Legal openness addresses the conditions of use. In other words, it covers what users are allowed to do with the data.
The default conditions of use for open data are declared by law. The main areas of legislation that impact open data include intellectual property rights and database rights [1, p. 138].
The control of intellectual property rights over data depends on the content of data. These rights affect only original creative works. Data, in most cases, does not satisfy this condition. It usually consists of facts and, according to the law, no one can claim ownership of facts. Moreover, data is not a product of creative work .
In the case of public sector information, it is a product of the pursue of the public task. In such a case, public data may be explicitly declared to be exempt from copyright, which was proclaimed for the US public data in the 1976’s Copyright Law. The baseline here is that, in many cases, data may not be treated as a private property, but more likely as a common good.
The distinction whether there are intellectual property rights associated with data is an important one. The options in this division introduce a completely different default state for data. The assessment of the relation of intellectual property rights is relevant for narrowing down the alternative ways how the rights holders may modify the conditions of use for data.
The impact of database rights on data is restricted by the law that is valid where the data is produced. Of course, local legislations influence intellectual property rights of data as well, however, they tend to be more universal as they are harmonized thanks to a number of international treaties. Sui generis database rights apply especially in the context of the member states of the European Union. In 1996, the EU issued the Directive 96/9/EC on the legal protection of databases . The directive grants rights to the creators of databases, protecting their intellectual contribution to selection and arrangement of the database contents. This directive is now transposed into the legal systems in many EU member countries.
With regard to the described rights, in some cases, open data may be a subject to requirements of both. The content of data may be eligible for intellectual property rights protection and the data as a whole may be entitled to derive its protection from database rights. In such a situation, dual licensing may be applied, providing data content and data structure with different licences that are more appropriate for the given type of licensed work. However, it may prove to be difficult to find a clear boundary distinguishing between the parts of data to be licensed separately. It also raises the barrier to use of the data, since its users need to know the requirements of both licences. Due to these complexities it may be easier to handle the legal variations with a universal waiver.
Possibilities for opening data may also be limited by implied contracts, such as exclusive licence agreements. Data bounded by contracts may be difficult to work with, because users may be either not aware of their existence or they may be found difficult to interpret and abide with, especially for laypersons. The most usable solution for open data would be to have a single legal document that users need to consult in order to know what the conditions of use are, as explicit and unified rules simplify the use of data.
The legal recommendations found in open data principles usually advise to modify the default conditions under which data is available with a legal instrument that amends the conditions on the basis of contract law, using tools such as a licence or a waiver. Such recommendation serves a number of purposes. First of all, it provides explicit and comprehensive conditions of use that are valid for the data in question, shielding the users from the possibly complex and hard-to-interpret law. The second aim is crucial for open data, because this is the way how a previously restricting conditions may be made more open by renouncing some rights.
There are two main types of legal tools used to amend the conditions of use of data: licences and waivers. Licences redefine how data may be used in accordance with the producer’s desires and users’ needs. Licences for open data are discussed in the subsequent section.
Waivers serve to waive rights associated with data. The purpose of legal waivers is to reconstruct the conditions of use that applies to the works in the public domain. Yet in some countries, such as the Czech Republic, waiving intellectual property rights is not considered as a valid legal act. In these countries, works may enter into the public domain only naturally and not with a deliberate action. However, licences may be used to emulate the public domain by explicitly setting the same conditions of use.
Both with law, regulations, licences, and waivers data producers are able to accomplish legal openness. Legal openness is a necessary precondition for achieving technical openness. Data that is technically open (e.g., online and in a structured format) but not legally open (e.g., with a prohibitive licence) is not open at all. Most of the data that is legally open can be made open in the technological respect, such as by screen-scraping, a technique that extracts data from web pages. In fact, increasing technical openness of data is an example of reuse that is made possible by open legal conditions of use. On the contrary, there are no ways in which users of data can achieve legal openness of the data, since only data producers can do that.
- VAN DER SLOOT, Bart. On the fabrication of sausages, or of open government and private data. eJournal of eDemocracy and Open Government [online]. 2011 [cit. 2012-03-15], vol. 3, no. 2, p. 136 — 154. ISSN 2075-9517. Available from WWW: http://www.jedem.org/article/view/68
- MILLER, Paul; STYLES, Rob; HEATH, Tom. Open Data Commons, a license for open data. In BIZER, Christian; HEATH, Tom; IDEHEN, Kingsley; BERNERS-LEE, Tim (eds.). Linked Data on the Web (LDOW 2008): proceedings of the WWW2008 Workshop on Linked Data on the Web, Beijing, China, April 22nd, 2008. Aachen: RWTH Aachen University, 2008. CEUR workshop proceedings, vol. 369. ISSN 1613-0073.
- EU. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. Official Journal of the European Union. 1996, vol. 15, L 77, p. 20 — 28. Also available from WWW: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1996:077:0020:0028:EN:PDF. ISSN 1725-2555