Authors Kent Mewhort
License CC-BY-3.0
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Clinique d’intérêt public et de politique d’internet du Canada
Samuelson-Glushko
CREATIVE COMMONS LICENSES:
OPTIONS FOR CANADIAN OPEN DATA PROVIDERS
Report by:
Kent Mewhort, CIPPIC Legal Staff
June 1, 2012
Université d’Ottawa University of Ottawa
Faculté de droit Faculty of Law
57 Louis-Pasteur, Ottawa (Ontario) K1N 6N5 Canada
Tel.: 613-562-5800 # 2553
cippic@uottawa.ca
www.cippic.ca
Financial support provided by GeoConnections, a national
collaborative initiative led by National Resources Canada.
GeoConnections supports the integration and use of Canadian
Geospatial Data Infrastructure (CGDI), an on-line resource that
improves the sharing, access and use of open geospatial
information.
This work is licensed under a Creative Commons Attribution 3.0 Unported License.
1
Table of Contents
I.Executive Summary.................................................................................................................................2
II.Purpose...................................................................................................................................................4
III.Methodology.........................................................................................................................................4
IV.Background...........................................................................................................................................5
A.Open data in Canada..........................................................................................................................5
B.Municipal Open data..........................................................................................................................5
C.Federal Open Data.............................................................................................................................6
D.Provincial Open Data........................................................................................................................7
V.Creative Commons Licenses..................................................................................................................7
A.Overview of Creative Commons.......................................................................................................7
B.Creative Commons in Canada...........................................................................................................8
C.Use of Creative Commons Licenses in Open Data Portals...............................................................9
D.Benefits of Creative Commons Licenses..........................................................................................9
Interoperability.............................................................................................................................9
Comprehensibility......................................................................................................................10
Widely-Approved License Terms..............................................................................................10
E.Potential and Perceived Drawbacks of Creative Commons Licenses..............................................11
Scope of the License is Limited to Copyrighted Works.............................................................11
Perception as a Non-Data License.............................................................................................13
Perceived Loss of Control over Data.........................................................................................14
VI.Use of the CC0 Public Domain Dedication in Open Data Portals......................................................15
A.Benefits of the CC0 Waiver.............................................................................................................16
B.Potential and Perceived Drawbacks of the CC0 Waiver..................................................................17
Risk of Liability.........................................................................................................................17
Government marks.....................................................................................................................17
Personal Information..................................................................................................................18
VII.Interoperability with Creative Commons Licenses...........................................................................18
A.Definition of Interoperability..........................................................................................................19
B.Making License Terms Interoperable with Creative Commons .....................................................20
C.Designating a License as Interoperable with Creative Commons ..................................................22
VIII.Conclusion........................................................................................................................................23
1
I. Executive Summary
Creative Commons licenses, which are widely recognized as a de facto standard for sharing
copyrighted works online, have the potential to help address the most prominent issue facing
Canadian open data providers and data users: license proliferation. With many Canadian
data providers adopting different and non-interoperable licenses, Canadian data users are
often unable to combine datasets from different sources. Creative Commons licenses, on the
other hand, are standardized for worldwide interoperability. The adoption of a Creative
Commons license – or the adoption of a license interoperable with Creative Commons – can
give users the ability to mix data with more than 400 million works already licensed under
Creative Commons, including government datasets in jurisdictions such as Australia and New
Zealand.
Canadian data providers have several options to tap into the interoperability of Creative
Commons licenses, all of which provide benefits to data providers and data users:
• CC0 Public Domain Dedication (or ODC-PDDL)
In most cases, a CC0 Public Domain Dedication is the best approach for government
data providers. By placing a work as close as possible into the worldwide public
domain, this license maximizes flexibility for the users – and thereby maximizes
interoperability with other licenses.
Even with the permissive grant that CC0 provides to the user, the terms still act to
protect the core interests of the data provider. CC0 provides the datasets “as-is”, with
no warranties or representations of any kind. Further, the data provider retains control
over the license subject matter. For example, a government data provider is free to
state that personal information does not form part of the CC0 subject matter, such that
the CC0 terms do not apply (akin to the approach of the U.K. Open Government
License).
In Canada, the City of Surrey was the first Canadian government to adopt this
approach, where it applied the equivalent ODC-PDDL license to its open data portal.
• Creative Commons Attribution License (CC-BY)
The Creative Commons Attribution License is another highly-interoperable choice.
2
Given this license's popularity online, the terms are widely recognized and understood
by users in Canada and around the world. It is also an approved license under the
“Definition of Free Cultural Works” and the Open Knowledge Project's “Open
Definition” project.
Although the original focus of the Creative Commons Attribution License was not
specifically on data, this is not the case today. The Creative Common organization
endorses and supports use of CC-BY for data, with governments in Australia and New
Zealand fully on-board as government adopters of this license.
• U.K. Open Government License
Licenses modeled after the U.K. Open Government License, which the U.K.
government intentionally crafted for interoperability with Creative Commons, have
recently gained traction in Canada. Both the B.C. provincial government and the City
of Toronto adopted licenses very similar licenses.
Although this approach provides an excellent alternative where neither CC0 nor CC-BY
is feasible, Canadian data providers should keep in mind the very different legal
landscape in Canada with respect to database rights. The reason that the U.K. opted
for a custom license rather than CC-BY was because of the sui generis database rights
that exist in the E.U.; however, no such database rights exist in Canadian law.
Canadian data providers may find that CC-BY is more appropriate.
Where Canadian data providers do choose to adopt the U.K. model, they should try to
maintain the U.K.'s approach of interoperability with CC-BY and, ideally, even make
their licenses more interoperable with a few small changes. Although the U.K. license
provides a minimal intersective interoperability with Creative Commons licenses, an
explicit license term that establishes interoperability with Creative Commons would
help increase interoperability and would simplify the user's task in combining data and
license terms.
