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Richard Poynder interviews Jordan Hatcher

Jonathan Gray - October 19, 2010 in Interviews, Legal, OKF, Open Data, Open Data Commons, Open Definition, Open Government Data, Open Knowledge Definition, Public Domain, WG Open Licensing

Open Acccess journalist extraordinaire Richard Poynder recently interviewed the Open Knowledge Foundation’s Jordan Hatcher about data licensing, the public domain, and lots more. An excerpt is reproduced below. The full version is available on Richard’s website.

Over the past twenty years or so we have seen a rising tide of alternative copyright licences emerge — for software, music and most types of content. These include the Berkeley Software Distribution (BSD) licence, the General Public Licence (GPL), and the range of licences devised by Creative Commons (CC). More recently a number of open licences and “dedications” have also been developed to assist people make data more freely available.

The various new licences have given rise to terms like “copyleft” and “libre” licensing, and to a growing social and political movement whose ultimate end-point remains to be established.

Why have these licences been developed? How do they differ from traditional copyright licences? And can we expect them to help or hinder reform of the traditional copyright system — which many now believe has got out of control? I discussed these and other questions in a recent email interview with Jordan Hatcher.

A UK-based Texas lawyer specialising in IT and intellectual property law, Jordan Hatcher is co-founder of OpenDataCommons.org, a board member of the Open Knowledge Foundation (OKF), and blogs under the name opencontentlawyer.

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Jordan Hatcher

Big question

RP: Can you begin by saying something about yourself and your experience in the IP/copyright field?

JH: I’m a Texas lawyer living in the UK and focusing on IP and IT law. I concentrate on practical solutions and legal issues centred on the intersection of law and technology. While I like the entire field of IP, international IP and copyright are my most favourite areas.

As to more formal qualifications, I have a BA in Radio/TV/Film, a JD in Law, and an LLM in Innovation, Technology and the Law. I’ve been on the team that helped bring Creative Commons licences to Scotland and have led, or been a team member on, a number of studies looking at open content licences and their use within universities and the cultural heritage sector.

I was formerly a researcher at the University of Edinburgh in IP/IT, and for the past 2.5 years have been providing IP strategy and IP due diligence services with a leading IP strategy consultancy in London.

I’m also the co-founder and principal legal drafter behind Open Data Commons, a project to provide legal tools for open data, and the Chair of the Advisory Council for the Open Definition. I sit on the board for the Open Knowledge Foundation.

More detail than you can ask for is available on my web site here, and on my LinkedIn page here.

RP: It might also help if you reminded us what role copyright is supposed to play in society, how that role has changed over time (assuming that you feel it has) and whether you think it plays the role that society assigned to it successfully today.

JH: Wow that’s a big question and one that has changed quite a bit since the origin of copyright. As with most law, I take a utilitarian / legal realist view that the law is there to encourage a set of behaviours.

Copyright law is often described as being created to encourage more production and dissemination of works, and like any law, its imperfect in its execution.

I think what’s most interesting about copyright history is the technology side (without trying to sound like a technological determinist!). As new and potentially disruptive technologies have come along and changed the balance — from the printing press all the way to digital technology — the way we have reacted has been fairly consistent: some try to hang on to the old model as others eagerly adopt the new model.

For those interested in learning more about copyright’s history, I highly recommend the work of Ronan Deazley, and suggest people look at the first sections in Patry on Copyright. They could also usefully read Patry’s Moral Panics and the Copyright Wars. Additionally, there are many historical materials on copyright available at the homepage for a specific research project on the topic here.

Three tranches

RP: In the past twenty years or so we have seen a number of alternative approaches to licensing content develop — most notably through the General Public Licence and the set of licences developed by the Creative Commons. Why do you think these licences have emerged, and what are the implications of their emergence in your view?

JH: I see free and open licence development as happening within three tranches, all related to a specific area of use.

1. FOSS for software. Alongside the GPL, there have been a number of licences developed since the birth of the movement (and continuing to today), all aimed at software. These licences work best for software and tend to fall over when applied to other areas.

