I _Really_ Don't Know

A low-frequency blog by Rob Styles

Open Data Licensing, An Unnatural Thought

This post originally appeared on Talis' Nodalities blog.

The first steps of the Semantic Web are now a short distance behind us and some organisations are starting to pick up the pace. With more and more data coming online, marked up for linking and sharing in a web of data, perhaps it’s time to look again at the trade-off of different intellectual property rights.

Back in November of 2004 James Boyle published A Natural Experiment in the Financial Times. This piece sees him debating the merits of intellectual property rights over data with Thomas Hazlett and Richard Epstein. His primary thrust is that we should be making policy decisions in this area based on empirical data about the economic benefits one way or another. Something all three protagonists agree on.

Much has changed between 2004 and now, not least our understanding of how the web can affect the way we collaborate, share, communicate; it fundamentally affects the way we live. We chat, we blog, we Twitter, we Flickr and we Joost. Content flows from person to person in unprecedented ways and at unprecedented speeds. This changes the nature of the experiment that Boyle talks about.

If the database right were working, we would expect positive answers to three crucial questions. First, has the European database industry’s rate of growth increased since 1996, while the US database industry has languished? [...] Second, are the principal beneficiaries of the database right in Europe producing databases they would not have produced otherwise? [...] Third, [...] is the right promoting innovation and competition rather than stifling it? Boyle’s first two questions centre around the creation of databases and his third, by his own admission, is difficult to measure. If one of our primary goals for the growth of the Internet is to have a web of data that can be linked and accessed across the globe we may be better served by assessing how companies might make data open.

Boyle asks for, and discusses, the empirical evidence of databases being created in the EU and US. The differences in numbers should provide insight into the economic ups and downs as the EU adopted a robust database right in 1996 while the US ruled against such protection in 1991. I am interested in how we expect the growth of data on the Semantic Web to differ in the two jurisdictions.

Boyle explains that the US Chamber of Commerce oppose the creation of a database right in the US

[The US Chamber of Commerce] believe that database providers can adequately protect themselves with contracts, technical means such as passwords, can rely on providing tied services and so on. And therein lies the rub. Without appropriate protection of intellectual property we have only two extreme positions available: locked down with passwords and other technical means; or wide open and in the public-domain. Polarising the possibilities for data into these two extremes makes opening up an all or nothing decision for the creator of a database.

With only technical and contractual mechanisms for protecting data, creators of databases can only publish them in situations where the technical barriers can be maintained and contractual obligations can be enforced.

We don’t tolerate this with creative works, our photographs, our blog posts and so on. Why would we expect it to make sense for databases? Whether or not it makes sense comes down to whether or not it is beneficial to society. We allow Copyright in order to provide adequate remuneration to be collected by the creator of a work. We allow patents to allow the recovery of development costs for an invention. Which is database right more like?

Patent is a very broad monopoly. If I had a patent on the clock, a mechanical means of measuring the passing of time, nobody else would be able to make clocks. Copyright, on the other hand is much narrower only allowing me to protect the specific design of my clocks. This is where it can get confusing with databases. Database right in the EU is like Copyright. It is a monopoly, but only on that particular aggregation of the data. The underlying facts are still not protected and there is nothing to stop a second entrant from collecting them independently.

Richard Epstein points to this in his contribution

The question is why do databases fall outside [the general principle of copyright], when the costs of compilation are in many cases substantial for the initial party and trivial for anyone who receives judicial blessing to copy the base? In answering this question, it will not do to say, as the Supreme Court said in the well known decision in Feist Publications v. Rural Telephone Service, (1991) that these compilations are not “original” in the sense that it requires no thought to check the spelling of the entries and to put them all in alphabetical order. But that obvious point should be met with an equally obvious rejoinder. If it requires no thought or intelligence to put the information together, then why not ask the second entrant into the market to go through the same drudge work as the first. This is exactly what we see happening with Open Street Map. Ordnance Survey in the UK have rights over the map data they have collected. The protection covers the collection of geospatial data that they have created, they are not granted a monopoly in geospatial data.

This leaves a special case of databases, those which are created at low cost as a by-product of normal business. Examples used in Boyle’s article are telephone numbers, television schedules and concert times. Boyle gives us the answer directly

the [European] court ruled that the mere running of a business which generates data does not count as “substantial investment” enough to trigger the database right. This reminds me strongly of The Smell of Food and the Sound of Coins a folk tale in which a wise judge decides that a restaurateur may charge for the smell of food wafting from his restaurant, however the appropriate price is the sound of coins chinking together.

That a database right may not and should not apply in all cases, and that there is a requirement to restrict anti-competitive practices, does not necessarily extend to the conclusion that a right is not required.

It seems to me that much of the debate around intellectual property rights has focussed on how they are used to keep things closed. Having suggested earlier that we have only the abilities to keep databases locked away or in contrast open them completely, I’d like to consider what it might mean to have a database right for keeping things open.

In response to Thomas Hazlett’s contribution Boyle asks

How many databases are now created and maintained entirely “free” and thus escape commercial directories altogether? There are obviously many, both in the scientific and the consumer realm. One can no more omit these from consideration, than one can omit free software from the software market. This strikes me as a great comparison to consider. Taking one of the most prevalent free software licenses, the Gnu Public License, what might that look like for data?

One of the primary functions of the GPL is that it enforces Copyleft – the requirement to license derivative, and even complimentary, works under an the same license. That is, any commercial software that makes use of GPL code must, under the terms of the license, also be released under the GPL. The viral nature of this license is possible only because of the backing of Copyright.

Without a database right communities have no mechanism to publish openly and still insist upon this kind of Share-Alike agreement.

Consider the impact of this for situations where you you might use the idea of promiscuous copying to maintain the availability of data. Promiscuous copying relies on two things, lots of copies being made and lots of copies being available. Without the necessary licensing in place there is no mechanism with which to compel those who have copies to make those available. Public Domain means, by definition, no restriction - that means I can lock it away again.

Copyleft is just one position along a spectrum where ‘locked away’ and ‘free as a bird’ sit at each end. What the web shows us is that other business models form crucial parts of the eco-system. Epstein picks up on the controlling aspect of Boyle’s argument:

They can control their list of subscribers; give them each passwords; charge them based on the amount of the information that is used, or some other agreed-upon formula; and require them not to sell or otherwise transfer the information to third parties without the consent of the data base owner. Imagine if this were true of Copyright material on the web? It has been, and still is on the occasional site. But mostly copyright owners are starting to see the value of publishing content online and they are underpinning the delivery of that content to consumers with other business models. Without Copyright the types of business that could participate would be reduced.

Epstein goes on to say:

The contractual solution is surely preferable, because general publication will allow for use by others that may not offend the copyright law, but which will block the possibility of payment for the costly information that is supplied. And again, the very heart of the matter. If we are to encourage those who have large databases to make them open, to post them on the Semantic Web, we must provide them with models and solutions that are preferable to technical barriers and restrictive contracts. Allowing them to pick their own position on the spectrum seems to me to be a necessity in that. You can see any form of protection in two lights. When Boyle says

They make inventors disclose their inventions when they might otherwise have kept them secret. I say

They allow inventors to disclose their inventions when they might otherwise have had to keep them secret. That’s why we’ve invested in a license to do this, properly, clearly and in a way that stays Open.

Rob Styles is Programme Manager for Data Services at Talis, a UK company building Semantic Web technologies. Rob Styles is not a lawyer.

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