Unclear, ambiguous, and/or contradictory licensing by public bodies

Open data
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This topic is to collect examples of unclear, ambiguous, and/or contradictory licensing by public bodies.

:warning: This topic does not cover data portals that are either silent on licensing or subject to clear but problematic licensing terms — problematic relative to open science that is.

This topic is for material provided under muddled legal terms. In particular, the concept of “non‑commercial” use carries no clear definition under law. In other cases, established licenses not designed or intended to cover data are applied to datasets and data portals. And in other cases, the underlying open license is invalidated by specifying additional legal restrictions — in such circumstances, the original license grant is normally withdrawn in its entirety.

The following table provides an overview:

Organization Portal or source Local  
European Commission Joint Research Centre  Energy and Industry Geography Lab  post 6
IIASA IAMC 1.5°C Scenario Explorer
NGFS Scenario Explorer		 post 11
International Energy Agency recent IEA reports post 5
UNFCCC website post 2
World Bank Group energydata.info portal post 4
UNEP World Conservation Monitoring Centre World Database of Protected Areas post 3

For background on the legal issues in a European context:

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UNFCCC website

This single posting has been combined from two earlier posting elsewhere on this site by @mrchrisadams. With the first posting added on 22 February 2022. The UNFCCC is the United Nations Framework Convention on Climate Change.

Problem

On the subject of data leakage, this caught my eye.

I can see this page here from the UN — where as part of the IFI project [international financial institutions] there is guidance on listing carbon intensity information energy for appraising investments:

This lists this information here — various standards and guidance:

The terms of service are interesting:

I. Copyright

All use of materials provided on this web site must follow the Terms and Conditions of Use herein, including reproduction or transmission, in whole or in part, in any form or by any means, electronic or mechanical, including photocopying, recording or the use of any information storage and retrieval system. Any exception to this requires permission in writing from the UNFCCC secretariat.

(snip)

All official texts, data and documents, including low resolution webcast transmissions, are in the public domain and may be freely downloaded, copied and printed provided no change to the content is introduced, and the source is duly acknowledged.

Copyright exists for all high-resolution broadcast quality footage and archival audio and video materials of UNFCCC conferences.

In order to find out more about the licensing conditions, find more information here.

Later on though, the page says this in the same terms:

Website usage

A. General

1.Use of this website constitutes agreement with the Terms of Use contained herein.

2.The UNFCCC secretariat (“UNFCCC”) maintains this website (the “Site”) as a courtesy to those who may choose to access the Site (“Users”). The information presented herein is for informative purposes only. The UNFCCC grants permission to Users to visit the Site and to download and copy the information, documents and materials (collectively, “Content”) from the Site for the User’s personal, non-commercial use, without any right to resell or redistribute them or to compile or create derivative works therefrom, subject to the terms and conditions outlined herein, and also subject to more specific restrictions that may apply to specific Content within this Site.

3.The UNFCCC administers this Site. All Content on this Site from the UNFCCC and all Users, whether registered or otherwise, are subject to the present Terms of Use.

I’ve sent an email to the webmaster to ask which ones apply.

Response

Here’s the abridged response from the webmaster at unfccc.int:

The paragraph 2 in our Terms of Use states that any content from our homepage can only be used only for: “personal, non-commercial use, without any right to resell or redistribute them or to compile or create derivative works therefrom”. This applies to all data, documents, etc. which are published on any of our webpages.

I hope this answers your enquiry.

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World Database of Protected Areas

This is a recent favourite of mine which I think also falls under this thread’s category:

From their legal section (highlights are my own):

[…]

No Commercial Use

Neither (a) the WDPA Materials, the WD-OECM Materials and the GD-PAME Materials nor (b) any work derived from or based upon the WDPA Materials, the WD-OECM Materials and the GD-PAME Materials (“Derivative Works") may be put to Commercial Use without the prior written permission of UNEP-WCMC.
[…]

I might be overinterpreting this, but wouldn’t that also include any research results dervied with this dataset?

