Teresa Scassa - Blog

Thursday, 06 December 2012 10:25

Canada's New Draft Open Government Licence

Written by  Teresa Scassa
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The federal government has released a new proposed Open Government Licence – Canada (OGL-C) through its Open Data Portal. This licence agreement is not currently in effect; data available through the portal is still licensed under the existing Licence Agreement. The planned release of the OGL-C is in the spring of 2013.

The OGL-C has been a very long time in the drafting, and this draft is most welcome. The government is now seeking feedback on it – at the conclusion of the licence posted online is a fillable form that invites direct comments by the end of January 2013. The Licence Agreement currently in effect is also an open licence, but it suffers from excessive legalese. In contrast to other open licences it sets a tone that might make anyone feel that they should seek legal advice before using the government’s data sets. It contains language such as the following: “Intellectual Property Rights in any modification, translation or further development of the Data or in Value-Added Products made by you in the exercise of your rights under this Agreement, shall vest in you, in such person as you shall decide, or as determined by law.” It is hardly transparent and inviting language.

The proposed OGL-C is much more along the lines of Britain’s Open Government License (OGL), and indeed, the explanatory paragraphs that accompany the licence note that it is based upon this license. Interestingly enough, British Columbia also modified the British OGL, and has been using its modified version of this licence for some time now. The OGL-C and the BC-OGL are similar, but there a number of differences. Some of these are attributable to the distinct licensing parties, other differences may be due to a desire to further simplify the licence, and still others are difficult to understand.

There are several features of the OGL-C which deserve a second look before it becomes operational. First, “information” is defined in the licence as “information protected by copyright or by database right offered for use under the terms of this Licence” [emphasis added]. Since there is no database right in Canada, it makes no sense for this term to be included (it is also used in the definition of “Use”, where it refers to “doing any act which is restricted by copyright or database right”). The reference to database rights is found in the British OGL, since in that jurisdiction there are separate database rights. However, there is simply no reason why reference to rights that do not exist in Canada should be included in a licence meant to be simple, open and accessible. The BC-OGL, adapted to the Canadian context, refers only to copyright.

Like the BC-OGL licence, the OGL-C explicitly excludes any right to use personal information. Unlike the BC-OGL, however, the OGL-C uses the term “personal data” and provides no definition of this term. Since federal data protection laws (both PIPEDA and the Privacy Act) govern the collection, use and disclosure of “personal information”, it makes sense to use this term, rather than “personal data” (which is the British term, used in the British OGL). It should also be noted that the French version of the licence uses “renseignements personnels”, which is normally translated as “personal information” in the federal legislation. Further, it would be helpful to provide (as is the case in the BC-OGL) a definition of “personal information” as this is an important concept, and one which goes well beyond, for example, name and address information. This can be done by reference to the governing privacy statute (as is done in the BC-OGL and the British OGL), or it could also be done through the use of the common portion of most Canadian definitions of personal information: “information about an identifiable individual.”

The licence is also somewhat muddy in its use of two terms – “the Information Provider” and the “Licensor”. The BC OGL uses only “Information Provider” and defines this as Her Majesty the Queen in right of the Province of British Columbia. By contrast the British OGL uses the same structure as the OGL-C, and separately defines the Information Provider and the Licensor. However, the definition of Licensor in the British OGL is much more detailed. It is not clear that this complicated distinction needs to be carried through to the OGL-C. Indeed, the complexity of the British definition of “Licensor” is abandoned in the OGL-C, with the result that under the OGL-C, the “Information Provider” is defined as “the person or organization providing the Information under this Licence” and the “Licensor” is defined as “any Information Provider which has the authority to offer Information under the terms of this Licence”. Defined in this way, using two separate terms seems unnecessary and confusing. Further, there is no mention that the actual holder of copyright in government data or documents is Her Majesty the Queen in right of Canada, and that if any third party rights have been licensed to the Crown, Her Majesty will also be the one authorized to licence them further. What the double terminology seems to suggest instead is that Information Providers are Licensors only when they have the “authority” to license the information, presumably from Her Majesty the Queen in Right of Canada. This implies that there might be some rogue Information Providers who do not qualify as Licensors. It would be far simpler to adopt the structure used in the BC-OGL and simply acknowledge that where the information is provided by a department or agency of government, the Information Provider is acting on behalf of Her Majesty, and is entitled to licence the Crown copyright in the information. In other words, the legalistic term Licensor should be ditched in favour of Information Provider, and the Information Provider should be, ultimately, her Majesty the Queen in Right of Canada.

These criticisms aside, the OGL-C is a marked improvement over previous attempts at drafting open licences for federal government data. The licence is meant to be simple and accessible, and is designed to encourage rather than stifle the re-use of government information. Its reliance on the British OGL shows a willingness not only to build on the experience of others, but also to develop a licence that will have some measure of interoperability with other open licences around the world. Let’s hope that the process remains on track, and that the revised licence will indeed be adopted for use by spring 2013.

 

Last modified on Thursday, 21 March 2013 13:20
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