3
II. Purpose
The purpose of this report is to discuss the feasibility of Creative Commons licenses as a
solution to increase the interoperability of datasets across the different open data portals in
Canada. Presently, open data licenses applied to Canadian open data portals are non-
standardized and vary greatly from web portal to web portal. The incompatibility between the
terms of different licenses often poses a major barrier to data users who need to combine
data from multiple sources. Creative Commons licenses, as an international standard for
openly sharing works, elicit a potential avenue to help address these interoperability barriers.
The analysis within this report seeks to study feasible routes for data providers to adopt
Creative Commons licenses or attain interoperability with them, while still addressing the core
needs and risk mitigation strategies of data providers.
III. Methodology
CIPPIC hosted a round-table for data providers at a Creative Commons salon held in Ottawa
on March 30, 2012.1 This conversation provided an initial opportunity to discuss the
possibilities for Creative Commons licenses for Canadian data. It allowed the author to obtain
an initial overview of some of the key issues and barriers facing open data providers.
Subsequent to the round-table, CIPPIC conducted informal conversations with some of the
major providers of open data in Canada: governments bodies. CIPPIC discussed Creative
Commons and open data licenses with representatives at all levels of government (municipal,
provincial and federal). The feedback from these conversations provided insight on the
paramount concerns of government bodies in openly releasing their works online and on the
possibilities for the Creative Commons approach.
This report also builds upon prior knowledge and feedback that CIPPIC has received through
participating in previous consultations on open data licenses.
1 CIPPIC, “CC Salon Ottawa on Open Data” (2012), <http://www.opendatasalon.ca/> (event website).
4
IV. Background
A. Open data in Canada
The concept of “open data” refers to data made freely available in a widely accessible
manner. To accomplish this goal, open data is generally released online under a permissive
license that allows anyone to reproduce, adapt, and redistribute the data. Although the
private sector sometimes releases open data, the open data movement most often centres
around the practice of government bodies openly releasing public sector information.
The citizen-led initiatives that often promote open data espouse the benefits that open data
can increase government transparency by allowing citizens to engage in their own analysis of
government activities, it can maximize the efficient use of government resources by allowing
citizens to re-use the work of public servants, and it can foster citizen participation through
everyone building and benefiting from innovative and interactive software applications that
utilize the data.2
B. Municipal Open data
The open data movement has consistently and continually spread amongst Canadian
municipal governments since 2009. The City of Vancouver was the first government body in
Canada to formally endorse the principles of open data, passing a motion in May 2009 to
support “Open and Accessible Data – the City of Vancouver will freely share with citizens,
businesses and other jurisdictions the greatest amount of data possible while respecting
privacy and security concerns”.3
In 2009, the City of Nanaimo launched the first Canadian open data portal to allow citizens to
readily and freely access government data. 4 The City of Vancouver soon followed,
implementing their open data motion with the unveiling of their own open data portal. 5 The
2 See e.g. Dominique La Haye, “La Ville d'Ottawa compte devenir plus transparante” LeDroit (1 March 2010),
online: <http://www.lapresse.ca>; MontréalOuvert, “Mission Statement” (accessed May 20120),
<http://montrealouvert.net/>.
3 City of Vancouver, Motion B2.2, “City of Vancouver Motion B2-2: Open Data, Open Standards and Open
Source” (21 May 2009).
4 Carlito Pablo, "City of Vancouver could open data for all" Georgia Stright (10 September 2009),
<http://www.straight.coml>.
5 City of Vancouver, "Vancouver Launches Open Data Catalogue" (15 September 2009),
<http://data.vancouver.ca>.
5
City of Toronto then followed suit in the same year.
This trend of municipalities gained further momentum in 2010, with the cities of Edmonton,
Ottawa and Calgary establishing their own portals to endow citizens with open access to
government data.6 Today, well over a dozen municipal governments have embraced open
data and are actively publishing municipal data on their websites.
Municipal open data web portals release data such as maps of streets and parks, transit
routes, transit schedules, electoral boundaries and city budget information. 7 Making use of
this data, citizen software developers and small businesses have created a plethora of
websites and mobile phone applications to make the data more accessible to the broader
public. “Apps” and websites now exist to help determine waste disposal and recycling
schedules, to obtain transit schedules, to locate skating rinks, and even to help promote and
retrieve information on municipal elections.8
C. Federal Open Data
The Government of Canada launched a pilot open data portal in March 2011. 9 Particularly
strong in geospatial data, this portal offers more than 272 000 datasets. 10 Users have actively
started using this service, downloading more than 100 000 datasets since the portal's launch
last year.11
The federal government also recently released “Canada's Action Plan of Open Government”
in which Open Data and the government's open data portal feature prominently as high
priorities. The Government of Canada committed to expand the number of datasets over the
next year and then roll out improved data standardization and a “next generation platform”
6 City of Edmonton, "Open Gov" (accessed May 2012), <http://www.edmonton.ca/>; CBC News, "Ottawa open
data site launched" (12 May 2010), :<http://www.cbc.ca>; City of Calgary, "Public Data Catalogue now
available on Calcgary Online Store" (30 September 2012), <http://www.calgarycitynews.com/>;
7 See e.g. City of Ottawa, “Data Catalogue”, <http://www.ottawa.ca/>; City of Vancouver, “Data catalogue”,
<http://data.vancouver.ca/>.
