While not criticising the efforts of the CC team with respect to licences for the creative arena, I believe there are still important issues with respect to licences for data & non-creative works that CC is not addressing as they should, if they intend the licences to be used for a data commons as well.
CC is still focused on creative works and a creative commons (which is not unreasonable), and still fails to address (and I believe actively misinforms) those organisations looking to use CC licences for data.
Even NZGOAL, in its discussion of moral rights, suggests that organisations releasing data respect the
moral rights of authors, and somewhat verbosely accepts that moral rights do not apply to datasets released under CC licences in New Zealand, although I
believe this is somewhat masked in a legalese description of what these rights are that don't really apply.
CC misleads people & organisations considering which licence to use to release data with respect to Moral Rights. The
implication in the licences is that they apply equally to creative
works and data, including user's Moral Rights. This is not a fair or
realistic interpretation of Moral Rights & related Copyright legislation.
In New Zealand, the Copyright Act does not apply to computer works, such as data.
See this guide from the NZ Copyright Council: http://www.copyright.org.nz/html/blob.php/Moral+rights.May2007.pdf?attach=true&document=339&filetypecode=1&fileId=105
which states: "Creators of sound
recordings and computer-related
works have no moral rights under the Copyright Act.".
Where does CC tell you that circumstance is a risk at all?
Why do they not?
In Australia, unlike New Zealand, Copyright can apply to computer works, but only programs, not information (which includes data). Moral rights, however, can only be held by individuals. Most data is released by organisations, not individuals, no moral rights can apply in such cases. See these guidelines from the Australian
Copyright Council, at:
http://www.copyright.org.au/find-an-answer/
http://www.copyright.org.au/admin/cms-acc1/_images/15053623324f42cf09a556f.pdf
http://www.copyright.org.au/admin/cms-acc1/_images/20373146284f39afed9ca39.pdf
There are also substantial differences between Europe & the US with respect to moral rights. In the US, moral rights are only applicable to visual works, and other rights such as copyright & defamation law are deemed applicable instead of moral rights.
Where does CC explain to potential users that data is subject to different legal protection from creative works, and users should consider this before choosing a licence?
The CC4 draft now explicitly allows changes to works:
"making
modifications technically necessary to exercise rights granted under
this Public License is not an Adaptation,"
yet in the arena of data, rather than creative works, such technical modifications can alter or distort data to where actual misrepresentation occurs. For example the loss of precision in data where a 64bit dataset is used on 32bit precision systems, or the simplification of complex, fine scale data to fit a coarser grained application, can significantly alter fine scale trends which may the the main point of interest in these data. Any re-use of such modified data should not be supported, and "moral rights" are generally not available in such cases to defend the rights & reputation of the licensor.
I believe CC is doing data providers a mis-service by informing them differently,
and encouraging them to use licences designed for creative works, based
on legislation which is, partly at least, inapplicable. The law recognises distinctions between data (information) & creative works. Any licence that fails to do the same needs careful consideration before using it.
This is why the UK Govt released a specific Open Government Licence, broadly consistent with CC, but with some important additions. This is why there is an Open Data Commons, quite distinct from a Creative Commons, with an Open Database Licence which recognises that data is not a creative work, is not covered by law in the same way as creative works, and is treated differently by consumers compared to creative works.
All of which suggests that a licence designed for
creative works is not necessarily appropriate for data, and more considered alternatives do exist.
Brent Wood
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