Tag Archives: creative commons

The State of Open Data in Canada: The Year of the License

Open Data now an established fact in a growing list of Canadian cities. Vancouver, Toronto, Edmonton, Ottawa have established portals, Montreal, Calgary, Hamilton and some other cities are looking into launching their own and a few provinces are rumored to be exploring open data portals as well.

This is great news and a significant accomplishment. While at the national level Canadian is falling further behind leaders such as England, the United States, Australia and New Zealand, at the local and potentially provincial/state level, Canada could position itself as an international leader.

There is however, one main obstacle: our licenses.

The current challenge:

So far most Open Data portals adopt what has been termed the Vancouver License (it was created by Vancouver for its open data portal and has subsequently been adopted, with occasional minor changes, by virtually every other jurisdiction).

The Vancouver license, however, suffers from a number of significant defects. As someone who was involved in its creation these “bugs” were a necessary tradeoff. If we were looking for a perfect license that satisfied all stakeholders, I suspect we’d still be arguing about it and there’d be no open data or data portal with the Vancouver license. Today, thanks in part to the existence of these portals our politicians, policy makers and government lawyers understanding of this issue has expanded. This fact, in combination with a growing number of complaints about the licenses from non-profits and businesses interested in using open data, has fostered growing interest in adjusting it.

This is encouraging. And we must capitalize on the moment. I wish to be clear: until Canadian governments get the licensing issue right, Open Data cannot advance in this country. Open Data released by governments will not enjoy significant reuse undermining one of the main reasons for doing Open Data.

There are a few things everyone agrees a new license needs to cover. It must establish there is no warranty to the data and that the government cannot be held liable for any reuse. So let’s focus on the parts that governments most often get wrong.

Here, there are 3 things a new license needs to get right.

1. No Attribution

NASCAR-2-300x199

Nascar Jeff Gordon #24 by Dan Raustadt licensed CC-NC-ND

We need a license that does not require attribution. First, attribution gets messy fast – all those cities logos crammed in on a map, on a mobile phone? It’s fine when you are using data from one or two cities, but what happens when you start using data from 10 different governments, or 50? Pretty soon you’ll have NASCAR apps, that will look ugly and be unusable.

More importantly, the goal of open data isn’t to create free advertising for governments, its to support innovation and reuse. These are different goals and I think we agree on which one is more important.

Finally, what government is actually going to police this part of the license? Don’t demand what you aren’t going to enforce – and no government should waste precious resources by paying someone to scour the internet to find websites and apps that don’t attribute.

2. No Share alike

One area the Vancouver license falls down is on the share is in this clause:

If you distribute or provide access to these datasets to any other person, whether in original or modified form, you agree to include a copy of, or this Uniform Resource Locator (URL) for, these Terms of Use and to ensure they agree to and are bound by them but without introducing any further restrictions of any kind.

The last phrase is particularly problematic as it makes the Vancouver license “viral.” Any new data created through a mash up that involves data with the Vancouver license must also use the Vancouver license. This will pretty much eliminate any private sector use of the data since any new data set a company creates they will want to be able to license in manner that is appropriate to their business model. It also has a chilling effect on those who would like to use the data but would need to keep the resulting work private, or restricted to a limited group of people. Richard Weait has an unfortunately named blog post that provides an excellent example of this problem.

Any new license should not be viral so as to encourage a variety or reuses of any data.

3. Standardized

The whole point of Open Data is to encourage the reuse of a public asset. So anything a government does that impedes this reuse will hamper innovation and undermine the very purpose of the initiative. Indeed, the open data movement has, in large part, come to life because one traditional impediment to using data has disappeared: data can now usually be downloaded and available in open formats that anyone can use. The barriers to use have declined so more and more people are interested.

But the other barrier to re-use is legal. If licenses are not easily understood then individuals and businesses will not reuse data, even when it is easily downloadable from a government’s website. Building a businesses or a new non-profit activity on a public asset to which your rights are unclear is simply not viable for many organizations. This is why you want every government should want its license to be easily understood – lowering the barriers to access means making data downloadable and reducing the legal barriers.

Most importantly, it is also why it is ideal if there is a single license in the whole country, as this would significantly reduce transaction and legal costs for all players. This is why I’ve been championing Canada’s leading cities to adopt a single common license.

So, there are two ways of doing this.

The easiest is for Canadian governments to align themselves with several of the international standardized open data licenses that already exist. There are a variety out there. My preference is the Open Commons’ Public Domain Dedication and License (PDDL), although they also publish the Open Database License (ODC-ODbL) and the Attribution License (ODC-By). There is also Creative Commons CC-0 license which Creative Commons suggests to use for open data (I actually recommend against all of these except the PDDL for governments, but more on that later).

These licenses has several advantages.

First, standardized licenses are generally well understood. This means people don’t have to educate themselves on the specifics of dozens of different licenses.

