CC 4.0 updated for use with data?

I had a previous post on how Creative Commons licenses aren’t (weren’t?) suitable for licensing data, for several reasons. 

Charles Nepote helpfully commented on that post linking to a December announcement on changes in CC 4.0 related to data licensing.

It appears that CC agreed that past CC licenses were problematic for data use, and are attempting to address that.  Mainly by explicitly addressing ‘database rights’ in addition to copyright — CC licenses legality was previously based on the licensor having copyright in the thing licensed, and the rights to grant licenses and enforce restrictions through copyright. But in many jurisdictions (including the U.S.), there may not be any copyright existing over ‘data’,  but in some jurisdictions (but not the U.S.)  there may (instead or in addition) be certain legal ‘database rights’.

So it looks like CC 4.0 tries to mention database rights to use those as the basis for licensing, in contexts where database rights may exist but not copyright.

Additionally, according to the announcement, CC 4.0 tries to be more flexible with how ‘attribution’ requirements can be complied with, in ways that will make it more reasonable for data uses. I’m not sure if this is represented in the actual license legal language, or just in the FAQ’s and other supporting documents.

I haven’t spent a lot of time looking over the changes myself and have no opinion on how effective or suitable they are.  I continue to have some concerns about data ‘licensing’ in the U.S. where some things we think of as ‘data’ will not be copyrightable (those that are considered by the courts to be mainly ‘factual’ information — which may or may not be what you or I would consider to be ‘mainly factual information’).  And in the U.S., there is no such thing as distinct ‘database rights’ at all.

If you have neither copyright nor ‘database rights’ over data, then you really have no legal ability to enforce restrictions on it’s use at all, and trying to convince people you do anyway is really a form of copyfraud, over-reaching by content ‘owners’ (or controllers) trying to restrict the rights of the social public beyond what is legally intended.  I think we should be encouraging more widespread recognition of existing public rights to use certain things (like data which is not copyrightable) without permission, rather than encouraging content controllers to try and convince people they need permission when the law doesn’t support that.

While the CC data FAQ does  try to recognize this, with statements like “If you are not exercising an exclusive right held by the database maker, then you do not need to rely on the license to mine.”  This is great. As is their stated effort to make sure that “CC license terms and conditions are not triggered by uses permitted under any applicable exceptions and limitations to copyright, nor do license terms and conditions apply to elements of a licensed work that are in the public domain. This also means that CC licenses do not contractually impose restrictions on uses of a work where there is no underlying copyright.”  This is great too!

But CC doesn’t offer much practical guidance on figuring out when this is the case.  Nor is it probably feasible to offer such guidance, as it’s a complicated legal question which can differ by jurisdiction. But I’d rather we were encouraging and supporting people to expand their use of legally unencumbered data, rather than providing tools which encourage treating possibly unencumbered data as if it were legally controlled.

For that reason, I continue to support strongly considering CC0 or equivalent releases or dedications (rather than strictly licenses) for data use, that simply release the data into the public domain in jurisdictions where that’s required, while acknolwedging in some jurisdictions it may not have been required at all; I think it’s better for all of us.

However, I’m glad that CC is at recognizing some of the issues and attempting to address them. Previous warnings about previous versions of CC being unsuitable for data didn’t seem to impede it’s widespread use for data anyway!  It’s definitely worth reading the post about CC 4.0 and open data, as well as the Creative Commons Data Guidance page linked to.

I’m also quite pleased to see in that guidance page that “CC does not recommend use of its NonCommercial (NC) or NoDerivatives (ND) licenses on databases intended for scholarly or scientific use.” — I guess that leaves attribution (BY) and “share alike” (SA)?  As well as recommending against trying to license “some rather than all of the rights they have in a database.” If people stick to these and similar recommendations, using only a “BY” license and expecting the more liberal conceptions of attribution compliance, my concerns will be ameliorated. (“SA” is still very tricky, and could create license incompatibilities where you can’t combine data that at some point came from a CC-SA licensed database with data from other sources with other licenses – if the data is controlled by copyright or database rights in the first place, which it may not be even if originators try to tell you it is!)

In general, I appreciate the intentions of CC towards data with the CC 4.0 licenses, and consider is a step forward, although I’d still strongly advise considering if you can simply allow your data to be used unencumbered rather than attempting to impose restrictions on it’s use — recognizing it may have no legal protection anyway, and it may be difficult to determine whether it does or not, especially in the U.S.  But if you do decide you need to try and impose restrictions, following CC’s advice on how to do this, and using CC 4.0 to do so (preferably just “BY”), seems probably a good way to go.

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