8 Luke Closs, "About ReCollect" (accessed May 2012), <http://recollect.net> [waste disposal & recycling];
Edward Keenan, "Toronto transit app Rocket Radar expands to 4 US cities, adds 1 to the team" Yonge Street
(30 November 2011) [transit schedules]; Jennifier Kavur, "How Hack-a-Thon winners used Toronto open
data" (22 Sep 2010), <http://itworldcanada.com> (municipal election information).
9 Canada, Treasury Board Secretariat, “Minister Day Launches Open Data Portal” (17 March 2011),
<http://www.tbs-sct.gc.ca>.
10 Canada, “Canada's Action Plan on Open Government” (2012), <http://www.open.gc.ca/> at 3.
11 Ibid.
6
over the subsequent two years.12
D. Provincial Open Data
Open data initiatives within provincial governments have also gained momentum recently. In
July 2011, the Government of British Columbia opened Canada's first provincial open data
portal.13 In addition to offering many datasets, B.C.'s portal also goes further to offer users a
wide variety of government-created “Apps and Services”. 14 These apps offer web interfaces
where citizens can browse and search data in different ways that are appropriate to the data
being accessed, thereby increasing the accessibility and usability of the data to the general
public.
Other provinces are also considering open data portals. In Quebec, a parliamentary task
force on Web 2.0 released a report in May 2012 with a first and foremost recommendation to
establish an open data portal where citizens can access government data in free and open
formats.15
V. Creative Commons Licenses
Although no government data portals in Canada presently use Creative Commons licenses,
these licenses are popular for government open data portals in other jurisdictions. The
benefits they can provide merit careful consideration.
A. Overview of Creative Commons
Creative Commons in]s a non-profit organization that maintains and provides a free suite of
legal tools to help enable the sharing of content and knowledge. Foremost, a set of standard
licenses allows authors to readily apply a “some right reserved” license in replacement of the
default “all rights reserved” position of copyright law.
Founded in the U.S. in 2001, Creative Commons has since evolved to span the globe. 16
Creative Commons affiliates in more than seventy jurisdictions worldwide work to provide
12 Ibid. at 8.
13 BC, DataBC Team, “The View from Day Two” (20 July 2012), <http://blog.data.gov.bc.ca>.
14 BC, DataBC, “Apps & Services” (accessed May 2012), <http://data.gov.bc.ca>.
15 Quebec, Groupe de travail sur le Web 2.0 du député Henri-François Gautrin , “Gouverner ensemble
Comment le Web 2.0 améliorera-t-il les services aux citoyens? ” (2012) at 71.
16 Creative Commons, “History” (accessed May 2012), <http://creativecommons.org/>.
7
legal expertise, build communication channels with the public, and promote the organization's
mission.17
Creative Commons licenses are particularly popular online, where the “some rights reserved”
approach has proved conducive to the rapid sharing that takes place on the internet. These
licenses have quickly become a worldwide standard for sharing content, allowing authors to
easily release works into the digital commons where users can legally download the works,
adapt them, and re-share them. Overall, there are more than 400 million works licensed
under Creative Commons.18
The core groups of these Creative Commons license adopters are artists and musicians,
authors of open education resources, and, increasingly, government providers of open data.
B. Creative Commons in Canada
Canada was one of the first countries outside of the United States to become involved with
Creative Commons licensing. In 2004, CIPPIC and the Law & Technology Program at the
University of Ottawa's Faculty of Law, Common Law Section, pioneered the “iCommons
Canada Project” and introduced the first localized version of the Creative Commons license
suite. This localized “port” was customized to reflect the nuanced differences of Canadian
copyright law.
The most recent Canadian port of the Creative Commons license suite aligns to version 2.5.
Released in 2006, this version of the license still attracts widespread use within Canada.
However, several clarifications and improvements made to the Creative Commons version 3.0
suite are not found in this older version. For this reason, some Canadian authors also use the
international “unported” version 3.0 licenses.
In March 2012, CIPPIC, BCcampus and Athabasca University formed a multi-stakeholder
coalition to join the Creative Commons Affiliate Network as “Creative Commons Canada”.
They now act as the official affiliate of Creative Commons in this jurisdiction. With the recent
increase in popularity of Creative Commons licenses for data and a renewed focus on data in
the ongoing development of a version 4.0 license, a stated focus of Creative Commons
Canada is to explore and promote the ways in which Creative Commons legal tools can assist
17 Creative Commons' “CC Affiliate Network” (accessed May 2012), <http://creativecommons.org/>.
18 Eric Steuer, ed., The Power of Open (2010), <http://thepowerofopen.org> at 42.
8
data providers.19
C. Use of Creative Commons Licenses in Open Data Portals
Many governments presently use Creative Commons licenses for data. For example, the
Creative Commons Attribution (CC-BY) license is the default and most common license for
datasets found on the Australian open data portal and the New Zealand open data portal. 20 In
addition, many individual departments within both of these governments have adopted CC
licenses. For example, the Australian Bureau of Statistics and Geoscience Australia release
their data under CC-BY licenses.21
However, there are presently no Canadian government data providers actively using Creative
Commons licenses. Indeed, the license space for government data providers in Canada is a
multiplicity of many different licenses, often developed in-house for each specific data portal –
and often incompatible with one another. As this section discusses, the Creative Commons
license suite could provide a solution to this problem.
D. Benefits of Creative Commons Licenses
Interoperability
The core benefit of Creative Commons licenses is the provision of a widely-accepted
standard that can increase interoperability amongst different datasets. Creative Commons
licenses are the de facto standard for openly releasing artistic works and educational
resources and they are potentially becoming a standard for data. Such a standardization of
license terms is of paramount importance for ensuring interoperability between different
sources of data, allowing users to combine, remix and re-share different datasets.
