ChangeCamp Ottawa 2010 – Open Data Terms of Use Session

Report from the ChangeCamp Ottawa 2010 Session C2

July 17, 2010

Ottawa City Hall

Session C2 – Open Data Terms of Use Discussion

Session Moderator: Tracey P. Lauriault (tlauriau@gmail.com, datalibre.ca, civicaccess.ca)

Note Taker: Mark Tovey, (metamer@gmail.com, WorldChanging Canada )

Input provided by:

Introduction:

Four cities in Canada have implemented Open Data practices these are: Ottawa, Edmonton, Toronto and Vancouver. The City of Ottawa Council adopted Open Government Open Data Principles in the report that informed the Open Data Motion. The City of Vancouver created the first City Terms of Use (ToU) which was subsequently copied by the 3 other cities which became open data. Many users of the data however find the Open Data ToU to not be very open and some of the items in the document to be problematic.

Tracey P. Lauriault approached David Fewer, the director of Canadian Internet Policy and Public Interest Clinic (CIPPIC), about discussions from users and about the topic of access to public data in general. David Fewer agreed to have a summer law student conduct research on the issue of data licensing and ToU. Concurrently, the four open data cities have created a series of working groups between and among themselves to improve and advance their Open Data work. The City of Ottawa has agreed to be the point city on the issue of ToU.

Today’s session is about examining the existing City of Ottawa ToU and soliciting input from ChangeCamp 2010 attendees as part of the research process. The research will be ongoing during the summer and it was agreed that those who have provided input will be kept in the loop. In addition, there will be further consultation with the open data cities and potentially with the broader public who may have an opinion. The discussed output from this research may be in the form of advice to the cities, a modified ToU with annotations, or a CIPPIC FAQ. The Final output has not yet been decided.

Process:

  • Read the 2 page Terms of Use Handout
  • Share thoughts and comment on its content
  • Mark Tovey took notes
  • Tracey P. Lauriault wrote notes on the Flip Chart paper
  • The moderator suggested as a start to solicit input on the following paragraphs: Your Open License to the Datasets; Giving City Credit, Future Changes to the Terms of Use, Cancellation for Non-Compliance and any other items the group considers important.

Reporting:

The following includes the actual Terms of Use, and in the box below the comments from the session’s participants. Other comments and ideas are provided at the end.

City of Ottawa Terms of Use (ToU) (http://ottawa.ca/online_services/opendata/terms_en.html)

Downloaded 16/07/2010

Introduction

Please note that by accessing the datasets, you agree to these Terms of Use, which are intended to protect and promote the City’s commitments to open data and ensure that the recipients of these datasets give back to the community the benefits they derive from these datasets.

If you have any questions or comments about these Terms of Use, please feel free to contact us.

  • Not discussed

Your open license to the datasets

The City of Ottawa (City) now grants you a world-wide, royalty-free, non-exclusive license to use, modify, and distribute the datasets in all current and future media and formats for any lawful purpose. You now acknowledge that this license does not give you a copyright or other proprietary interest in the datasets. 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.

