the source” applies especially to government information. There are and always have been resellers and repackagers of government information who have profited by knowing where and how to get it and then supplying it to others, including back to the government. Frequently the third-party supplier does not credit the originating government source and imposes restrictive terms and conditions of use where none exist. Duped, we pay again and again for information produced with our tax dollars that is available to everyone and anyone for free from the government sponsor. Worse, we curtail our reuse of the material thinking it is private property.

    Also see:
    1) “Improving Access to Government Data on the Web” (September 15, 2009) By Diane Mueller http://www.webcpa.com/news/Improving-Access-Government-Data-Web-51701-1.html …” the accuracy with which data is interpreted is jeopardized with each reuse. Without a link back to the source, the authenticity of the content is no longer discoverable The administration’s goal should be to ensure that the public can collaborate on the analysis and dissemination of public information across the web in a manner that can be trusted, authenticated and redistributed without imposing a cost burden on the consumers or the producers of that information.”

    2) Copyright and Provenance: Some Practical Problems” (2007) by John Mark Ockerbloom,. http://repository.upenn.edu/cgi/viewcontent.cgi?article=1051&context=library_papers&sei-redir=1#search=“Copyright+and+Provenance+some+practical+problems
    “Copyright clearance is an increasingly complex and expensive impediment to the digitization and reuse of information. Clearing copyright issues in a reliable and cost-effective manner for works created in the last 100 years can involve establishing complex provenance chains for the works, their copyrights, and their licenses.”

  2. jrjacobs says:

    Great idea Bonnie. This is conceptually similar to the GNU public license for software where the software’s source code may be viewed and edited as long as any additions are fed back in to the code base with the same license.

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