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If rights are not provided, default to GBIF use and sharing agreement? #12

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peterdesmet opened this Issue Nov 8, 2013 · 12 comments

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peterdesmet commented Nov 8, 2013

We are analyzing the rights field in the metadata of GBIF mediated datasets to assess which types of data use licenses are used by GBIF participants. But how to interpret this if the rights field is empty (= not provided by publisher)?

Option 1: Default to GBIF use and sharing agreement

Since these are GBIF mediated datasets, the publisher and user automatically agree with the GBIF share and use agreements. These state:

Users must comply with additional terms and conditions of use set by the Data Publisher. Where these exist they will be available through the metadata associated with the data.

If the rights field is empty in the metadata, can we then assume that there are no additional terms and conditions, and default to the GBIF use and share agreements?

Note: of course, this assessment only holds true if the data are obtained via GBIF, which is a scope we want to analyse.

Or...

Option 2: We cannot assume anything: the license is unclear

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kcranston Nov 8, 2013

Your option 1 seems sound, except for the case where the data was not obtained via GBIF. Without anything in the rights field, re-use by a third party is extremely unclear.

Your option 1 seems sound, except for the case where the data was not obtained via GBIF. Without anything in the rights field, re-use by a third party is extremely unclear.

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gmhagedorn Nov 9, 2013

I agree, Option 1 for GBI provided data.

I agree, Option 1 for GBI provided data.

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peterdesmet Nov 9, 2013

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Thanks for the feedback! We'll discuss this in two parts: obtained via GBIF / obtained from elsewhere (e.g. the data publisher or a third party).

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peterdesmet commented Nov 9, 2013

Thanks for the feedback! We'll discuss this in two parts: obtained via GBIF / obtained from elsewhere (e.g. the data publisher or a third party).

@peterdesmet peterdesmet referenced this issue Nov 9, 2013

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Analysis of parameters #16

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@ghost ghost assigned bartaelterman Nov 12, 2013

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peterdesmet Nov 20, 2013

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@gmhagedorn, @kcranston, for the interpretation of the licenses in the context of the GBIF data use agreement, we will do the following:

For datasets where no license is provided:

use: true
distribution: true
derivatives: true
commercial: ?
attribution: true
share alike: ?
notification: false

For all other datasets (even those that legally do not require attribution):

attribution: true 

As mentioned, we will also discuss the use outside the GBIF context, for which these parameters are not overwritten.

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peterdesmet commented Nov 20, 2013

@gmhagedorn, @kcranston, for the interpretation of the licenses in the context of the GBIF data use agreement, we will do the following:

For datasets where no license is provided:

use: true
distribution: true
derivatives: true
commercial: ?
attribution: true
share alike: ?
notification: false

For all other datasets (even those that legally do not require attribution):

attribution: true 

As mentioned, we will also discuss the use outside the GBIF context, for which these parameters are not overwritten.

@peterdesmet peterdesmet reopened this Nov 20, 2013

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gmhagedorn Nov 20, 2013

I believe this is illogical.

Since data are not copyright protected, the only way to prevent their
commercial use (including by commercial organisation like museums,
universities, etc.) is to grant access to them under a contractual
obligation to use it only for specified purposes AND not to distribute it
further.

You can have

distribution: false
commercial: false

but not your model

Gregor

I believe this is illogical.

Since data are not copyright protected, the only way to prevent their
commercial use (including by commercial organisation like museums,
universities, etc.) is to grant access to them under a contractual
obligation to use it only for specified purposes AND not to distribute it
further.

You can have

distribution: false
commercial: false

but not your model

Gregor

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@gmhagedorn, just so I understand your comment correctly: your understanding is that under the GBIF DUA and without any additional conditions set by the publisher, those data can be distributed and commercially used or not?

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peterdesmet commented Nov 20, 2013

@gmhagedorn, just so I understand your comment correctly: your understanding is that under the GBIF DUA and without any additional conditions set by the publisher, those data can be distributed and commercially used or not?

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@gmhagedorn. Sorry, 3 options: can be distributed/commercially used, cannot, or it is unclear?

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peterdesmet commented Nov 20, 2013

@gmhagedorn. Sorry, 3 options: can be distributed/commercially used, cannot, or it is unclear?

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gmhagedorn Nov 20, 2013

Not sure. I have no conclusion on what the GBIF license requires. I just point out that the ability to distribute it (and I assume without a confidentiality clause, i.e. distribute as in a scientific publications) makes it difficult if not impossible to enforce a "non-commercial" clause.

Not sure. I have no conclusion on what the GBIF license requires. I just point out that the ability to distribute it (and I assume without a confidentiality clause, i.e. distribute as in a scientific publications) makes it difficult if not impossible to enforce a "non-commercial" clause.

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jar398 Nov 21, 2013

Neither adding permissions nor removing permissions (or the appearance of doing either) makes any sense.

You cannot add permissions (or remove conditions) such as 'distribution: true' because you do not have the legal standing to do so.

Technically you have a right to remove permissions (or add conditions) such as 'commercial: false' because a DUA can impose arbitrary requirements on signers - a DUA can insist that someone stand on their head every Tuesday, if it wants to. (A copyright license, on the other hand, can only remove permissions if there's a broader permission to remove them from, which in this scenario there isn't.) But if you remove permissions you might gratuitously take away rights that someone would have had had they not entered into the DUA. They might have been depending on those rights, in fact they may have acquired those rights from the rightsholder, in fact they might be the rightsholder, and signing them away does neither you nor them any good at all, it is meddling in a relationship that is none of your business.