No Sub-licensing or Redistribution of WDPA, WD-OECM and GD-PAME Data

[…]
You may not redistribute the WDPA, WD-OECM and GD-PAME Data contained in the WDPA, WD-OECM and GD-PAME in whole or in part by any means including (but not limited to) electronic formats such as web downloads, through web services, through interactive web maps (including mobile applications) that grant users download access, […]

However what is forbidden is allowed under certain circumstances:

Publishing the WDPA, WD-OECM and GD-PAME

You may publish the WDPA, WD-OECM and GD-PAME Materials in whole or in part, including on-line, providing (a) the WDPA, WD-OECM and GD-PAME Data are not downloadable and […]

From a technical perspective I’m still confused about when making something available to view is not hosting and providing a download (the data is still transferred). It reminds me a bit of the streaming vs. downloading debate which was ended a few years ago.

It also begs the question how obfuscated and difficult I have to make the download process for users to prevent scraping.

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World Bank Group energydata.info portal

As the Creative Commons CC‑BY‑4.0 increasingly becomes the de facto standard for public interest datasets, there seems to be accompanying efforts to add additional restrictions. Here is one example:

The World Bank Group (WBG), via its energydata.info portal, offers energy sector datasets worldwide, including for Africa. On the surface, it uses CC‑BY‑4.0 licensing. But if you drill down, you find this legal notice (emphasis added):

Copyright: Solar resource data © 2019 Solargis. The data is published in Global Solar Atlas under a Creative Commons 4.0 Attribution International license, CC BY 4.0 with the following mandatory and binding addition: Any and all disputes arising under this License that cannot be settled amicably shall be submitted to mediation in accordance with the WIPO Mediation Rules 3 in effect at the time the work was published. If the request for mediation is not resolved within forty-five (45) days of the request, either You or the Licensor may, pursuant to a notice of arbitration communicated by reasonable means to the other party refer the dispute to final and binding arbitration to be conducted in accordance with UNCITRAL Arbitration Rules as then in force. The arbitral tribunal shall consist of a sole arbitrator and the language of the proceedings shall be English unless otherwise agreed. The place of arbitration shall be where the Licensor has its headquarters. The arbitral proceedings shall be conducted remotely (e.g., via telephone conference or written submissions) whenever practicable, or held at the World Bank headquarters in Washington DC.

A screenshot of the metadata provides more context:

energydata-info.screenshot-20220206t150250z
energydata-info.screenshot-20220206t150250z1100×970 258 KB

Those extra conditions are possibly quite sensible, but would nonetheless appear to be in conflict with provision 2.a.5.B in the CC‑BY‑4.0 license text stating “no downstream restrictions”.

What happens legally in this case? Does the CC‑BY‑4.0 license grant collapse? Are the additional restrictions from the WBG unenforceable? Or is this a legal gray zone? My pick would be that the Creative Commons license is withdrawn.

Nor did I sift through the energydata-info portal to see how prevalent this particular licensing practice is. My suspicion is that this is not an isolated case.

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International Energy Agency use of CC‑BY‑NC‑ND‑3.0‑IGO

The Creative Commons license used by the International Energy Agency also falls into the camp of inappropriate licensing. Some very recent IEA publications have been dual licensed Creative Commons CC‑BY‑NC‑ND‑3.0‑IGO. This license is not open due to the NC and ND qualifiers. But importantly here, this instrument does not remove any 96/9/EC database protection that might be present. And as such, qualifies as a bizarre and inappropriate choice under which to offer the public numerical information.

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JRC’s Energy and Industry Geography Lab

Link: Energy and Industry Geography Lab

image
image722×178 6.3 KB

  • What is “public use”?
  • Which rights to use and publish derivatives / redistribute the datasets do are granted?
  • Does this constitute a license or are just “all right reserved”?
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Quick update on this one.

I had a call with the nice people at the UNFCCC to understand the intention of releasing the data, and the likely licensing options.