The base CC-BY license is interoperable with all the other licenses in the Creative Commons
suite. That is, a user can re-license a derivative work that includes a CC-BY work under CC-
BY-NC (non-commercial), CC-BY-SA (share-alike), CC-BY-ND (no derivatives), or any of the
other CC licenses that combine these terms. Unlike many government open data portal
19 Creative Commons Canada, “CC Canada Roadmap” (16 February 2012),
<http://wiki.creativecommons.org>.
20 See Australia, data.gov.au, “All datasets” (accessed May 2012), <http://data.gov.au>; New Zealand,
data.govt.nz, “Browse for datasets”, <http://data.govt.nz>.
21 Creative Commons, “Government” (accessed May 2012), <http://www.creativecommons.org>.
9
licenses that primarily cater to the government context of releasing data, Creative Commons
licenses can be adopted for – and remain compatible with – works from governments,
educational institutions, private sector organizations, and individuals. The licenses can apply
to all copyrighted data, not just government data.
Most importantly, the adoption of a CC-BY licenses makes a dataset interoperable with all
other datasets in the world that fall under the terms of a CC-BY license. The result is
interoperability with an overall repertoire of more than 400 million works worldwide. 22
Although a majority of these 400 million works are most likely not datasets, there is also no
dearth of CC-licensed data. As previously noted, the Australian and New Zealand open data
portals provide most of their data under CC-BY licenses. The U.K. government has also
designed its Open Government License to be interoperable with works under CC-BY
licenses.23
Comprehensibility
Given the widespread popularity of Creative Commons licenses, the license terms are already
familiar to many people. Creative Commons' easily identifiable symbol-system for the core
license terms is immediately recognizable to many users of internet content.
Additionally, for those unfamiliar with the license terms, Creative Commons provides tools to
help ensure that anyone can readily understand them, even without having a legal
background. A user-friendly “license deed” accompanies each license and sets out the
essential terms in plain language.
Widely-Approved License Terms
When data providers set out the terms of a license, the decisions often come down to a
choice between a small degree of risk for the licensor versus greater “openness” and flexibility
for the licensee. When Creative Commons drafts its licenses, it holds world-wide public
consultations and considers inputs from both authors and users, from a diverse array of
stakeholder groups. Over the past decade, these consultations and refinements through
several license versions have resulted in the mediation of a fair compromise between all of
22 See The Power of Open, supra note 32.
23 See U.K., National Archives, “Open Government License for Public Sector Information” (accessed May
2012) [UK License]., <http://www.nationalarchives.gov.uk>.
10
these interest groups.
This careful license development process has earned the CC-BY license acceptance as
conforming to the “Definition of Free Cultural Works” and the Open Knowledge Project's
“Open Definition”.24 These recognizable approvals help give users confidence that the data
they access is truly “open”.
Additionally, the license terms are legally sound across the globe. This is an important feature
in the context of online sharing: a dataset published to an online open data portal is not just
published to Canada, but rather it is published to the world. Creative Commons licenses are
written, reviewed and refined by a team of affiliates from more than 70 jurisdictions worldwide.
This team of legal experts ensures that the licenses are valid and interoperable everywhere.
Without the expenditure and legal risk inherent in developing a new license, any data provider
can simply apply well-developed Creative Commons license.
The terms of Creative Commons licenses also lend a data provider the certainty of having
been tested in courts and upheld in several jurisdictions, including Australia, Belgium, the
Netherlands, Germany and Spain.25
E. Potential and Perceived Drawbacks of Creative Commons Licenses
Scope of the License is Limited to Copyrighted Works
A copyright holder, including a government institution, can apply a Creative Commons license
to any copyrighted work. This includes any copyright-protected content that resides in a
dataset or database (such as an individual document, photograph or map). It also includes a
copyright-protected database itself. Unlike other jurisdictions where a separate license is
sometimes necessary to deal with unique (“sui generis”) database rights, Canadian copyright
law affords similar protections to “compilations” as it does to other copyrighted works. 26
However, it is important to note that there are some data to which Creative Commons
licenses do not apply. The terms and restrictions within a CC license only apply to works
protected by copyright. Therefore, in Canada, the terms will not apply to pure “facts”, nor to
24 Definition of Free Cultural Works, “Definition” (accessed May 2012), <http://www.freedomdefined.org>; Open
Knowledge Project, “Conformant Licenses”, (accessed May 2012), <http://opendefinition.org/>.
25 Creative Commons, “Case law” (1 December 2011), <http://wiki.creativecommons.org/>.
26 Copyright Act, RSC 1985, c C-42, s. 2.
11
works in which no author invests any non-trivial “skill and judgment”. 27
This result is primarily a consequence of the “originality” requirement in copyright law. 28 Like
most other jurisdictions, the Canadian government has made a public policy choice to not
afford copyright protection to facts, thus keeping them in the public domain. This policy
reflects the fact that everyone benefits from the broad dissemination and re-use of facts and
scientific data. Even a “some rights reserved” approach of Creative Commons licenses could
prove too restrictive and would not be an appropriate limitation on public domain facts.
On the basis of this policy choice, this limitation of Creative Commons licenses should not be
seen as highly problematic. This limitation is identical to that found in many other licenses.
For example, the terms of the Government of Canada's open data license at data.gc.ca
similarly only apply to “Data”, which the license defines as “data, metadata and related
documentation expressed in a form that gives rise to Intellectual Property Rights” [emphasis
added].29 The U.K. Open Government License likewise only applies to “Information”, which
the license defines to mean “information protected by copyright or by database right”. 30
In some other Canadian open data portals, the terms of use do attempt to stretch wider than
the scope of copyright law alone.31 However, in these cases, the additional scope beyond
copyright relies on contract law and, in this case, the terms also become more difficult to
enforce. Unlike the property-like scope of copyright law, these contractual obligations only
apply to the users which agree to them. The principle of privity of contract establishes that
contractual obligations only extend to the parties of the contract. Therefore, while the terms of
use at these data portals may apply to the original website visitors, they will not necessarily
apply to anyone else to whom the data is redistributed. 32
Thus, Creative Commons licenses, like many other licenses, attempt to strike a fair and
easier-to-enforce balance of applying only to the breadth of copyrighted material within open
27 CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 at para. 16.
28 Copryight Act, s. 5(1) (“in every original literary, dramatic, musical and artistic work”).
29 Canada, “Government of Canada Open Data License Agreement” (accessed May 2012),
<http://www.data.gc.ca> [Government of Canada License].
30 UK License, supra note 27. Also note that the “database right” refers to the U.K.'s sui generis protection for
databases, which does not exist in Canadian law.
31 See e.g. City of Vancouver, “Open Data Catalogue Beta v2: Terms of Use” (accessed May 2012),
<http://data.vancouver.ca> (the terms broadly apply to “datasets” and to anyone “accessing the datasets”).
32 To establish a claim in spite of privity, a data provider would need to rely on a principle such as tortious
inteference with contract; however, no Canadian court has yet recognized such a claim in a website terms of
use context.
12
data portals, leaving facts and unoriginal works to the public domain (where users have a high
degree of freedom with these building blocks of knowledge). This balance does leave pure
facts and unoriginal works outside of the purview of the license scope.
Perception as a Non-Data License
Several data providers with which CIPPIC consulted noted that they dismissed Creative
Commons licenses relatively early on in their license selection processes, based on a
perception that they are not “data licenses”. However, aside from the often-mirrored
limitation that the licenses only apply to copyrighted works, this issue is a problem of
perception alone: Creative Commons licenses are amenable to data and commonly used for
dataset licensing.
This perception likely arises from several difficulties in the way Creative Commons licenses
have dealt with the sui generis database rights (SGDRs) that exist in the European Union.
Creative Commons licenses were originally designed only to address copyright, not other
rights such as SGDRs. Although the most recent version 3.0 license suite waives SGDRs in
the ported license for the European Union, it still does not positively license SGDRs on par
with copyright.
In fact, this lack of SGDR licensing is the core reason that the U.K. developed its own Open
Government License rather than simply adopting a Creative Commons license:
The UK was able to draw on the work of public sector colleagues in Australia and New
Zealand. Both countries have launched policies designed to open up government and make
PSI [Public Sector Information] more readily available for re-use. They did this through the
adoption of Creative Commons model licenses. The UK, however, decided to develop a
new license -- the Open Government Licence. The main reason for this was that none of the
existing Creative Commons licences extended to the licensing of works protected by the
database right.33
Creative Commons is looking to further address the European-context concerns in
the next version of the license suite, which is presently under development. In the
initial draft, the proposal is to directly license any existing SGDRs in the same
manner as copyright.
33 UK, The National Archives, “The UK Approach to Simple and Streamlined Licensing” (Jim Wretham, 14 April
2011) [UK Approach] at 1 .
13
However, in Canada, this issue is moot. Our legal context in this respect is much
more akin to the legal context of Australia and New Zealand: there are no SGDRs.
Any Canadian government body can readily apply a Creative Commons license to
data in the same manner that the Australian and New Zealand governments
presently do so, without the need to license, waive or otherwise address SGDRs.
Some of the misconceptions of Creative Commons as a non-data license may also
arise from an out-of-date FAQ published by the Open Data Commons which states
that Creative Commons does not itself support Creative Commons licenses for
data.34 On the contrary, it appears that Creative Commons has now worked with
data providers for quite some time and actively endorses and supports the use of CC
licenses for data.35
Perceived Loss of Control over Data
In conversations, data providers indicated a paramount concern of losing control over
the license and of their data. Governments are rightly concerned about any such
loss of control: government organizations hold enormous amounts of sensitive
personal information on their citizens.
To address and alleviate such concerns, Creative Commons licenses are crafted to
allow the licensor to retain a high degree of control over the subject matter of the
license. A licensor is free to specify the content which the license does or does not
cover.
In this manner, any data provider can protect sensitive personal information using the
exact same approach as the U.K. Open Government License, the B.C. Open
Government License and the City of Toronto Open Data License. 36 A data provider
can simply not license this information. For example, in conjunction with a Creative
Commons license, a government may wish to use a stipulation such as the following:
34 See Open Data Commons, “Licenses FAQ” (accessed May 2012), <http://opendatacommons.org> (“Why
Not Use a Creative Commons (or Free/Open Source Software License) for Data(bases)?”).
35 See e.g. Sarah Hinchcliff Pearson, “CC Releases New Data FAQs” (11 January 2012),
<http://creativecommons.org>.
36 UK License, supra note 27; BC, DataBC, "Open Government License for Government of BC Information"
(accessed May 2012), <http://data.gov.bc.ca>; City of Toronto, “Open Data Licence for City of Toronto
Datasets” (December 2011), <http://toronto.ca/open>.
14
All data – including their contents, metadata, and overlying dataset structures – are licensed
under a Creative Commons Attribution 3.0 License, except for:
• personal information in the data;
• third-party rights the licensor is not authorized to license; and
• data subject to other intellectual property rights, including patents, trade-marks and
official marks, and design rights.
Of course, the best place for control of personal information is at the point where the
government releases data. It hardly requires stating that governments should never
release data containing personal information on an open data portal, nor under an
open license. However, if and when a government inadvertently releases such data,
a constriction of the scope of a Creative Commons license could help prevent further
dissemination.
As for control of the license itself, it is worth noting that the licensor remains in full
control of whether to upgrade to any future versions of a Creative Commons license.
