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Re: CC Version 4.0 (and government data)

From: Anne Fitzgerald <am.fitzgerald@qut.edu.au>
Date: Wed, 14 Dec 2011 18:00:55 +1000
To: "public-egov-ig@w3.org" <public-egov-ig@w3.org>, "public-lod@w3.org" <public-lod@w3.org>
CC: "chris@codex.net.au" <chris@codex.net.au>
Message-ID: <7063AB402ECC7C4FB6E0F5FD8499C51E221A07918F@QUTEXMBX01.qut.edu.au>

I thought it might be useful to post some clarifications on the points raised by Chris Beer in comments posted on 12 December 2011.


(1)The version 3.0 CC Australia licences ARE suitable for use on copyright-protected datasets, data compilations and databases.  If the dataset is not copyright-protected, the CC licences (which are based on the rights held by copyright owners) are unsuitable.  While copyright does not apply to mere facts or unoriginal data collections, there are many datasets, data compilations and databases that will qualify for copyright under the tests set out by the courts in cases decided in 2010 and 2011.  A summary of the position is contained in my chapter (“Copyright”) in the recently-published book “Australian Media Law” 4th ed, Thomson Reuters, November 2011 or in our Guide “CC and Government” – available here: http://eprints.qut.edu.au/38364/



(2)CC licences are in fact being widely used on datasets and data collections by government agencies and educational institutions around Australia, ranging from the Australian Bureau of Statistics (www.abs.gov.au<http://www.abs.gov.au/>) and Geoscience Australia (www.ga.gov.au<http://www.ga.gov.au/>) at the federal level, through to the Queensland Police Service (http://www.police.qld.gov.au/copyright.htm) and Brisbane City Council (http://data.brisbane.qld.gov.au/). The most widely used licence for data is CC BY. Importantly, CC 0 licences are not used in Australia as they are legally ineffective;  government agencies (including the Brisbane City Council) are using CC BY as the default licensing position.



(3)Based on wide-ranging consultations and feedback over the last several years, there is little interest in other, more complex licences such as OdbL..  Reasons for this are that Australia does not recognise sui generis database rights and there is no discernible advocacy in favour of extending statutory database rights to factual data collections that are not sufficiently original to warrant copyright protection.  In the absence of a statutory database right, protection of non-copyright data collections would require parties to enter into a contractual arrangement to firstly, describe their respective rights and obligations and, secondly, to set out the consequences of breach of those obligations.



(4)The Australian legal position with respect to copyright in datasets, data compilations and databases is appropriately dealt with in the CC version 3.0 Australia licences.  The revisions in version 4.0 are primarily directed at addressing the situation in Europe (and a few other countries, such as Korea) which recognise sui generis database rights; version 3.0 is based on copyright interests but does not deal with the licensing of database rights that may exist in the same material to which the CC licence is applied.



(5)There has been little interest in Australia in the development of licences based on rights (such as sui generis database rights) that do not exist under Australian law.  As the Creative Commons licences (up to and including version 3.0) have been “ported” so they are effective under the laws existing in individual jurisdictions (countries) where they are applied, unless and until a truly “international” licence is developed it is inappropriate to include mention – and even more inappropriate to purport to grant a licence - of rights that are not recognised at all under that country’s laws.  In countries which do recognise sui generis database rights there has, of course, been extensive consideration of the rights and their operation has been examined in several important cases in the UK and Europe.



(6)There is now considerable experience with using CC licences in the Australian public sector as well as in education and research.  This is increasingly the case worldwide as national and local authorities develop data.gov portals.  Some examples of government and educational/research use of CC licences can be found here: http://creativecommons.org.au/sectors/government; see also the examples in our various presentations here: http://www.aupsi.org/presentations/ and here: http://www.aupsi.org/policy/nationalworkshop.jsp



(7)Importantly, the recommendations of the Government 2.0 Taskforce in its report “Engage: Getting on with Government 2.0” (December 2009) (http://www.finance.gov.au/publications/gov20taskforcereport/index.html) that the CC BY standard should be the default licence applied to all public sector information was formally accepted by the Australian federal government in 2010 (see http://www.finance.gov.au/publications/govresponse20report/index.html ) and has been given effect in the Australian government’s revised Intellectual Property Principles (October 2010) (http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyright_CommonwealthCopyrightAdministration_StatementofIPPrinciplesforAustralianGovernmentAgencies ).  While federal government agencies may – and do – adopt more restrictive licences in certain circumstances, the reality is that CC BY is the default and, where more restrictive licences are applied, they are typically one of the other licences in the CC version 3.0 suite. An example of this is the Australian Parliament House website – the site and all contents are, unless otherwise indicated, licensed under the CC BY NC ND licence: http://www.aph.gov.au/

Please do not hesitate to contact me for further information.  Our team, based at QUT Law Faculty in Brisbane, introduced CC into Australia and we have worked closely with government, education and research sectors, as well as the creative industries since 2005 to develop models for use of CC.  We have consulted widely throughout Australia over the last 2 years to obtain a picture of who is using CC and to better understand barriers to the implementation of the licences.

Regards
Anne

Professor Anne Fitzgerald
QUT Law Faculty
Am.fitzgerald@qut.edu.au<mailto:Am.fitzgerald@qut.edu.au>




Begin forwarded message:

Resent-From: public-egov-ig@w3.org<mailto:public-egov-ig@w3.org>
From: Chris Beer <chris@codex.net.au<mailto:chris@codex.net.au>>
Subject: Fwd: Re: CC Version 4.0 (and government data)
Date: December 11, 2011 4:20:35 PM EST
To: public-egov-ig@w3.org<mailto:public-egov-ig@w3.org>, public-lod@w3.org<mailto:public-lod@w3.org>

This is of immediate interest here in Australia where at a very recent (last week) federal level meeting concerning a WoG licencing framework I raised with general acknowledgement from others that CC 3.0 was unsuitable for data, and that CC proscribed as much.

My suggestion then was that the ODbL should be actively considered as the suitable 3rd critical part of an open  licence triumvirate formed by CC for objects, GPL/BSD for software, and ODbL for object containers, noting for instance the most common scenario wherein the displayed results on a query is considered a derivative work where database or dataset is CC licenced.

This new development CC 4.0 does appear to change things. My questions to the list are

a) how much has been invested by Gov / Academia / Orgs anywhere or at any level in ODbL

b)  how much has been invested by Gov / Academia / Orgs anywhere or at any level in CC with datasets, databases or datacubes and has suitability been an issue

and

c) to anyone's knowledge, has CC =< 3.0 on data, datasets/bases/cubes been tested in court in a real copyright/left case (pref with Gov as plaintiff)

Cheers

Chris Beer
Australia

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