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.
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.
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.
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.
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.
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).
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…