There are no automatic upgrade or automatic compatibility provisions in CC-BY
licenses. Moving to a new version requires explicit re-licensing under any new
license terms.37 Thus, in licensing under Creative Commons, the licensor always
knows the exact terms under which a work is placed and these terms do not change.
The licensor also “reserves the right to release the Work under different license terms
or to stop distributing the Work at any time”, giving the licensor the freedom to always
move to a different license (though the Creative Commons license will persist for past
distributions).38
VI. Use of the CC0 Public Domain Dedication in Open Data Portals
The Creative Commons CC0 Public Domain Dedication aims to place a work as close as
possible into the worldwide public domain. Although there is no case law in Canada
addressing the legal issue of whether an author can assign copyright at large to the “public
domain”, rather than to a specific person, CC0 addresses this legal gray area through a three-
tier approach.
37 See e.g. Creative Commons, “Creative Commons Attribution 3.0 Unported” (accessed May 2012),
<http://creativecommons.org> [CC-BY] (contains no automatic upgrade clauses).
38 Ibid.
15
First, CC0 establishes a full waiver of copyright and related rights. 39 This is most likely
effective under Canadian law, but may not be fully enforceable in other jurisdictions, such as
where a licensor cannot waive moral rights. Second, where such a waiver is ineffective, CC0
falls back to a fully permissive copyright license. Third, CC0 additionally falls back to a non-
assertion of rights.40
For scientific data, the Creative Commons organization recommends the CC0 Public Domain
Dedication in preference to the ordinary Creative Commons licenses. 41 Creative Commons
also notes that there are important reasons for governments to consider CC0, such as
increased government transparency and removing all uncertainty for potential users of the
data.42
The CC0 Public Domain Dedication is similar to the Open Data Commons Public Domain
Dedication and License (ODC-PDDL). A government provider can use either the PDDL or
CC0 to substantially the same effect. While some government internationally, such as
Norway, have adopted the CC0 waiver, the PDDL was the first first public domain dedication
to gain traction in Canadian open data portals: the City of Surrey currently applies the ODC-
PDDL to its open data.43
In Canada, the CC0 license has also found uptake within some non-government data
providers. For example, Canadensys, a project and website operated by the Université de
Montréal Biodiversity Centre, publishes their biological specimen data under CC0. 44
A. Benefits of the CC0 Waiver
Many of the same benefits which apply to Creative Commons licenses also apply to the CC0
Public Domain Dedication. In addition, by even further removing copyright restrictions in a
work, CC0 maximizes flexibility for the data user. Most importantly, this also maximizes
interoperability: a work under a CC0 waiver is interoperable with nearly any other work – even
works under much more restrictive license terms.
39 Creative Commons, “CC0 1.0 Universal” (accessed May 2012), <http://creativecommons.org> [CC0 Waiver].
40 Ibid.
41 Mike Linksvayer, “CC and data[bases]: huge in 2011, what you can do” (1 February 2012),
<http://creativecommons.org>.
42 Creative Commons, “Data” (23 April 2012), <http://creativecommons.org>.
43 City of Surrey, “Download Open Data” (accessed May 2012), <http://surrey.ca/>.
44 Canadensys, “Data Publication” (accessed May 2012), <http://http://www.canadensys.net>.
16
CC0 also greatly reduces the necessity of a user to conduct a detailed study of license terms,
or obtain legal advice, on how to provide attribution, modify a dataset, or combine a dataset
with other works. Under CC0, no attribution is required and a user can confidently engage in
almost any ordinary use or re-use of a dataset under the wide set of permissions granted.
B. Potential and Perceived Drawbacks of the CC0 Waiver
A concern that data providers expressed to CIPPIC with respect to CC0 was, again, a
perceived loss of control over the data. As previously discussed with respect to ordinary CC
licenses, this concern has merit.45 Unlike CC-BY and other licenses, the CC0 does not even
have a termination clause that could come into effect upon breach of the license terms (and
there exist few terms that could even be breached). 46
Still, risk-adverse lenses of government legal teams may tend to over-state this risk. There is
only a small degree of risk for legal liability and the government can continue to protect
personal information in the same manner as other commonly-applied licenses.
Risk of Liability
Neither the Norwegian government, nor the City of Surrey, has yet faced any legal action in
respect of their data released under CC0 or PDDL. As well, even with the wide breadth of
public domain data released in the U.S. – where there is no crown copyright and all
government-produced data is in the public domain – the authors could find no evidence of any
lawsuits stemming from open data.
The CC0 is also not without a disclaimer. The terms specifically identify that the author
provides the work “as-is” and without any representations or warranties of any kind. 47 This
language helps to curtail any possible claim based on a statutory or implied warranty. 48
Government marks
Some open data licenses presently in use in Canada aim to protect government marks with
an explicit ban on using government marks. For example, the Government of Canada's open
45 Ante at 14.
46 CC0 Waiver, supra note 12.
47 Ibid.
48 See e.g. Hunter Engineering Co. v. Syncrude Canada Ltd., [1989] 1 SCR 426.
17
data license bars reproduction of “the name, crest, logos or other insignia or domain names of
the Licensor or the official symbols of the Government of Canada, including the Canada
wordmark, the Coat of Arms of Canada, and the flag symbol”. 49
Although the CC0 provides no such restriction, it achieves much the same effect by only
applying to copyright and associated rights, with a term in the CC0 even explicitly clarifying
that no “trademark or patent rights” are affected. That is, CC0 does not waive or license any
trade-mark rights. Government marks will remain strongly protected under the “official marks”
provisions of s. 9(1) of the Trade-marks Act.50
Personal Information
As with the regular Creative Commons licenses, CC0 leaves the licensor with full control over
the subject matter of its terms A data provider can even apply a restriction similar to the one
previously discussed for CC-BY in order to keep personal information and other non-
releasable material outside of the CC0's scope:
All data – including their contents, metadata, and overlying dataset structures – are
released under the CC0 1.0 Universal Public Domain Dedication, except for:
• personal information in the data;
• third-party rights the releasor is not authorized to waive or license; and
• data subject to other intellectual property rights, including patents, trade-marks and
official marks, and design rights.