I came away with the impression that

a) quite a lot of work had gone into doing various kinds of regression analysis to provide per country figures and
b) the intention was indeed for these to be used as widely as possible

Because there’s been quite alot of work (and I’m definitely not a lawyer here), it sounds like thw work probably would trigger the sui generis database rights, meaning the relatively small subset of numbers they published can be relicensed under a permissive license like CC-BY-4.0 or similar:

Any compiler or “maker” of a database (the term used by the Database Directive) who made a qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents automatically attracts a so-called “sui generis database right”.11 This right was newly introduced in 1996 with the Database Directive. The sui generis database right is similar to copyright but is not granted for creativity but for the financial and professional investment made in obtaining, verifying, and presenting the contents. Hence a database that is structured without creativity but was expensive to make is protected under the sui generis database right, while not being subject to copyright.

The sui generis database right grants the database maker the exclusive right of “extraction and/or re-utilization of the whole or of a substantial part”.

Source: Open data for electricity modeling: Legal aspects

I’ve referred to the [Open data for electricity modeling] paper, but if there are any other resources or papers that might help me make the case to have this data released as openly as possible, I’d be very grateful for them :+1:

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@mrchrisadams The paper you mentioned is very good. In full:

Another option is a gray publication of mine (that I was asked to upload to zenodo and duly did):

  • Morrison, Robbie (6 February 2022). Which open data license? — Release 06. doi:10.5281/zenodo.5987672. 14 pages. Creative Commons CC‑BY‑4.0 license.

These licensing recommendations will not change if the Data Act currently before the European Parliament is passed in its current form. But the introduction of a Data Producers Right for machine‑generated data will make the need to explicitly open license all the more necessary.

Thanks for your efforts with the UNFCCC. The secretariat is located in Germany and I guess that will determine the choice of law? HTH R.

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Thanks for your efforts @mrchrisadams !

Also an update on the UNFCC / WDPA dataset:

I was exchanging emails over the last months with them regarding technical access and licensing. They communicated to me that they hope to be able to make improvements in the future.

I also mentioned the openmod community and that I could probably find a few users in our community should they want to have some user opinions and perspectives during the process.

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Hi folks.

Minor update - I asked about the last meeting:

The IFI TWG, at its last meeting in late May, discussed the conditions of use of IFI grid emission factor database by third parties, and the group decided to make a decision at its next meeting to allow time for members, which is scheduled in the 1st week of July.
We will inform you of the outcome after the meeting.

Best regards,

(person at UNFCC IFI TWG )

My guess is that this might establish a precedent for future decisions around licensing for further use.

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IIASA scenarios databases

Two scenarios databases maintained by the International Institute for Applied Systems Analysis (IIASA) offer non‑open licensing and provide problematic statements claiming 96/9/EC database protection. The databases are:

  • IAMC (ongoing). IAMC 1.5°C Scenario Explorer hosted by IIASA. Integrated Assessment Modeling Consortium (IAMC). Part of the IPCC SR15 report. IAMC is Integrated Assessment Modeling Consortium.

  • IIASA (ongoing). NGFS Scenario Explorer. International Institute for Applied Systems Analysis (IIASA). Laxenburg, Austria. Open access. NGFS is Network for Greening the Financial System.

Both sites apply a “Public License [that] is adapted from the Creative Commons Attribution 4.0 International Public License”. And both sites claim too that “The scenario ensemble is protected by EU Sui generis database rights”.

That database claim is almost certainly incorrect in light of a 2021 European court ruling on such matters (CJEU 2021). Indeed, the changes to the CC‑BY‑4.0 license text appear designed to support any extant 96/9/EC database rights. As such protection is highly unlikely to apply, the easiest solution would be for IIASA to remove the remark claiming database protection and revert to unmodified CC‑BY‑4.0 license notices. Then both the contents and the database itself would become genuinely open and reusable and the content would be legally compatible with other material under CC‑BY‑4.0 licensing (or alternatively with legal provisions that are inbound compatible).

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Just to note I have contacted IIASA in relation to the databases listed above. For some interpretation of the CJEU ruling in 2021, please see: