Is ODC-BY a ShareAlike licence?

Open Definition
1

Hi everyone,

Past week several people pointed out that the ODC-BY licence contains provisions that could be interpreted as ShareAlike (thanks to @Luis, @maurizio_napolitano, and @mlinksva) for bringing this to attention.

As Marc Jones (thanks for the pointer) pointed out the ODC-BY requires the distribution of derivative databases under ShareAlike which contradicts the preamble. This is however not mentioned in the licence’s summary text.

In section 4.2 Notices it says: "If You Publicly Convey this Database, any Derivative
Database, or the Database as part of a Collective Database, then You
must:

  • Do so only under the terms of this License

Section 4.4 seems to underline this provision, stating that

“You may not sublicense the Database. Each time You communicate the Database, the whole or Substantial part of the Contents, or any Derivative Database to anyone else in any way, the
Licensor offers to the recipient a license to the Database on the same terms and conditions as this License.”

@maurizio_napolitano pointed out that the Open Data Portal classifies the ODC-BY licence as a ShareAlike licence (see here).

What do other people think (maybe @rufuspollock, @herb, @wolftune can help?) Does the ODC-BY need updating?

Best
Danny

2

I’m not an expert on the ODC-BY, but I would say just reading it now that it is ShareAlike. I don’t see any contradiction in the preamble, if you’re talking about the preamble of the ODC-BY license itself. And I don’t see why it should need updating but I am curious about what the issue is.

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3

Perhaps the issues is that it’s not shown as Share-alike on Conformant Licenses - Open Definition - Defining Open in Open Data, Open Content and Open Knowledge

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4

@herb When it was announced, it was announced as an attribution license (“This makes ODC-BY similar to the Creative Commons Attribution license, but is built specifically for databases.”)

Similarly, the human-readable summary does not list any share-alike properties in the conditions that must be met.

If nothing else, the human-readable summary and the legal code should be in sync.

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5

I guess it depends on how you want to read the preamble if it contradicts. The preamble says “The Open Data Commons Attribution License is a license agreement intended to allow users to freely share, modify, and use this Database subject only to the attribution requirements set out in Section 4.” Section 4 has more than “attribution” requirements since it reads to me like it is a ShareAlike requirement too.

Either way, the name suggests, by analogy to the Creative Common’s Licenses, that it should not be a ShareAlike license. If it was going to be a ShareAlike license I would expect it to be named “ODC-BY-SA”, not “ODC-BY.”

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6

In my view it’s not clear either way.

Section 4.2 looks like a Share-Alike provision: “If You Publicly Convey … any Derivative
Database … then You must (a) Do so only under the terms of this License …” This sounds like a requirement that you must apply the terms of the ODC to the Derivative Database - a Share-Alike provision. However it might also be intended to mean that you must comply with the conditions elsewhere in the licence, particularly elsewhere in Section 4.

Conversely Section 4.4 prohibits sublicensing of the original work, confirms that the original Licensor offers downstream users a Licence to the Database [presumably the original Database], and states that "You may enforce any rights that You have over a Derivative Database. " There seems to be no limitation on those rights as there is, for instance, in 3(b)(1) of CC-BY-SA-4.0 [1] or in 5(c) of GPLv3 [2].

Perhaps the conclusion is that the authors intended it to be just an attribution licence, but it can be interpreted as a share-like licence. That itself should be a call for modification in order to ensure clarity for users.

Regards

Andrew

[1] Creative Commons — Attribution-ShareAlike 4.0 International — CC BY-SA 4.0
[2] The GNU General Public License v3.0 - GNU Project - Free Software Foundation

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7

I don’t actually think Section 4.4. contradicts Section 4.2. To me it just seem to overlap in an odd way. But I think you are right the structure of the clauses doesn’t make it clear either way.

Section 4.4 also says: “Each time You communicate the Database, the whole or Substantial part of the Contents, or any Derivative Database to anyone else in any way, the Licensor offers to the recipient a license to the Database on the same terms and conditions as this License.” That reconfirms that the Database can only be licensed under the terms of ODC-BY. It does not speak to what license the Derivative Database should be licensed under.

It goes on to say: “You are not responsible for enforcing compliance by third parties with this License, but You may enforce any rights that You have over a Derivative Database.” That appears to me to be a statement about who has standing/the right to enforce the license over the Derivative Database. I read the sentence in a way that it doesn’t actually speak to what the licensing terms are, just who is allowed to police enforcement.

In the absence of reading 4.2(a) as a ShareAlike provision, it would seem to me that the license doesn’t speak to the licensing of the Derivative Database at all. If that were the case “You” would be left free to license it under any terms that did not contradict the license on the Database.

I had previously been thinking a fix for this would be to clarify 4.2(a) is not a ShareAlike provision and only applied to the Database, not to a Derivative Database. Since I think you are right that it is not clear 4.2 and 4.4 do not contain an ambiguity when read together, perhaps a better fix would be to modify 4.2 so it only spoke to notification requirements on the Database and did not speak to the licensing terms of either the Database or the Dervivate Database. Since section 4.2 is entitled “Notices” and section 4.4 is entitled “Licensing of Other” that would keep the terms of each sections more inline with their titles.

Modeling section 4.2(a) after Section 3(a)(1)(C), the Attribution condition, of the CC-BY[1] might be a good way to do that. It requires You to “indicate the Licensed Material is licensed under this Public License.” Perhaps that was the intended reading of 4.2(a) when it was drafted.

[1] Creative Commons — Attribution 4.0 International — CC BY 4.0

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ODC-BY is not a share-alike license.

I think the confusion arises here because attribution licenses (including CC’s one) require that you maintain the attribution if you redistribute the database or modify it (and make a derivative work). This is not “share-alike” because you are not requiring that the derivative precisely maintain the attribution-only nature (you can do what you like with your derivative portions and you can add other restrictions to the overall database - you just have to maintain attribution for the original database you reused!).

Reading the above discussion and re-reading the license I think the confusion may arise in the interpretation of 4.2 and 4.2(a)

4.2 Notices: If You Publicly Convey this Database, any Derivative Database, or the Database as part of a Collective Database, then You must:

a. Do so only under the terms of this License;

The intention here is that if you convey this database directly or in modifiable form you are responsible for maintaining the attribution on this database (which is the only real restriction in the terms of the license). However, from the above discussion people seem to be confused. Perhaps a change to something like:

4.2 Notices: If You Publicly Convey this Database including as part of a Derivative Database or the Database as part of a Collective Database, then You must:

a. Do so only under the terms of this License;

This would then clarify that 4.2(a) just applies to this database i.e. the one being licensed here. If someone then wants to license their derivative database differently (in any way they want!) they can do so as long as they preserve the conditions on this database (which basically means preserving the attribution). This is just like the CC-By section 3 conditions which state:

If You Share the Licensed Material (including in modified form), You must: …

Finally, 4.4 i think is reasonably clear: you are supposed to maintain the license on this database and can’t remove it (i.e. remove the attribution requirements). Remember “the Database” means the Database being licensed here not the Derivative database:

Licensing of others. You may not sublicense the Database. Each time
You communicate the Database, the whole or Substantial part of the
Contents, or any Derivative Database to anyone else in any way, the
Licensor offers to the recipient a license to the Database on the same
terms and conditions as this License. You are not responsible for
enforcing compliance by third parties with this License, but You may
enforce any rights that You have over a Derivative Database. You are
solely responsible for any modifications of a Derivative Database made
by You or another Person at Your direction. You may not impose any
further restrictions on the exercise of the rights granted or affirmed
under this License.

This is similar to CC 3(a)4:

If You Share Adapted Material You produce, the Adapter’s License You apply must not prevent recipients of the Adapted Material from complying with this Public License.