Second, they are stable. Because these licenses are managed by independent authorities and many people use them, they evolve cautiously, and balance the interest of consumers and sharers of data or information.

Third, these licenses balance interests responsible. The creators of these licenses are thought through all the issues that pertain to open data and so give both consumers of data and distributors of data comfort in knowing that they have a licenses that will work.

A second option is for governments in Canada to align around a self-generated common license. Indeed, this is one area where the Federal Government could show (some presently lacking) leadership.(although GeoGratis does have a very good license). This, for example appears to be happening in the UK, where the national government has created an Open Government Licence.

My hope is that, before the year is out, jurisdictions in Canada began to move towards a common licenses, or begin adopting some standard licenses.

Specifically, it would be great to see various Canadian jurisdictions either:

a) Adopt the PDDL (like the City of Surrey, BC). There are some reference to European Data Rights in the PDDL but these have no meaning in Canada and should not be an obstacle – and may even reassure foreign consumers of Canadian data. The PDDL is the most open and forward looking license.

b) Adopt the UK government’s Open Government Licence. This license is the best created by any government to date (with the exemption of simple making the data public domain, which, of course, is far more ideal.

c) Use a modified version of the Geogratis license that adjusts the “3.0 PROTECTION AND ACKNOWLEDGEMENT OF SOURCE” clause to prevent the NASCAR effect from taking place.

What I hope does not happen is that:

a) More and more jurisdictions continue to use the Vancouver License. There are better options and it is an opportunity to launch an open data policy and leapfrog the current leaders in the space.

b) Jurisdictions adopt a Creative Commons license. Creative Commons was created to help license copyrighted material. Since data cannot be copyrighted, the use of creative commons risks confusing the public about the inherent rights they have to data. This is, in part, a philosophical argument, but it matters, especially for governments. We – and our governments especially – cannot allow people to begin to believe that data can be copyrighted.

c) There is no change to the current licenses being used, or a new license, like Open Database License (ODC-ODbL) which goes against the attributes described above, is adopted.

Let’s hope we make progress on this front in 2011.

Minister Moore and the Myth of Market Forces

Last week was a bad week for the government on the copyright front. The government recently tabled legislation to reform copyright and the man in charge of the file, Heritage Minister James Moore, gave a speech at the International Chamber of Commerce in which he decried those who questioned the bill as “radical extremists.” The comment was a none-too-veiled attack at people like University of Ottawa Professor Michael Geist who have championed for reasonable copyright reform and who, like many Canadians, are concerned about some aspects of the proposed bill.

Unfortunately for the Minister, things got worse from there.

First, the Minister denied making the comment in messages to two different individuals who inquired about it:

Still worse, the Minister got into a online debate with Cory Doctorow, a bestselling writer (he won the Ontario White Pine Award for best book last year and his current novel For the Win is on the Canadian bestseller lists) and the type of person whose interests the Heritage Minister is supposed to engage and advocate on behalf of, not get into fights with.

In a confusing 140 character back and forth that lasted a few minutes, the minister oddly defended Apple and insulted Google (I’ve captured the whole debate here thanks to the excellent people at bettween). But unnoticed in the debate is an astonishing fact: the Minister seems unaware of both the task at hand and the implications of the legislation.

The following innocuous tweet summed up his position:

Indeed, in the Minister’s 22 tweets in the conversation he uses the term “market forces” six times and the theme of “letting the market or consumers decide” is in over half his tweets.

I too believe that consumers should choose what they want. But if the Minister were a true free market advocate he wouldn’t believe in copyright reform. Indeed, he wouldn’t believe in copyright at all. In a true free market, there’d be no copyright legislation because the market would decide how to deal with intellectual property.

Copyright law exists in order to regulate and shape a market because we don’t think market forces work. In short, the Minister’s legislation is creating the marketplace. Normally I would celebrate his claims of being in favour of “letting consumers decide” since this legislation will determine what these choices will and won’t be. However, the Twitter debate should leave Canadians concerned since this legislation limits consumer choices long before products reach the shelves.

Indeed, as Doctorow points out, the proposed legislation actually kills concepts created by the marketplace – like Creative Commons – that give creators control over how their works can be shared and re-used:

But advocates like Cory Doctorow and Michael Geist aren’t just concerned about the Minister’s internal contradictions in defending his own legislation. They have practical concerns that the bill narrows the choice for both consumers and creators.

Specifically, they are concerned with the legislation’s handling of what are called “digital locks.” Digital locks are software embedded into a DVD of your favourite movie or a music file you buy from iTunes that prevents you from making a copy. Previously it was legal for you to make a backup copy of your favourite tape or CD, but with a digital lock, this not only becomes practically more difficult, it becomes illegal.

