Today Eric Mill, Jonathan Gray, and I, with endorsements from the Sunlight Foundation and the Center for Democracy & Technology, are issuing guidance for federal agencies related to the recent open data memo from the White House (M-13-13).
(We plan to open our guidance to community discussion.
Stay tuned for where that discussion will take place.)
The May 9 Memorandum On Open Data Policy instructs agencies as follows:
“[If] information as it is collected or created … are made public there [must be] no restrictions on copying, publishing, distributing, transmitting, adapting, or otherwise using the information”
Our guidance provides pre-vetted language that federal agencies can affix to data to meet these goals. For instance, for most federal government datasets copyright protection is not available (see 17 USC § 105). We recommend including the following in a README file for these datasets:
As a work of the United States Government, this package is in the public domain within the United States. Additionally, [Agency Name] waives copyright and related rights in the work worldwide through the CC0 1.0 Universal public domain dedication (which can be found at http://creativecommons.org/publicdomain/zero/1.0/).
We also offer language for four other common situations, including when the data is created by a contractor (copyright protections may apply). Our guidance also explains our rationale:
- Open government data is often defined as “license-free.” License-free means copyright does not apply and there are no click-through end user agreements or other terms of use statements that bind the user after he/she has acquired the data.
- “Open licensing” is not the same thing. (Licenses presume copyright protections.)
- Data is more valuable when its copyright status is clear through an explicit statement.
- Foreign copyright may apply to any government data.
- The Creative Commons CC0 public domain dedication is a widely adopted legal tool allowing a creator to dedicate his/her work to the world-wide public domain.
Our guidance came out of a conversation also with Timothy Vollmer and Puneet Kishor. We thank them, the Sunlight policy team, Joe Hall at CDT, and a lawyer friend of mine for their thoughts.
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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