Additionally, CC0 does not waive privacy rights. Both statutory and common-law privacy
protections continue to apply to datasets released under CC0.
VII. Interoperability with Creative Commons Licenses
Dataset users often require the ability to combine datasets from different cities, provinces
and/or countries. Unfortunately, the lack of interoperability between dataset licenses in
Canada means that users are often unable to do so, as many of the presently-used open data
licenses do no permit such mixing. In fact, the popular “share-alike” clause that currently
subsists in many municipal licenses makes these datasets entirely non-interoperable with
almost any other license – including with other municipalities that use even a slight variation
49 Government of Canada License, supra note 29.
50 Trade-marks Act, RSC 1985, c T-13, s. 9(1).
18
of the original license terms.51
With each new open data portal that uses a custom, in-house license for its data, the problem
of “license proliferation” only increases. Not only are many different data licenses non-
interoperable with one another, but it can become very difficult for dataset users to
understand their obligations and risks under all of these different license regimes.
As previously discussed, one way to address interoperability problems is for data providers to
apply the CC0 waiver or a standard Creative Commons license. Works under these licenses
are interoperable with each other because they come under the exact same license terms.
As well, in addition to achieving the previous-discussed benefits, applying an already
widespread CC license mitigates license proliferation.
However, where a Creative Commons license will simply not work for a data provider, there
are other options to still achieve interoperability with CC-licensed works:
• Adoption of a license with terms carefully crafted to attain interoperability with CC
licenses (the U.K. approach); or
• Adoption of a license with an explicit interoperability provision.
With more than 400 million works licensed under Creative Commons, a dataset's
interoperability with Creative Commons under one of these methods would open up a wide
expanse of works with which a user could mix and remix a dataset. 52
A. Definition of Interoperability
Before proceeding to discuss options for increasing interoperability, it will be useful to briefly
set out several definitions on the types of license interoperability.
For the purposes of this report, we define the type of compatibility between licenses as
follows:
• Incompatible: A new work that includes material under License A and License B
cannot be redistributed under any license, due to conflicting obligations for
redistribution.
51 See David Fewer & Kent Mewhort, "Analysis of Share-alike Obligations in Municipal Open Data Licenses"
(12 October 2011), <http://www.cippic.ca> (CIPPIC's analysis on the interoperability problems associated
with share-alike).
52 The Power of Open, supra note at 18.
19
• Intersective compatibility: A new work that includes material under License A and
License B can be redistributed only under the combined terms of License A and
License B. Downstream users only receive the rights that intersect between the two
licenses and they are bound by the union of the obligations under the two licenses.
• One-way compatibility: A new work that includes material under License A and
License B can be redistributed under License A, but not License B.
• Two-way compatibility: A new work that includes material under License A and
License B can be redistributed under License A or License B (or can be dual-licensed
under each).
Interoperability involves several other nuances, such as differences in the scope of
interoperability. This depends on factors such as whether a new work is a derivative work or
merely a compilation; however, a more detailed examination of these issues is outside of the
scope of this report.53
B. Making License Terms Interoperable with Creative Commons
The U.K. carefully ensured that the terms of its U.K. Open Government License did not
conflict with CC-BY and, as non share-alike licenses, both the CC-BY and U.K. Government
License allow a “piling on” of license obligations. 54
The U.K. Open Government License and the CC-BY therefore attain intersective
compatibility. When users create compilations or derivative works that include both datasets
under the U.K. Open Government License and datasets under CC-BY, they can redistribute
under the combined terms of both licenses.
In the author's opinion, the U.K. license does not achieve the higher interoperability with CC-
BY of either either one-way compatibility or two-way compatibility – and it is unclear whether
the drafters aimed for either of these higher degrees of interoperability. Slight differences in
the wording and scope of obligations result in the license obligations not entirely overlapping.
For example, the U.K. Open Government License includes an obligation to “ensure that you
do not mislead others or misrepresent the Information or its source”; however, there is no
53 CIPPIC has plans to further study interoperability issues in a future report.
54 UK Approach, supra note 17 at 1.
20
directly parallel provision in CC-BY. 55 On the other hand, the CC-BY license requires
attribution of the title of a work where supplied, but no such obligation exists under the U.K.
Open Government License.56
However, the close alignment of the majority of the license terms does make it easier for
users to comply with both sets of obligations. For example, a core requirement of both
licenses is a flexible attribution obligation. The CC-BY license requires users to attribute the
party or parties which the licensor designates for attribution and “to the extent reasonably
practicable, the URI57, if any, that Licensor specifies to be associated with the Work”. 58 The
U.K. license similarly requires users to “acknowledge the source of the Information by
including any attribution statement specified by the Information Provider(s) and, where
possible, provide a link to this licence”.59 Therefore, users can list both attributions in a similar
manner.
In order to give downstream users notice of their actual obligations, the author of a work
derived from works under both licenses needs to provide notice of all of the combined
obligations. A simple notice to this effect is likely sufficient – for example, if re-distributing the
derivative portion of the work under CC-BY:
This work is licensed under the Creative Commons Attribution 3.0 License. This work
contains, or is derived from, work licensed under the U.K. Open Government Licence v1.0,
the terms of which continue to apply.
