In response to the Government of Canada's call for comments on the Proposed Open Government Licence Agreement, Creative Commons Canada submitted the feedback posted below. The government plans to apply this licence to many of the hundreds of thousands of copyrighted works that it shares with the Canadian public. We feel it is important that the government ensures its licence is "Creative Commons friendly" so that everyone may enjoy these public materials and freely remix them with existing Creative Commons works. Our commentary adds our voice to other excellent feedback from the Open Definition Advisory Council, Herb Lainchbury and Teresa Scassa.
We are pleased at the opportunity toprovide feedback on the proposed Open Government Licence – Canada (OGL-C). At Creative Commons Canada, we work together with the internationally-focused Creative Commons organization and other affiliates from around the world in our mission to help people freely, legally and easily share copyrighted works. Our core project is a suite of open licences which governments, authors, artists, educators and others use daily to share a cumulative total of more than 400 million works. We hope that our feedback, which we base on our experiences from assisting draft and maintain the popular Creative Commons licences through several iterations of refinements and improvements, will prove useful to the Government of Canada in its own attempts to establish an open licence that allows Canadians to access and share government works.
First of all, we welcome the improvements that the OLG-C achieves over the present one applied to the federal open data portal. We further commend the attempts made by the Government of Canada to reach out to other governments in drafting this licence, as we feel this step is extremely important in order to mitigate the growing problem of licence proliferation in Canada. The present situation is certainly an ever-growing concern: the more than twenty different licences which municipal, provincial, and the federal government apply to their works pose major barriers for citizens trying to combine works from different sources.
However, a few problems remain which may limit the “openness” of the licence and lower the usefulness of government works to citizens who wish to to study them, re-use them, and otherwise add value to these taxpayer-funded resources. In particular, we wish to bring the Government of Canada's attention to the three most problematic shortcomings: ambiguous compatibility with Creative Commons, potential barriers due to the mechanics of the do-not-suggest official status clause, and the attempt to license a database right.
With respect to the first concern, although we are excited that the government turned its attention to compatibility with Creative Commons licences, we find it unfortunate that the licence does not itself set out terms establishing such compatibility. This leaves users in uncertain legal territory when they attempt to combine government works with Creative Commons-licensed works. It is very difficult for users to identify how and whether the licences are, in fact, compatible. Further, there is no clear path for users to follow when they wish to re-release combined adaptations. It seems that a user might have to combine the terms of both licences – a legally challenging task and a very unwieldy prospect when a user wishes to combine works from dozens of different sources, thus needing to pile-on addition terms from each different source.
The clearest way to remedy this defect is to allow users to sublicense government works under Creative Commons licences. This would allow users to simply release re-mixed works under a Creative Commons licence alone, rather than precipitate the need to track and define which part of a work falls under what licence. Although the OGL-C draft takes the step of including a right to sublicense, its broad stroke does not set out any details and the legal implications remain uncertain. For example, the law is clear that a sublicense clause allows a user to re-license her or his rights under a different licence; however, does the user need to re-propagate the letter of each obligation? To clear up this confusion, we suggest that the final licence should grant an explicit right to sublicense under a Creative Commons Attribution licence.
Second, we concur with the suggestion that the Open Definition Advisory Council puts forth to modify the obligation 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” into an exemption. Although Creative Commons licences include a similar obligation, the wording is not identical and compatibility difficulties could arise. However, as an exemption rather than an positive obligation, the term would not directly conflict. This change would improve interoperability with Creative Commons, as well as other licences.
Finally, we feel it is worth pointing out a concern that the OGL-C purportedly licenses a "database right". The Government of Canada has no actual right to license a "database right", as the crown does not itself own any such right. Under Canadian Copyright law, where a database does not involve "originality" on the part of an author, or where the database is entirely fact-based, it vests in the public domain -- and is therefore compatible with all Creative Commons licences.
In summary, we propose three modifications to the already-improved OGL-C licence:
- Grant an explicit right to sublicence under a Creative Commons Attribution licence, thereby improving compatibility and increasing legal certainty;
- move the do-not-suggest official status clause from the obligations section to the exemptions section; and
- do not purport to licence a database right, as this does not exist under Canadian copyright law.
We also note that the Government of Canada might consider directly applying a Creative Commons licence to its works in order to further improve compatibility, further quell the problem of licence proliferation, and help ensure that its licence is legally sound internationally. This is an approach that other governments have already taken for many of their works, including the Australian Government and the Government of New Zealand. Creative Commons Canada would be happy to discuss these possibilities further.
Creative Commons Canada