[cc-community] New Science Commons protocol and the Open Data Commons legal tools

Jordan S Hatcher jordan at opencontentlawyer.com
Tue Dec 18 03:41:06 EST 2007


Thanks for the comments Gavin. They are much appreciated.

On 17 Dec 2007, at 13:36, Gavin Baker wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> Hash: SHA1
>
> The Protocol mentions the "the Science Commons Open Access Data
> trademarks (icons and phrases) and metadata". Do these exist yet?  
> May I
> suggest incorporating the Open Access icon developed by PLoS, seen  
> here:
> <http://www.plos.org/images/banners/b_soa_mar_01.gif> I'm sure PLoS
> would license the icon for the endeavor, and it would help maintain
> visual identity for the OA "brand", including a specific association
> between OA literature and OA data.
>

Science Commons will have to comment on that, but I imagine from a  
branding (and really a legal) standpoint that you want a separate  
mark for compliance with this protocol.  This is because being "open  
access" is a little ill-defined among users and proponents and that  
there is a difference with this protocol -- being so open you no  
longer have formal legal rights over the data -- and other open  
access elements -- like publishing under a CC-BY-NC-ND licence or  
simply having a copy of your article available on the internet.

Having a separate mark makes it clearer exactly what is meant.


>
> I couldn't find a summary of the license behavior. May I suggest  
> this as
> a summary (please correct any inaccuracies)?
>
> The ODC PDDL is a license for data, data sets and databases. It  
> creates
> an equivalent of public domain status in jurisdictions where data or
> databases have some protection in law, and makes explicit the public
> domain status in jurisdictions with no legal protection. It explicitly
> waives any exclusive privileges or claims of the author. As such, it
> does not impose (or attempt to impose) any conditions on the recipient
> of the data or database covered by the license, including any
> requirements to attribution, remuneration, or reciprocation and any
> limitations on use.

Thanks!

>
> Also, the Science Commons Protocol seems to require the waiver of any
> potentially applicable rights (unfair competition laws and contractual
> restrictions are examples named). I don't seem to spot this in the ODC
> PDDL. Am I wrong?


Contractual restrictions are covered in 4.1

4.1 No other contractual conditions. The Rightsholder makes this Work  
available to You without any other contractual obligations, either  
express or implied. Any Community Norms statement associated with the  
Work is not a contract and does not form part of this Document.

The short answer to the unfair competition issue is that after my  
initial research it looks like that most (if not all) unfair  
competition claims would be negated by using this document and making  
the data publicly available.

It is first and foremost important that once the data is placed into  
the public domain that the provider of the data is not in a worse  
position than anyone else that comes upon the data. The unfair  
competition claims that wouldn't be covered by the above I think  
should probably stay in place in order to protect the position of the  
data creator.

Part of the problem is that "unfair competition" in US law  
(presumably what was intended by Science Commons) is a REALLY broad  
term for quite a few distinctly different rights of action. Happy to  
go into this further, but this analysis will be in the forthcoming  
legal FAQ.

Thanks!

~Jordan

_____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
http://www.opencontentlawyer.com/open-data/

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007





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