  • Operationalizing this is difficult particularly when there are many licenses in many jurisdictions
  • License proliferation is considered problematic
  • A lit of compatible licenses could be helpful
  • Include a clause that would make this ToU compatible with inherent license classes, where ‘this or that shall prevail’ type of language
  • Consider Open Data Commons or ODbl
  • This makes derivative works difficult, e.g. what if a user creates a model using these data
  • Attribution should not be a must
  • This clause may be illegal
  • Derivatives works license?
  • Discussion
    • Open data is impeded with this paragraph as a user cannot guarantee that the next user of the dataset or the derivative work can/will comply
    • It was considered unreasonable, the original user can only be responsible for themselves and what if it was an underage user?
    • The join of licenses issue. The City of Ottawa has these licenses. [Let’s say] Adam is using some information that is licensed under Creative Commons–and they’re not the same. [The question is] interoperability. You have “… restrictions of any kind….[copy from Terms of Use]”. So if he’s trying to join information, by saying “restrictions of any kind [copy]”, you can’t actually join NASA’s data to this data. NASA’s site says to cite them, Ottawa’s likewise. Can’t make any changes.
    • One way to work with this is to make sure that everyone is using the same license. [laughter]. OR you can have a clause saying that this license is also compatible with these–and then you set specific licenses that you’re also permitting.
    • OR Contact us if you have specific requirements around other licensing. OR absolutely you can’t use these licenses.
    • (later someone said that it was helpful to specify particular licenses. You could always add new compatible licenses, but it would create problems if you kept things open-ended).
    • What about mashups with many data sources and different licenses
    • There’s the Open Data Commons, who have developed a couple of licenses – so really another side a is to encourage open data cities to use the same licenses.
    • If you derive something from the data do you have to redistribute it under the same terms?Could be: if I’m doing something with the data it could have a different representation, then what
    • With derivative works / mashup you would get a license on a license on ca license
    • You could call it derivative work license in – e. g. model based on Ottawa data.
    • Robin: Does attribution–does copyright law–imply that you must have attribution and the license can’t override? Are data copyrightable?
    • Scientific communities are moving away from attribution, because of the mashing up multiple data sets such as in a climate change model. They may however site data sources.
    • City can update the list of licenses that derivatives could be built under.
    • The unrestricted user licenses has issues.
    • Obama has done a lot of good stuff in terms of putting stuff into the public domain – so for example it can be Wikipedia is a great example. There’s no crown copyright – no attribution necessary.
    • In the US government data are a public record and are in the public domain, there is a Westminster system in Canada which comes with Crown Copyright
    • What this is saying then, that, in the end if I redistribute anything – I have to be sure that others agree to the terms?
    • This is a kind of an impossibility: there’s really no point in saying something that’s illegal
    • If you change your terms of use to a different terms of use – does it remain subject to those original ToU?

Giving City credit

Although you are not required to credit the City for each use or reproduction of the datasets, you are entitled to do so and encouraged to conspicuously announce that these datasets are publicly available from the City under these Terms of Use. Upon the request of the City, you may be required to remove a credit from future uses or reproductions should the City decide that such credit is not in the public interest.

Discussion:

  • To enable attribution, provide attribution information tags in XML
  • Microattribution – metatags & XML attribution –
  • Often this ideas does not work in practice because attribution is desired precisely as the dataset are.
  • Data Citation may help

Future changes to datasets/Terms of Use

The City may at any time and from time to time add, delete, or change the datasets or these Terms of Use. Notice of changes may be posted on the home page for these datasets or this page. Any change is effective immediately upon posting, unless otherwise stated.

  • When developing ToU, it is important to think in the very long term, for instance 50 years from now what could be the implications?
  • Increase the limitations on the City’s ability to arbitrarily change the ToU
  • Have a process in place to discuss ToU changes
  • Notice of changes to the ToU on the City website is considered inadequate
  • Devise a better way to advise on the changes
  • Split paragraphs on changes to the datasets and to the ToU, have a paragraph on Changes to the Data and a separate one on Changes to the ToU
  • A dataset versionning process can provide the means for users to know when changes have been made
  • RSS feed of changes to users for dataset changes
  • Feed of Feed on the datasets
  • Provide an archive of previous data versions, recognizing that some data dynamically change and this may not be possible on a per change basis
  • Ensure basic Metadata are provided
  • Data Time Stamping
  • Changes should be annotated
  • Include a sunset clause whereby after a certain period of time the data go into the public domain.
  • Create an archive

Discussion:

  • This is probably retroactive – if you’re making a switch to a better set of terms of use – you can probably limit your ability to have change.
  • What if – if it’s they’re responsibility – if the changes are effective immediately
  • A consultation on the ToU could be useful
  • You can’t force people who want to sign up to an RSS feed to do so.
  • Imagine the lens on the distant future.
  • – just last week I was looking at economic history data from Britain from 1680. If I’m looking at the lens of the future… Imagine that it’s no like Mark’s trying to do a mashup tomorrow – but it’s some friggin’ archeologists from 2050 – can I used this data – what are the principles? It’s to re-frame the terms of use
  • What of sunset clauses – the information goes into the public domain after 50 years or something. This is a different thing than copyright.
  • In some way it’s more related to archives.
  • If you need some argument to go against the lawyers – this is extremely easy to game – all I have to do is add a 5 to the end of each data point – to make a derivative work a bot – it actually makes no sense for that term to exist.
  • If you remove sole discretion – it does not give you a right to challenge.
  • This is only justified is if someone has breached the licenses, but what are the types of breaches?
  • Do not bring in morality clauses – harmful – even if it’s a w omen’s collective that sets up open bordello.com – it may still be considered harmful, who gets to decide what is and is not.
  • This could be handled without cancellation, non-compliance.
  • Address without cancellation
  • Do not include morality, if it’s against the law, it’s against the law, and to avoid being sued the city would want the ability to go after you.
  • An explanatory note, with a worked example. ie. so you can’t enable robmyhouse.com will help clarify this clause
  • Allow recourse, for instance if a user corrects whatever the problem is, it will be restored automatically.
  • The problem is whether or not a user notices the notice of changes, at the moment the method may not be sufficient and people may not be complying because they were not aware of the notice of change
  • With this clause, at the moment, you could revoke something – so 15 years down the line all the derivative works have to be revoked too?
  • I like the idea of breaking apart future changes to data sets, and future terms of use.
  • Also need to consider when data are depreciated / archived
  • Need a way to export the whole data – so you have a way to have a snapshot.

Compliance with law – Your responsibility

You assume sole responsibility for your use and reproduction of the datasets complying with all applicable laws and industry standards.

  • This was not discussed

No warranty with datasets

You get NO WARRANTIES, none of any kind. By this, we mean, for example (but without limiting the total intended scope of the preceding sentence), (1) that while reasonable efforts have been made in preparing these datasets for use by you, the City cannot give any promises as to the completeness, currency, or accuracy of the datasets nor that access will be continuous, (2) the City cannot make any promise that the datasets are free and clear of any possible third party copyright, moral rights, or other claim, (3) the datasets have been modified from their original source, as data initially generated by the City for its internal uses, and (4) all data visualizations on maps are approximate and include only records that can be mapped.

You accept these datasets on an “as-is, where is” basis and agree to use them at your own risk.

  • This was not discussed

Exclusion of liability

You agree that you will not and cannot sue the City for anything, which the City does or does not do (even if intentional or negligent) in connection with the datasets and your use or inability to use them. Without limiting the general scope of the preceding sentence, this means that the City and its agents are not liable on any legal theory or basis for any direct, incidental, indirect, special, punitive, exemplary, or consequential damages or losses, including without limitation, loss of revenue or anticipated profits, loss of goodwill, loss of business, loss of data, computer failure or malfunction, or any other damages or losses.

  • This was not discussed

Liability for not complying with Terms of Use

If, as a result of your breach of these Terms of Use, the City gets sued or is required to pay someone money, you agree to protect the City and reimburse the City for everything which you cause the City to suffer. This means that you agree to defend, indemnify, and hold harmless the City and all of its agents from any and all liabilities incurred in connection with any claim arising from any breach by you of these Terms of Use, including reasonable legal fees and costs. You agree to cooperate fully in the defense of any such claim. The City reserves the right to assume, at its own expense, the exclusive defense and control of any matter otherwise subject to indemnification by you. You agree not to settle any matter without the written consent of the City.

