License proliferation

DRAFT as of November 21, 2013

Governments around the world are using standard, legally interoperable tools like Creative Commons licenses and public domain instruments to share a wide range of content they produce or fund the production of, including public sector information, scientific research, cultural content, and educational materials. This page explains some of the benefits to governments who choose to publish content under Creative Commons tools. It also discusses why governments should use existing standard tools instead of creating their own custom government license.

Assumption: Governments want to share public sector information and other digital resources

Disseminating useful information globally is aligned with the mission and work of most public sector bodies. Information and content that governments create or fund to create can be made maximally useful to the diverse communities they serve, helping citizens, other government agencies, civic institutions, and businesses across all sectors. It puts the money of governments where their mouth is, working to maximize the efficiency of public spending, encouraging access and reuse of publicly funded content, and promoting economic activity by communicate liberal reuse rights in advance.

Governments need to communicate legal rights in easy-to-understand fashion so that content will be reused

Materials like reports, photographs and videos released under the default All Rights Reserved copyright require the end user to ask permission in order to use the resource in the absence of some applicable exception or limitation under applicable copyright law. This framework means governments must dedicate resources to review and approve those requests. From the user perspective, the time and effort required to obtain the permission can be significant. Many government websites have Terms of Service (TOS) containing information about copyright or other intellectual property rights of content available on those sites. But posting government information online without explicit legal information about the rights available to users will have chilling effects on the resue of such information. Other governments have created Open Government Licenses that on the surface seem similar to Creative Commons licenses but which might contain slight variations or different conditions that destroy interoperability with standard public licenses like CC.

Why do governments create custom licenses?

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What are the consequences of license proliferation?

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Why should standard legal tools like CC licenses be used?

• CC licenses are the standard open content licenses, global
• machine-readable, allowing CC-licensed works to be easily discovered via search engines such as Google.
• creative commons is widely used around the world by governments and huge institutions
• CC is enforceable in a court of law - http://wiki.creativecommons.org/Case_Law
• cc is neutral body and trusted license steward

What does CC licenses provide to specifically address concerns of public sector bodies who may be thinking of developing their own license?

• http://epsiplatform.eu/content/topic-report-no-23-creative-commons-and-public-sector-information-flexible-tools-support-psi
• All are non-exclusive, irrevocable public licenses
• all licenses require attribution
• All permit reuse for at least noncommercial purposes in unmodified form
• licenses do not contract away any user rights (exceptions/limitations)
• CC licensor enters into a separate license agreement with each user
• License runs with the work, recipient may not apply technological measures or conditions that limit another recipients rights under the license, e.g. no DRM
• No warranties
• License terminates immediately upon breach
• Attribution: The attribution requirement is a feature of all Creative Commons licenses.[8] This requirement includes an attribution statement, by default recognition of the licensor as the copyright holder of the work, as well as the URL of the original work. The attribution requirement thus serves the dual purpose of ensuring desired credit to the party releasing the PSI, while helping to ensure integrity by requiring that the URL to the original resource is included.
• Retain copyright notice and provide licensing information: Re-users of PSI must keep intact any copyright notice attached to the work on all copies. Generally, a copyright notice consists of the copyright symbol (a “c” with a circle around it) the name of the author, and the date of publication. For example, if the work comes with the notice, “© 2011 UK Department of Health, Social Services and Public Safety,” then that information must be retained. Another static component of the CC framework is the requirement that license information be retained along with the PSI resource. These include the name of the license and the URL of the license, either as text and, where applicable, hyperlinked. For example, “© 2011 UK Department of Health, Social Services and Public Safety. Available under a Creative Commons Attribution 2.0 UK: England & Wales license.”
• Do not imply endorsement and identify changes: The “non-endorsement” clause in all CC licenses prohibits uses that suggest or imply that the licensor of the work—in this case, the public sector entity—in any way sponsors, supports or approves of the uses or adaptations of the work. Certain CC licenses permit making changes to works (those without the No Derivatives condition). In such cases, users must take reasonable steps to clearly label, demarcate or otherwise identify that changes were made to the original work. For example, “This is an audio adaptation of the 2011 Evaluation of Contagious Disease Vectors by UK Department of Health, Social Services and Public Safety, available under a Creative Commons Attribution 2.0 UK: England & Wales license.” All adaptations and collections of works offered under Creative Commons licenses must also explicitly state that they are not the original. A licensor may also ask that credit be removed from any specific adaptations or collections, while retaining the right of attribution elsewhere. Licensors can also assign different attribution statements to apply for different types of uses: for example, a licensor may require that users who modify the PSI or incorporate it into a collection must give attribution in a different manner than those who simply copy or redistribute it.
  • No warranties, no DRM: While Creative Commons alerts would-be licensors to make sure that they have all the necessary rights before applying CC licenses to works,[11] the licenses do not extend guarantees or warranties to licensees. In this way, public sector institutions releasing PSI do not increase their liability risk by granting re-use rights by using CC tools. In support for downstream re-use of PSI, it is already a feature of all CC licenses that users must not add any technical protection measures (digital rights management or “DRM”) to PSI offered under a CC license that would restrict others from using the work under the terms of the license.[12]