Interestingly, other provisions of the U.K. license carefully avoid piling on too many obligations
that could conflict with the terms of other open licenses and thereby reduce the license's
general interoperability. Foremost, rather than create obligations such as forbidding the use
of personal information, the license simply pulls this material outside of the license scope with
a statement that the license “does not cover the use of personal information (amongst other
categories of information). This way, if the government inadvertently releases personal
information, it can still try to claw it back through an assertion of copyright; at the same time,
no further restriction is introduced into the license itself.
55 UK License, supra note 23.
56 CC-BY, supra note 37.
57 A Uniform Resource Identifier (URI) is an identifier pointing to a resource – most often, this is a web address
such as ”http://www.cippic.ca”.
58 Ibid.
59 UK License, supra note 23.
21
As a final step to increase interoperability, the post-amble to the license states:
These terms have been aligned to be interoperable with any Creative Commons Attribution
Licence, which covers copyright, and Open Data Commons Attribution License, which
covers database rights and applicable copyrights.
This statement beneficially provides courts guidance in interpreting the provisions in a way
that does not conflict with CC-BY.
This U.K. approach of ensuring that license terms do not conflict with CC-BY, aligning the
core terms to the obligations in CC-BY, limiting the overall number of obligations in the
license, and including an interpretive aid in the post-amble, all help this license achieve
interoperability with CC-BY.
C. Designating a License as Interoperable with Creative Commons
Although the above U.K. approach for interoperability is commendable and a vast
improvement over no interoperability at all, the intersective compatibility achieved still
imposes a major burden on users. Anyone redistributing a derivative work that incorporates
the two licenses needs to familiarize themselves with both licenses and abide by the legal
obligations of both. Given that understanding and abiding by the terms of even a single
license can require expensive legal advice, this piling on of terms with each additional license
is no small hurdle. With each user further downstream who wishes to use a derivative work
along with additional datasets, license terms continue to pile on and the complexity continues
to increase.
It is possible to create a wider one-way or even two-way interoperability through a similar
approach of carefully constructing and aligning license terms. If the more restrictive of two
licenses entirely encompasses the obligations of the other license, one-way compatibility is
achieved. If the terms entirely overlap, two-way compatibility is achieved.
However, attaining compatibility in this fashion is very difficult in practice. Different wording of
obligations almost always creates slight differences in the scope of rights and obligations.
Generally, this approach only works if the same drafter writes the terms of the two different
licenses. For example, CC-BY is one-way interoperable with CC-BY-SA (Creative Commons
Attribution ShareAlike) because the CC-BY-SA license includes all of the exact same terms
22
that are found in CC-BY.
Therefore, where a licensor desires a higher degree of interoperability with another license,
the best way to achieve this goal is to explicitly allow users to redistribute derivative works
and compilations under the terms of the other license. Several popular open source software
licenses adopt this approach of designating other compatible licenses. For example, the
Mozilla Public License Version 2.0 (MPL2.0) allows users to distribute compilations under an
enumerated list of “Secondary Licenses” (which it defines to include GPLv2, GPLv3 and
others):
If the Larger Work is a combination of Covered Software with a work governed by one or
more Secondary Licenses, and the Covered Software is not Incompatible With Secondary
Licenses, this License permits You to additionally distribute such Covered Software under
the terms of such Secondary License(s), so that the recipient of the Larger Work may, at
their option, further distribute the Covered Software under the terms of either this License
or such Secondary License(s).60
If a data provider adopted the model of the U.K. Open Government License, but
added a clause such as the above, this could increase the license's interoperability
with CC-BY from intersective compatibility to one-way compatibility. For example, the
clause could set out:
If a derivative work or compilation includes information under this license and one or more
works under a Creative Commons Attribution 3.0 (or later) license, You may distribute such
derivative work or compilation under the terms of the Creative Commons Attribution 3.0
license alone.
In this case, users that receive the data directly from the data portal, or receive an
unmodified copy of the data, would need to follow the exact customized terms of the
U.K. Open Government License. However, where a user creates a new work from the
data or creates a compilation that includes the data, that user could then redistribute
the work under the slightly-different terms of CC-BY alone.
VIII. Conclusion
A CC0 (or ODC-PDDL) license provides the most benefits to users through granting
them the highest degree of freedom to use and adapt data from an open data portal.
60 Mozilla Foundation, “Mozilla Public License Version 2.0” (accessed May 2012), <http://www.mozilla.org>.
23
Moreover, CC0 is at least one-way compatible with nearly all other licenses. Although
CC0 may be slightly less protective to the licensor as some other licenses, it still
imparts only a low degree of risk. Licensors can still protect the personal information
of citizens by removing such data from the scope of the license with a specific
statement to this effect.
Where the CC0 approach remains infeasible for a data provider, CC-BY licenses
provide a widely-accepted alternative that still gives users a high degree of flexibility.
Endorsed by Creative Commons as an ideal license for data, CC-BY is recognizable
and understandable to users, widely interoperable, and carefully drafted for legal
soundness.
In other cases where an in-house license is absolutely necessary, a data providers
can still attain many of the benefits of Creative Commons licenses by making the
license interoperable with CC-licensed works. This is the approach that data
providers adopted for the U.K. Open Government License, the B.C. Open
Government License and the City of Toronto Open Data License.
Although this last approach achieves minimal intersective compatibility with CC-
licensed works, a minor improvement to the license terms could achieve a higher
degree of interoperability that would avoid the need for users to navigate the
complexities of piled-on obligations from two different licenses. A specific clause
designating compatibility with CC-BY would beneficially allow users to redistribute a
derivative work or compilation with under the terms of CC-BY alone, thereby reducing
the complexities for downstream users.
24