2. Open licences and Public licences for content. These are aimed at content, such as video, images, music, and so on. Creative Commons is certainly the most popular, but definitely not the first. The birth of CC does however represent a watershed moment in thinking about open licensing for content.

I distinguish open licences from public licences here, mostly because Creative Commons is so popular. Open has so many meanings to people (as do “free”) that it is critical to define from a legal perspective what is meant when one says “open”. The Open Knowledge Definition does this, and states that “open” means users have the right to use, reuse, and redistribute the content with very few restrictions — only attribution and share-alike are allowed restrictions, and commercial use must specifically be allowed.

The Open Definition means that only two out of the main six CC licences are open content licences — CC-BY and CC-BY-SA. The other four involve the No Derivatives (ND) restriction (thus prohibiting reuse) or have Non Commercial (NC) restrictions. The other four are what I refer to as “public licences”; in other words they are licences provided for use by the general public.

Of course CC’s public domain tools, such as CC0, all meet the Open Definition as well because they have no restrictions on use, reuse, and redistribution.

I wrote about this in a bit more detail recently on my blog.

3. Open Data Licences. Databases are different from content and software — they are a little like both in what users want to do with them and how licensors want to protect them, but are different from software and content in both the legal rights that apply and how database creators want to use open data licences.

As a result, there’s a need for specific open data licences, which is why we founded Open Data Commons. Today we have three tools available. It’s a new area of open licensing and we’re all still trying to work out all the questions and implications.

Open data

RP: As you say, data needs to be treated differently from other types of content, and for this reason a number of specific licences have been developed — including the Public Domain Dedication Licence (PDDL), the Public Doman Dedication Certificate (PDDC) and Creative Commons Zero. Can you explain how these licences approach the issue of licensing data in an open way?

JH: The three you’ve mentioned are all aimed at placing work into the public domain. The public domain has a very specific meaning in a legal context: It means that there are no copyright or other IP rights over the work. This is the most open/free approach as the aim is to eliminate any restrictions from an IP perspective.

There are some rights that can be hard to eliminate, and so of course patents may still be an issue depending on the context, (but perhaps that’s conversation for another time).

In addition to these tools, we’ve created two additional specific tools for openly licensing databases — the ODbL and the ODC-Attribution licences.

RP: Can you say something about these tools, and what they bring to the party?

JH: All three are tools to help increase the public domain and make it more known and accessible.

There’s some really exciting stuff going on with the public domain right now, including with PD calculators — tools to automatically determine whether a work is in the public domain. The great thing about work in the public domain is that it is completely legally interoperable, as it eliminates copyright restrictions.

See the rest of the interview on Open and Shut

Related posts:

  1. Interview with Jordan Hatcher on legal tools for open data
  2. Jordan Hatcher talk on Open Data Licensing at iSemantics
  3. Open Licenses vs Public Licenses

Public Domain Calculators at Europeana

Jonathan Gray - May 12, 2010 in COMMUNIA, External, Guest post, OKF, OKF Projects, Public Domain, Public Domain Works, Technical, WG Public Domain, Working Groups

The following guest post is from Christina Angelopoulos at the Institute for Information Law (IViR) and Maarten Zeinstra at Nederland Kennisland who are working on building a series of Public Domain Calculators as part of the Europeana project. Both are also members of the Open Knowledge Foundation’s Working Group on the Public Domain.

Europeana Logo

Over the past few months the Institute for Information Law (IViR) of the University of Amsterdam and Nederland Kennisland have been collaborating on the preparation of a set of six Public Domain Helper Tools as part of the EuropeanConnect project. The Tools are intended to assist Europeana data providers in the determination of whether or not a certain work or other subject matter vested with copyright or neighbouring rights (related rights) has fallen into the public domain and can therefore be freely copied or re-used, through functioning as a simple interface between the user and the often complex set of national rules governing the term of protection. The issue is of significance for Europeana, as contributing organisations will be expected to clearly mark the material in their collection as being in the public domain, through the attachment of a Europeana Public Domain Licence, whenever possible.