General arguments against creating your own license

• Confusion - Even lawyers do not enjoy trying to parse the terms and conditions of licenses and contracts. The more customized licenses and contracts that are out there, the more confusing and difficult reuse is for consumers who want to understand and comply with their obligations. This is the case even for customized licenses and contracts that are seemingly short and simple. Each individual set of terms and conditions warrants its own review, potentially requires legal assistance to fully comprehend, and ultimately does nothing to simplify license adoption or content reuse. In fact, license proliferation may even hinder reuse, undermining the very purpose of making data available.
• Apathy - As a response to the confusion stemming from license proliferation, consumers are likely to give up even attempting to comply with all of the licensing and contractual obligations from different data sources. Ironically, content providers that want more control (or at least customized control) end up getting less control than they might if they applied a standardized license that the general population is familiar with.
• Focus - Many custom licenses and contracts contain terms that attempt to control actions that are otherwise controlled by other bodies of law.
• Interoperability (or lack thereof) - When license or contract terms attempt to control the licensing of adaptations or mashups, the licensed data or content cannot be remixed with content released under different licensing schemes. Even where licenses do not include the ShareAlike condition or similar restrictions, any difference in license conditions can make remixing content more difficult. It requires remixers to either mark all content and its related license (which can be extremely onerous and even impossible in some situations), or it requires those using the remix to comply with all of the conditions of every single custom license governing any portion of the content. The resulting complexity leads to confusion and apathy as explained above.
• Resource drain - Each entity that creates its own customized license or contract sacrifices significant resources on drafting, vetting, and explaining the custom terms and conditions. The use of standard licenses like CC licenses alleviates this problem because the ready-to-use legal tools are already vetted by a team of international experts and widely recognized and understood worldwide. CC also has a wealth of explanatory and educational materials about their legal tools available.
• Branding still possible - There is a misperception that adopting standardized tools like CC licenses requires adopters to sacrifice their own branding mechanisms. There are a variety of ways for governments and other entities to adopt CC licenses, including by creating a customized deed or licensing framework to overlay the standard CC license text.

What will CC 4.0 do different to increase interoperability?

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No license can address bad actors

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Common conditions for ensuring interoperability among licenses

• poison clauses
• example of OGL removing non-standard clauses in v2.0

What custom licenses are out there?

• http://wiki.creativecommons.org/Custom_Licenses

Forget about licensing! What about public domain?

• CC0
• stuff from the LAPSI paper

Other information

• http://joi.ito.com/weblog/2010/07/27/the-issue-of-li.html
• http://opendefinition.org/licenses/
• http://theodi.org/blog/the-proliferation-of-open-government-licences
• work of LAPSI group
• work of OD advisory group
• http://www.govloop.com/profiles/blogs/ontario-s-open-data-policy-the-good-the-bad-the-ugly-and-the
• https://creativecommons.org/compatiblelicenses
• http://creativecommons.ca/en/open-government-canada-licence
• http://wiki.creativecommons.org/4.0/Compatibility
• http://www.slideshare.net/mlinksva/towards-license-interoperability-patterns-of-sustainable-sharing-policy
• http://gondwanaland.com/mlog/2013/11/24/ugl/