The Open Government Licence and What It Means for You

Written by Kent on 21st December 2012

The federal government recently released a draft version of their long-expected Open Government Licence -- Canada (OGL-C), which will soon apply all government data available through the federal data portal at ">data.gc.ca. This licence includes some welcome improvements over the existing one, including some notable steps to align it with Creative Commons licences and the Creative Commons vision of openness. There remain a few minor flaws which should give users pause, but the ongoing public consultation process will hopefully bring these to light and shed them away.

Most importantly, the federal government managed to get the process right with this licence. The status quo for municipal, provincial, and federal licences in Canada has unfortunately been for each government's legal department to sit down, cobble together a licence from existing ones, then add a few personal touches that the lawyers feel are necessary in each government's best risk-adverse interest. The result has been a disaster. We have more than twenty different government licenses in Canada, many of which are not open or free. Worse, the licences are often not compatible with one another, nor with international licences such as Creative Commons. Would-be open content creators have had to stop or close-off their projects due to legal technicalities in the terms of these allegedly-open licences.

In contrast, the Government of Canada reached out to other governments this time around, inviting them to participate in the drafting process. Highlighting the government's goal of a single government licence, Minister Clement tweeted last week: "my mission: common #opengov licence for municipal, pronincial, territorial, and federal data". Indeed, with several Canadian governments such as B.C., Ontario, and the City of Toronto already adopting similar licences -- all based on the U.K. Open Government Licence -- it seems likely that at least some of these others will make the move to a more unified, pan-Canadian government licence.

Of course, for those hoping to see a pan-international licence, this wish will have to wait in respect of Canadian government data. Although many governments around the world have already chosen Creative Commons for our internationally-recognizable and understandable licence terms, the Government of Canada did not opt for this approach.

Failing adoption of a Creative Commons licence, the next-best solution is always to ensure compatibility with Creative Commons. This allows CC users to still pull-in and remix the content within their CC-licensed creations. At Creative Commons Canada, the biggest question remaining for us is whether the draft OGL-C licence achieves this compatibility.

The good news is that the Honourable Minister Clement says it does. He assures us that "the proposed licence is designed compatible with the UK and creative commons." However, we would hesitate to tell Canadian Creative Commons users that they have a carte blanche licence to remix federal government data with Creative Commons content. We have some concerns that we would like to see addressed and clarified in the final version of the licence.

Foremost, it is not obvious how the licence achieves compatability. In a report on compatibility with Creative Commons, CIPPIC recently recommended that governments should permit sub-licensing under Creative Commons licences in order to make their licences compatible. A sublicence-under-CC clause is, by far, the simplest option for users. It allows them to simply release a remixed work under a Creative Commons licence alone, rather than precipitate the need to track and define what part of their work falls under which licence (this can get particularly tedious as a work moves downstream to different hands, or where a creator remixes content from many different sources).

Commendably, the OGL-C draft licence does include a right to sublicence. This may be a response to CIPPIC's recommendation, as this is a new clause not found in the original U.K. version. However, the term suffers from a lack of clarity. The clause does not specifically name Creative Commons, but rather simply grants a general right to sublicence. The law is clear that such a term allows you re-licence your rights under a different licence; however, the law is less clear on what happens to obligations under the original licence. Are the obligations contract-like, only applying to you? Or do you have to maintain them in your downstream licence? To clear up such confusion, we would like to see the final licence grant an explicit right to sublicence under a Creative Commons Attribution licence.

The alternative (and less desirable) option for compatibility is to ensure that all licence terms align with Creative Commons, such that no terms conflict when a user releases remixed content under a Creative Content licence. If this is the intention of the OGL-C, it generally does a good job: in most cases, it simply excludes content such as personal information and third party rights from the licence, rather than creating any positive obligations. However, as Herb Lainchbury points out, the licence fails in its overall practice of avoiding obligations on one key term to "ensure that you do not use the Information in a way that suggests any official status or that the Information Provider endorses you or your use of the Information." Although Creative Commons licences include a similar obligation, the wording is not identical and difficulties could arise. If the government is really not satisfied with the strong protections that the Trade-marks Act affords them for their official marks, they would do well to move this clause from the obligations section to the exemptions sections.

Our final concern involves the fact that the OGL-C purports to licence a "database right". The Government of Canada actually has no right to licence a "database right", as the crown does not itself own any such right. In Canada, as long as a database does not involve "originality" on the part of an author, or where the database is entirely fact-based, then it vests in the public domain -- and is therefore compatible with all Creative Commons licences. The government cannot restrict the use of such material a licence.

Overall, the OGL-C licence is on track to become compatible with Creative Commons with just a few tweaks to clarify its terms and bring legal certainty to users. It is shaping up to become an excellent licence, as well as an important stepping stone until such time as Canadian governments fully open up to the internationally-inclusive Creative Commons approach.

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