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Updated Guidelines Encourage Federal Agencies to Publish "License-Free" Data

BY Miranda Neubauer | Thursday, December 12 2013

A group of open government advocates and advocacy organizations have come together to issue updated guidance on how federal agencies can make their documents available in an open and accessible way, seeking to go beyond and clarify open data guidance that the Obama administration had published in May.

As techPresident reported at the time, advocates such as Joshua Tauberer, creator of GovTrack, found some of the language in the memorandum problematic, for the reason that it promotes the use of "open licenses" rather than encouraging agencies to make data available "license free." In a blog post in May Tauberer wrote:

This is a subtle but important distinction. Licenses presume data rights. Open licenses, including open source licenses and Creative Commons licenses, create limited privileges in a world where the default is closed. These licenses create possibilities of use that do not exist in the absence of the license because copyright law, or other law, creates an initial state of closedness ... Most open licenses only grant some privileges but not others, and some privileges come along with new requirements....Federal government data is not typically subject to copyright law, and in this case a license is not needed for the data to be open. Thus the application of a license suggests a change from the open-by-default state of this data to a closed-by-default state where a license is required to open it up.

The World Wide Web Foundation and the Open Data Institute cited the issue in explaining their ranking of the United States in their study of worldwide countries' open data initiatives, suggesting the memorandum could create "confusion about [data's] public domain status" given the U.S. precedent of copyright law not applying to federal data.

Tauberer is the primary author of the new guidance, on which he cooperated with Eric Mill from the Sunlight Foundation, Jonathan Gray from the Open Knowledge Foundation, Parker Higgins from the Electronic Frontier Foundation and Michael Weinberg from Public Knowledge. The document also has the support of the Center for Democracy and Technology, the Free Law Project, the OpenGov Foundation, Carl Malamud, and Citizens for Responsibility and Ethics in Washington.

"The administration's memorandum in May kind of muddled the issue in a number of different ways and gave short shrift to the consensus that had been achieved [regarding Open Data best practices] in the past few years," Tauberer said. "There's been a long tradition in the U.S. that the federal government can't copyright the information it produces," he said. He suggested that the memorandum could "open the door" to copyright and licensing policies, "taking a step back to have the government control the flow of information in ways that nobody had tried to do before," and leading to a "big loophole" especially when it comes to federal contractors.

Tauberer said he personally felt that the "memorandum definition of open data to me is wrong." But he emphasized that the updated guidance is not intended as a contradiction to the White House policy but more as an encouragement with the legal framework allowing agencies to "go even beyond" the default recommended by the White House, as agencies are "struggling to comply with all the open data requirements" and the need to incorporate metadata.

Tauberer said he and the other authors of the guidance were in part encouraged by the reaction to the White House's publication of Project Open Data on GitHub, an online repository of information to help agencies implement the Open Data policy. That publication drew a lot of interest from the open government and developer community, with many choosing to make contributions to the repository. However, Tauberer noted that the project was originally published with a Creative Commons Attribution license. That would in theory mean that if somebody wished to republish the contents of the repository with all the contributions, they would have to follow up with all the contributing authors, creating a "complex situation" for a federal policy document, Tauberer explained. After "nudging" from Tauberer and others, the Office of Science and Technology Policy agreed to publish the repository in the public domain, Tauberer said.

Inspired by that process, Tauberer and his co-authors also worked on and published their guidelines on GithHub, allowing anyone to contribute.

One of the main ideas the authors intend to convey with the guidelines is that the default format for publishing government data should be "license-free" with no copyright restrictions and that agencies should be explicit about it, "to make clear that this is a federal document and is not subject to copyright," he said. In instances where documents do fall under copyright, agencies should either be sure to publish them under the Creative Commons license or if possible waive the copyright domestically and worldwide.

In a blog post announcing the new guidelines, Mill from the Sunlight Foundation notes that the guidelines make it clearer that Creative Commons can apply to software and encourage agencies to figure out the intellectual property status of government works when it's unclear.

Tauberer said he and his co-authors would be eager to work with the administration to incorporate the guidelines into federal policy. Earlier in the fall, the Consumer Financial Protection Bureau followed the guidelines for its "qu" and "eRegs" data platforms, Tauberer noted.

Looking ahead, Tauberer said he would be interested in expanding the initiative to the state-level, echoing Carl Malamud's and others' efforts to make state codes available without copyright.

A spokesperson for the Office of Science and Technology Policy said staff members were currently traveling and referred back to the memorandum issued in May and the opportunities for members of the public to offer feedback through the Project Open Data platform.