To be quite graphic, suppose that someone makes an occurrence database, and releases it on the web without license, but also makes their living from it through consulting or inclusion in products that they sell. They must never sign a GBIF DUA imposing a noncommercial term, because then they would lose their livelihood! The problem is not specific to NC, but applies to any term or condition.

I'm not a lawyer but may I suggest that these sources merely be marked only "released without license statement" (which is the simple truth, the hypothesis we're considering) and let the buyer beware. I don't think you have any choice. If you're afraid this will scare people off, give a hyperlink to a brief explanation of why you considered it to be OK that the source is included in your collection - that it was publicly readable, its existence was advertised, and you looked for a statement of restriction or policy and found none - or whatever it is you believe about the situation.

Of course you're always free to give advice on how to cite sources and exercise good manners, quite independent of any legal framework. GBIF could have an influence on the community by providing a good example.

jar398 commented Nov 21, 2013

Neither adding permissions nor removing permissions (or the appearance of doing either) makes any sense.

You cannot add permissions (or remove conditions) such as 'distribution: true' because you do not have the legal standing to do so.

Technically you have a right to remove permissions (or add conditions) such as 'commercial: false' because a DUA can impose arbitrary requirements on signers - a DUA can insist that someone stand on their head every Tuesday, if it wants to. (A copyright license, on the other hand, can only remove permissions if there's a broader permission to remove them from, which in this scenario there isn't.) But if you remove permissions you might gratuitously take away rights that someone would have had had they not entered into the DUA. They might have been depending on those rights, in fact they may have acquired those rights from the rightsholder, in fact they might be the rightsholder, and signing them away does neither you nor them any good at all, it is meddling in a relationship that is none of your business.

To be quite graphic, suppose that someone makes an occurrence database, and releases it on the web without license, but also makes their living from it through consulting or inclusion in products that they sell. They must never sign a GBIF DUA imposing a noncommercial term, because then they would lose their livelihood! The problem is not specific to NC, but applies to any term or condition.

I'm not a lawyer but may I suggest that these sources merely be marked only "released without license statement" (which is the simple truth, the hypothesis we're considering) and let the buyer beware. I don't think you have any choice. If you're afraid this will scare people off, give a hyperlink to a brief explanation of why you considered it to be OK that the source is included in your collection - that it was publicly readable, its existence was advertised, and you looked for a statement of restriction or policy and found none - or whatever it is you believe about the situation.

Of course you're always free to give advice on how to cite sources and exercise good manners, quite independent of any legal framework. GBIF could have an influence on the community by providing a good example.

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@jar398, @gmhagedorn, thanks for the feedback. I have decided that I will just present the licenses used by data publishers, and not an interpretation of those in combination with the GBIF DUA (or results based on that interpretation).

I will reference this github issue and mention that the GBIF DUA doesn't solve the situation of having no license, since it cannot add permissions to unlicensed data (it's still buyer beware), only add conditions.

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peterdesmet commented Nov 21, 2013

@jar398, @gmhagedorn, thanks for the feedback. I have decided that I will just present the licenses used by data publishers, and not an interpretation of those in combination with the GBIF DUA (or results based on that interpretation).

I will reference this github issue and mention that the GBIF DUA doesn't solve the situation of having no license, since it cannot add permissions to unlicensed data (it's still buyer beware), only add conditions.

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jar398 Nov 21, 2013

If I may extend this just a little bit, I'd like to ask that GBIF be exceedingly clear about the difference between a copyright license and a DUA. The providers' copyright licenses should be grouped together and marked as such. That material enjoys the benefits of copyright such as automatic applicability without click-through, exemptions such as fair use and "facts are free", expiration, and multiple licensing. You don't get any of these with most DUAs. GBIF's DUA should only impose those conditions that GBIF's data providers require GBIF to impose, according to whatever DUA holds between the provider and GBIF. I understand that some providers require GBIF to impose a DUA, but that should not infect GBIF's treatment of material that does not require a DUA (public domain or copyright protected). In fact, GBIF should require a DUA only when a provider requires GBIF to require one. If a user is accessing non-DUA material at GBIF's site, he/she shouldn't have to sign a DUA.

Ideally every DUA should have a termination clause, too - how do I get out of the contract, once I've entered into it? It should be sufficient to, say, delete all copies of the covered material and notify GBIF.

jar398 commented Nov 21, 2013

If I may extend this just a little bit, I'd like to ask that GBIF be exceedingly clear about the difference between a copyright license and a DUA. The providers' copyright licenses should be grouped together and marked as such. That material enjoys the benefits of copyright such as automatic applicability without click-through, exemptions such as fair use and "facts are free", expiration, and multiple licensing. You don't get any of these with most DUAs. GBIF's DUA should only impose those conditions that GBIF's data providers require GBIF to impose, according to whatever DUA holds between the provider and GBIF. I understand that some providers require GBIF to impose a DUA, but that should not infect GBIF's treatment of material that does not require a DUA (public domain or copyright protected). In fact, GBIF should require a DUA only when a provider requires GBIF to require one. If a user is accessing non-DUA material at GBIF's site, he/she shouldn't have to sign a DUA.

Ideally every DUA should have a termination clause, too - how do I get out of the contract, once I've entered into it? It should be sufficient to, say, delete all copies of the covered material and notify GBIF.

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@jar398, thanks for the explanation. I have referenced this issue and your response to GBIF request in my blog post, but you're of course welcome to add anything you've mentioned here as a comment to the post. If all goes well, it should be published tomorrow. 😅

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peterdesmet commented Nov 21, 2013

@jar398, thanks for the explanation. I have referenced this issue and your response to GBIF request in my blog post, but you're of course welcome to add anything you've mentioned here as a comment to the post. If all goes well, it should be published tomorrow. 😅

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