Everybody's Libraries

November 24, 2008

4 Comments

  1. A Creative Commons license is inappropriate for cataloging records, precisely because they are unlikely to be copyrightable. The whole legal premise of Creative Commons (and open source) licenses is that someone owns the copyright, and thus they have the right to license you to use it, and if you want a license, these are the terms. If you don’t own a copyright in the first place, there’s no way to license it under Creative Commons.

    The Talis-initiated Open Data Commons project was motivated by this fact, to find a suitable open access license for _data_. This turns out to be a tricky thing to do, in part because intellectual property in data is treated fairly differently in different jurisdictions, AND is still an open legal question in many aspects–to create a license that would apply to all jurisdictions, and apply regardless of how certain open legal questions (in some jurisdictions) get decided is tricky.

    The lawyers involved in the Creative Commons project actually decided that it was unworkable to create an enforceable license for data that was ‘some rights reserved’ like creative commons–that says ‘you can do X, but not Y’ or ‘if you do X, then you have to do Y.’ (eg, Share Alike). The only workable thing to do was to release data into the public domain, saying whatever copyright or other intellectual property rights you may or may not have to it, you relinquish them, or if you can’t legally relinquish them for some reason, then you grant full and complete rights to the data to anyone, as much as the law will let you.

    The result is the Open Data Commons Public Domain Dedication and License.

    http://www.opendatacommons.org/odc-public-domain-dedication-and-licence/

    I actually think it’s a mis-step to try licensing your data under Creative Commons. Actual lawyers looked into this, and the result was the Open Data Commons Public Domain Dedication and License. It’s what it was designed for. I recommend using it.

    Comment by jrochkind — November 24, 2008 @ 11:28 pm

  2. PS, a slightly expanded version of the prior comment, including citations to legal opinions on why CC is inappropriate for data, and a statement from CC itself that CC is inappropriate for data, can be found on my blog:

    http://bibwild.wordpress.com/2008/11/24/creative-commons-is-not-appropriate-for-data/

    Comment by jrochkind — November 24, 2008 @ 11:40 pm

  3. Thanks for your comments, which are food for thought. I’ll insert a pointer down to these comments in the license section of the main post.

    I like the ODC PDDL, and think it would be a good long-term consensus equilibrium for library metadata. It’s not clear to me why a “ShareAlike applies only insofar as copyright/database restrictions *can* apply” license causes legal uncertainty– if copyright/database restrictions apply in a jurisdiction, it’s binding; if they don’t, it’s only advisory. (But IANAL.)

    It looks to me that the more compelling reason for Science Commons to have moved from Creative Commons licenses to a public domain dedication were social/workflow issues rather than legal issues. In particular, the overhead involved in keeping the attribution trails, and possible incompatibilities with other open data arrangements, made the license more trouble than it was worth in many scientific applications.

    That’s something to consider here, and a good argument for going to ODC PDDL in the long term. In the short term, a lot of libraries are depending on OCLC for sharing cataloging, OCLC is now planning to put explicit restrictions on what we share, and there is not (yet) either a well-established alternative that does all that shared-catalogers in libraries need, or a clear legal holding on the status of catalog records as a whole.

    In such a situation, where libraries are relying on WorldCat for data sharing, it’s not a choice between ShareAlike and public domain dedication; it’s a choice between ShareAlike and OCLC restrictions (since their restrictions can override a public domain dedication, but not a ShareAlike license). So a ShareAlike may make sense as a near-term defensive measure.

    This situation may well change before long, with the rise of alternative sharing hubs. I don’t yet see one that can play the roles WorldCat plays for shared cataloging, though one might develop before long. (The biblios.net announcement I saw this morning looks promising, I admit, but it’s just started its beta phase now and we’ll need to see how it works out.)

    It’s possible to shift after the fact from an Attribution-ShareAlike license to something like the ODC PDDL, if the folks mentioned in a record’s attribution gave their consent to this. As a practical matter, this may suffer from the same problems of tracking down rightsholders that we see in other copyright clearance issues (though one would hope that libraries are easier to reach than random authors).

    Ideally, maybe you’d have a defensive license like ShareAlike when you needed it, but have it get out of the way without fuss when it was no longer needed. Perhaps, for instance, one could invent a license that specified ShareAlike for an initial term, but then automatically expired in favor of ODC PDDL after certain conditions held, or after a certain (fixed) date passed. I wouldn’t feel confident about drafting something like this myself without a lawyer (and other shared-cataloging initiatives might make it moot). But it may be worth considering further.

    Comment by John Mark Ockerbloom — November 25, 2008 @ 5:56 pm

  4. If you submit records to OCLC with a ODC PDDL, then they are public domain, and no matter what restrictions OCLC tries to put on them, anyone can get them from another source (like you directly) and do whatever they like with it. I think that’s good enough.

    I think efforts to try to force OCLC to share records from their own infrastructure by putting in a subtle ‘back door’ license are not going to work, even if it WAS legally enforceable, which it’s probably not. The way to get OCLC to change their policy, is for our libraries to apply pressure to OCLC through official channels.

    But while that’s going on, it is important that the original cataloging that libraries _continue_ to do does not become de facto owned by OCLC. Making sure it’s all ODC PDDL seems to accomplish that. Include a 996 saying so in your own OPAC, even if OCLC removes it from your data once you contribute it to them.

    It would be nice if there were a machine-readable indicator that your content in your own OPAC was ODC PDDL though. The URL to the ODC PDDL would serve, except that they ask you not to link to it, doh. But we should come up with a suitable one, or ask Talis to establish one, I’m sure they would.

    Comment by jrochkind — November 25, 2008 @ 6:09 pm


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