  • This was not discussed, but some related information were discussed under different headings

Cancellation for non-compliance

The City may, in its sole discretion, cancel or suspend your access to the datasets without notice and for any reason, including anything which the City, in its sole discretion, believes is a breach of these Terms of Use or is otherwise unlawful or harmful to others. In the event of cancellation or suspension, you will no longer be authorized to use or reproduce these datasets, and the City may use any means possible to enforce its decision. Such cancellation or suspension will not affect any person who has received the datasets from you and who is otherwise in compliance with these Terms of Use.

  • This was considered problematic and unreasonable
  • Ensure there is a process and criteria in place
  • Add explanatory notes
  • What reasons could the city have to cancel or suspend access to a dataset?
  • It was considered ‘easy to game’ this clause, so why bother having it?
  • Remove the language around ‘sole discretion’
  • Ensure there is process for recourse
  • Morally should not creep into ToUs
  • Errors in the data or a mistake in a breach of personal privacy are considered to be reasonable issues to ‘take back’ the data or not permit its use
  • This could be addressed without cancellation, for instance, if there is a breach in the ToU then provide the user the time to rectify the problem
  • Important to have an explanatory note and a clear example as to why the city would want to do this
  • This is open to arbitrariness

Discussion:

  • Remove credit – they can decide that they don’t want to be cited any more. What’s that all about?
  • But what if you’ve got a great mashup of the really cool progressive sex shops – the city may decide that it does not mind you doing that but they may not want to be associated with it.
  • I wonder if a possible solution could be that the city could make a request to remove credit for reason of public decency or public interest
  • Public decency is a slippery slope – whenever possible remove morality and what remind ourselves that what is against the law is against the law.
  • Agree, for instance, if you’re doing something scientific – let’s say a climate change model in 2100 – and let’s say science becomes a religious issue, would you want that model suppressed for morality reasons?
  • Users want to be able to cite data to demonstrate they are using valid and reliable data from producer side.
  • One of the goals is to make this license somehow exemplary. One thing that could be awesome would be to add explanatory notes to your licenses For instance “I want you to revoke your moral rights’ – but what did that mean? It meant that if we wanted to sell the code to a nuclear power plant you couldn’t revoke your moral rights. So then I understood.
  • In the same way that a court will consider discussion in committee in figuring out how something will be interpreted. make discussions available.

No endorsement

You may not publicly represent or imply that the City is participating in, or has sponsored, approved, or endorsed the manner or purpose of, your use or reproduction of these datasets.

  • Concern about the reasoning the City would include this.
  • As an alternative, the City could ask that credit be removed but that the data user can reference the dataset’s source
  • Validity – referencing provides the means to ensure that the user of the data are using reliable data from a credible source

No association

You may not use any trade-mark, official mark, official emblem or logo, of the City, or any of its other references or means of promotion or publicity without the City’s prior written consent nor in any event to represent or imply an association or affiliation with the City.

  • Not discussed

Governing law and jurisdiction from which datasets are published

These datasets are published from within the Province of Ontario, Canada. These Terms of Use are governed by Ontario law and the City and you now irrevocably submit to the exclusive jurisdiction of Ontario courts with respect to any and all matters arising under these Terms of Use or these datasets.

  • Not discussed however there was mention an earlier question as to whether or not copyright applies to data

Additional Notes:

  • A new ToU should include the formal language and be accompanied by explanatory notes with tangible examples.
  • Disseminate the ToU in a way enable discussion e.g. comment-able in a wiki
  • Consider the Creative Commons model which combines both plain language and legal language
  • Consider either CCO (http://creativecommons.org/publicdomain/zero/1.0/) or ODbl (http://www.opendatacommons.org/licenses/odbl/)
  • Develop and/or adopt a ToU with Open Government principles
  • Provide the ability to cite these data, this is important when data are used in academic or other publications
  • What about CC0 that’s public domain.
  • Can you copyright a fact? – Teressa Scassa, Canada’s Research Chair in Information Law & Vice-Dean Research has written about this and id doing research with geomaticians on this topic . Sometimes you can copyright facts.

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