The Tools are based on six National Flowcharts (Decisions Trees) built by IViR on the basis of research into the duration of the protection of subject matter in which copyright or neighbouring rights subsist in six European jurisdictions (the Czech Republic, France, Italy, the Netherlands, Spain and the United Kingdom). By means of a series of simple yes-or-no questions, the Flowcharts are intended to guide the user through all important issues relevant to the determination of the public domain status of a given item.

Researching Copyright Law

The first step in the construction of the flowcharts was the careful study of EU Term Directive. The Directive attempts the harmonisation of rules on the term of protection of copyright and neighbouring rights across the board of EU Member States. The rules of the Directive were integrated by IViR into a set of Generic Skeleton European Flowcharts. Given the essential role that the Term Directive has played in shaping national laws on the duration of protection, these generic charts functioned as the prototype for the six National Flowcharts. An initial version of the Generic European Flowchart, as well as the National Flowcharts for the Netherlands and the United Kingdom, was put together with the help of the Open Knowledge Foundation at a Communia workshop in November 2009.

Further information necessary for the refinement of these charts as well as the assembly of the remaining four National Flowcharts was collected either through the collaboration of National Legal Experts contacted by IViR (Czech Republic, Italy and Spain) or independently through IViR’s in-house expertise (EU, France, the Netherlands and the UK).

Both the Generic European Flowcharts and the National Flowcharts have been split into two categories: one dedicated to the rules governing the duration of copyright and the sui generis database right and one dedicated to the rules governing neighbouring rights. Although this division was made for the sake of usability and in accordance with the different subject matter of these categories of rights (works of copyright and unoriginal databases on the one hand and performances, phonograms, films and broadcasts on the other), the two types of flowcharts are intended to be viewed as connected and should be applied jointly if a comprehensive conclusion as to the public domain status of an examined item is to be reached (in fact the final conclusion in each directs the user to the application of the other). This is due to the fact that, although the protected subject matter of these two categories of rights differs, they may not be entirely unrelated. For example, it does not suffice to examine whether the rights of the author of a musical work have expired; it may also be necessary to investigate whether the rights of the performer of the work or of the producer of the phonogram onto which the work has been fixated have also expired, in order to reach an accurate conclusion as to whether or not a certain item in a collection may be copied or re-used.

Legal Complexities

A variety of legal complexities surfaced during the research into the topic. Condensing the complex rules that govern the term of protection in the examined jurisdictions into a user-friendly tool presented a substantial challenge. One of the most perplexing issues was that of the first question to be asked. Rather than engage in complicated descriptions of the scope of the subject matter protected by copyright and related rights, IViR decided to avoid this can of worms. Instead, the flowchart’s starting point is provided by the question “is the work an unoriginal database?” However, this solution seems unsatisfactory and further thought is being put into an alternative approach.

Other difficult legal issues stumbled upon include the following:

  • Term of protection vis-à-vis third countries
  • Term of protection of works of joint authorship and collective works
  • The term of protection (or lack thereof) for moral rights
  • Application of new terms and transitional provisions
  • Copyright protection of critical and scientific publications and of non-original photographs
  • Copyright protection of official acts of public authorities and other works of public origins (e.g. legislative texts, political speeches, works of traditional folklore)
  • Copyright protection of translations, adaptations and typographical arrangements
  • Copyright protection of computer-generated works

On the national level, areas of uncertainty related to such matters as the British provisions on the protection of films (no distinction is made under British law between the audiovisual or cinematographic work and its first fixation, contrary to the system applied on the EU level) or exceptional extensions to the term of protection, such as that granted in France due to World Wars I and II or in the UK to J.M. Barrie’s “Peter Pan”.

Web based Public Domain Calculators

Once the Flowcharts had been prepared they were translated into code by IViR’s colleagues at Kennisland, thus resulting in the creation of the current set of six web-based Public Domain Helper Tools.

Technically the flowcharts needed to be translated into formats that computers can read. In this project Kennisland choose for an Extensible Markup Language (XML) approach for describing the questions in the flowcharts and the relations between them. The resulting XML documents are both human and computer readable. Using XML documents also allowed Kennisland to keep the decision structure separate from the actual programming language, which makes maintenance of both content and code easier.