Cory Doctorow outlines his concerns with digital locks in this excellent blog post:

They [digital locks] transfer power to technology firms at the expense of copyright holders. The proposed Canadian rules on digital locks mirror the US version in that they ban breaking a digital lock for virtually any reason. So even if you’re trying to do something legal (say, ripping a CD to put it on your MP3 player), you’re still on the wrong side of the law if you break a digital lock to do it.

But it gets worse. Digital locks don’t just harm content consumers (the very people people Minister Moore says he is trying to provide with “choice”); they harm content creators even more:

Here’s what that means for creators: if Apple, or Microsoft, or Google, or TiVo, or any other tech company happens to sell my works with a digital lock, only they can give you permission to take the digital lock off. The person who created the work and the company that published it have no say in the matter.

So that’s Minister Moore’s version of “author’s rights” — any tech company that happens to load my books on their device or in their software ends up usurping my copyrights. I may have written the book, sweated over it, poured my heart into it — but all my rights are as nothing alongside the rights that Apple, Microsoft, Sony and the other DRM tech-giants get merely by assembling some electronics in a Chinese sweatshop.

That’s the “creativity” that the new Canadian copyright law rewards: writing an ebook reader, designing a tablet, building a phone. Those “creators” get more say in the destiny of Canadian artists’ copyrights than the artists themselves.

In short, the digital lock provisions reward neither consumers nor creators. Instead, they give the greatest rights and rewards to the one group of people in the equation whose rights are least important: distributors.

That a Heritage Minister doesn’t understand this is troubling. That he would accuse those who seek to point out this fact and raise awareness to it as “radical extremists” is scandalous. Canadians have entrusted in this person the responsibility for creating a marketplace that rewards creativity, content creation and innovation while protecting the rights of consumers. At the moment, we have a minister who shuts out the very two groups he claims to protect while wrapping himself in a false cloak of the “free market.” It is an ominous start for the debate over copyright reform and the minister has only himself to blame.

New Policy Journal: The Public Policy and Governance Review

Last week saw the launch of a new biannual online journal called The Public Policy and Governance Review. Started by students and faculty from universities across Canada the journal seeks to inject some new ideas and thoughts into the public policy sphere.

I would argue that it already has.

Check out this paragraph from its “About Us” page.

The Public Policy and Governance Review is in the business of promoting ideas and is not interested in proprietary rights. We believe that authors deserve credit for their work and that using any intellectual material warrants referencing, but other than that, we hope that the ideas published in the PPGR disseminate well beyond the confines of this website. As such and as a matter of principle, the Public Policy and Governance Review uses a less-restrictive licensing agreement for publication than traditional copyright. We publish as much of the PPGR as possible under a Creative Commons Attribution Non-Commercial No Derivative Works license. This is a licensing agreement that relaxes some of the restrictions associated with traditional copyright and allows our readers to distribute material more easily. It allows authors’ works to be freely reproduced for non-commercial purposes as long as the work is not modified and attribution is maintained.

Take note – these are Masters of Public Policy and Governance students and they have chosen to use a Creative Commons license – not copyright – for their journal. Note that they WANT others to re-post and comment on the material on blogs and other sites. This is a journal interested in using the most modern technology and legal tools to do what all journals start off wanting to do: initiating interesting conversation and spreading ideas.

This alone should make senior public servants take notice. If you are a senior public servant and you think debates over copyright don’t matter to you… your next hire (and ultimately, your successor) thinks differently.

Two additional asides:

First, for real copyright geeks that are wondering, yes I actually think they should have allowed attributed derivative works… since, well, all works are derivative works of something – nothing is completely original – but, well, one step at a time I suppose.

Second, before the launch of the first edition of the Public Policy and Governance Review the editors sat down and interviewed me on the future of the public service. You can read the interview here (pdf).

Lessig changes direction

For those who haven’t seen it yet Larry Lessig – champion extraordinaire of creative commons and free culture – is stepping back from his research and advocacy in these fields.(side note: if you haven’t read Free Culture or seen this presentation, please do so now!)

His work to date has led him to believe that the political system is fundamentally corrupt. In his own words:

“That the real problem here was (what I will call a “corruption” of) the political process. That our government can’t understand basic facts when strong interests have an interest in its misunderstanding.”

As a result, for the next ten years, he will be refocusing his energy on trying to figure out how to solve this riddle.

I think Lessig walks on water. So am pleased to hear he’ll be focusing his energy on one of the most significant problems in American politics and American history. Why History? Because Lessig is picking up on a theme American Progressives made central to their movement back in the 1890’s-1920’s. Progressives of that time were keen to limit the influence of special interests in American politics. In some regards they succeeded but, in many respects their key reforms such as the primary system and the creation of larger government bureaucracies actually benefited the very actors they sought to limit. As Larry himself admits, the problem may not be solvable.

But then, it’s a new era, and we have new tools. I’m hoping Lessig succeeds. He certainly has the passion and brains.