Kennisland then needed to build an XML reader that could translate the structures and questions of these XML files into a questionnaire or apply some set of data to the available questions, so as to make the automatic calculation of large datasets possible. For the EuropeanaConnect project Kennisland developed two of these XML readers. The first translates these XML schemes into a graphical user interface tool (this can be found at EuropeanaLabs) and the second can potentially automatically determine the status of a work which resides at the Public Domain Works project mercurial depository on KnowledgeForge. Both of these applications are open source and we encourage people to download, modify and work on these tools.

It should be noted that, as part of Kennisland’s collaboration with the Open Knowledge Foundation, Kennisland is currently assisting in the development of an XML base scheme for automatic determination of the rights status of a work using bibliographic information. Unfortunately however this information alone is usually not enough for the automatic identification on a European level. This is due to the many international treaties that have accumulated over the years; rules for example change depending on whether an author is born in a country party to the Berne convention, an EU Member State or a third country.

It should of course also be noted that there is a limit to the extent to which an electronic tool can replace a case-by-case assessment of the public domain status of a copyrighted work or other protected subject matter in complicated legal situations. The Tools are accordingly accompanied by a disclaimer indicating that they cannot offer an absolute guarantee of legal certainty.

Further fine-tuning is necessary before the Helper Tools are ready to be deployed. For the moment test versions of the electronic Tools can be found here. We invite readers to try these beta tools and give us feedback on the pd-discuss list!

Note from the authors: If the whole construction process for the Flowcharts has highlighted one thing that would be the bewildering complexity of the current rules governing the term of protection for copyright and related rights. Despite the Term Directive’s attempts at creating a level playing field, national legislative idiosyncrasies are still going strong in the post-harmonisation era – a single European term of protection remains very much a chimera. The relevant rules are hardly simple on the level of the individual Member States either. In particular in countries such as the UK and France, the term of protection currently operates under confusing entanglements of rules and exceptions that make the confident calculation of the term of protection almost impossible for a copyright layperson and difficult even for experts.

PD Calculators

Generic copyright flowchart by Christina Angelopoulos. PDF version available from Public Domain Calculators wiki page

Related posts:

  1. Public Domain Calculators Meeting, 10-11th November 2009
  2. The Public Domain and the WIPO Development Agenda
  3. New microshort film on the Public Domain Calculators!

Seasons Greetings from the Open Knowledge Foundation!

Jonathan Gray - December 23, 2009 in OKF, Open Knowledge, Public Domain Works

A big Merry Christmas from the Open Knowledge Foundation to all our friends and supporters! In the festive spirit, we’ve put together a few images, texts and audio recordings from various open knowledge projects for your delectation. If you’d have any suggestions for things to add, please let us know in the comments below. See you again in 2010!

Wikimedia Commons

Utagawa Hiroshige, “Snow falling on a town”


Utagawa Hiroshige, “A river among snowy mountains”


Utagawa Hiroshige, “Nichiren going into exile on the island of Sado”


Utagawa Hiroshige, “Oi on the Kisokaido”


Caspar David Friedrich, Winterlandschaft mit Kirche (Winter landscape with church)

Caspar David Friedrich, Verschneite Hütte (Hut in Snow)

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Caspar David Friedrich, Hünengrab im Schnee (Dolmen in Snow)


Caspar David Friedrich, Der Chasseur im Walde (The Chasseur in the Forest)


Flickr Commons

‘The Isefiorden, Spitzbergen, Norway’ from the Library of Congress


‘Snow field, Australian alps’ from the Powerhouse Museum


‘Le port de Venasque, Luchon’ by Bibliothèque de Toulouse


Project Gutenberg

Charles Dickens, A Christmas Carol and Some Christmas Stories

Clement Clarke Moore, Twas the Night before Christmas

Librivox

Charles Dickens, A Christmas Carol

Clement Clarke Moore, Twas the Night before Christmas

Christmas Carols

Internet Archive

Christmas 78 Miscellany

Related posts:

  1. Open Knowledge Foundation Newsletter No. 13
  2. Looking for a design guru to give the Open Knowledge Foundation a makeover!
  3. Open Knowledge Foundation Newsletter No. 14