@dirdigeng

Section 4.2 looks like a Share-Alike provision: “If You Publicly Convey … any Derivative
Database … then You must (a) Do so only under the terms of this License …” This sounds like a requirement that you must apply the terms of the ODC to the Derivative Database - a Share-Alike provision. However it might also be intended to mean that you must comply with the conditions elsewhere in the licence, particularly elsewhere in Section 4.

As explained the confusion here is the referent of what is being Publicly Conveyed. In the license it is intended to refer to this Database (ie. the Database being licensed in the license!) not the derivative database and hence 4.2(a) is not requiring that the Derivative Database be licensed.

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@rufuspollock

I like your suggestion for how to make the intent of the license clear by changing 4.2 to parallel Section 3(a)(1) of CC-BY so it would read:

4.2 Notices: If You Publicly Convey this Database including as part of a Derivative Database or the Database as part of a Collective Database, then You must:

a. Do so only under the terms of this License;

It removes the confusion about if the authors of the license intended for only this Database to be publicly convey under the terms of the ODC-BY or if any Derivative Databases also would need to be distributed under the terms of the ODC-BY.

As you pointed out I also believe Section 4.4 is reasonably clear and already does the work of requiring that the Database be distributed only under the terms of the ODC-BY, including prohibiting sublicensing.

4.4 Licensing of others. You may not sublicense the Database. Each time You communicate the Database, the whole or Substantial part of the Contents, or any Derivative Database to anyone else in any way, the Licensor offers to the recipient a license to the Database on the same terms and conditions as this License. . . . .

That makes me wonder though: I read 4.2(a) as statement specifying the licensing terms, not as a notification of the licensing terms specified in section 4.4. If 4.4 is already mandating that the Database only be licensed under the terms of the ODC-BY, is it necessary for Section 4.2 to require the Database to be distributed under the terms of ODC-BY license at all?

Section 4.4 is entitled “Licensing of others”, which aligns with Section 4.4 specifying the licensing terms when the Database is communicate to others.

Section 4.2 is entitled “Notices.” so it seems out of place to me to include a term that is not about notices or attribution, but is instead about licensing to third parties. It also seems unnecessary since it appears to duplicate the work that section 4.4 is already doing. Would it make more sense to take the analogy you are making to Section 3 of the CC-BY a step further so that 4.2 only includes requirements related to “Notices” or in CC-BY parlance “Attribution”?

Section 3(a)(1)(C ) of the CC-BY reads in part:

Your exercise of the Licensed Rights is expressly made subject to the following conditions.
a. Attribution.

  1. If You Share the Licensed Material (including in modified form), You must:
    …
    C. indicate the Licensed Material is licensed under this Public License, and include the text of, or the URI or hyperlink to, this Public License.

Perhaps modifying Section 4.2 as you suggested and modifying 4.2(a) to read:

4.2 Notices: If You Publicly Convey this Database including as part of a Derivative Database or the Database as part of a Collective Database, then You must:

a. indicate the Database is licensed under the terms of this License;

I think changing 4.2(a) this way would parallel Section 3(a)(1)(C ) of the CC-BY, to ensure that any time a Database is distributed it includes an indication that the Database is licensed under the terms of the ODC-BY. It would also align the contents of Section 4.2 and 4.4 with their titles.

I do not think this is duplicative of Section 4.2(c )’s obligation to keep in tact existing notices since there may be no existing notices to keep in place. Nor do I think it is duplicative of Section 4.2(b) since that only requires that license text or a URI to the license text be included, but I would expect a bare link to license text to have a tough time creating, or being incorporated into, a binding contract especially without some other notice to give it context.

As it is now, if a person comes into possession a copy of Database that does not contain an affirmative statement that the Database is licensed under the terms of the ODC-BY, that person is not obligated to say so other than including a URI to the license text. There is also no guarantee how long the URI used would be valid either.

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I am new to this topic, the problem may occurs because it’s not clearly stated on Conformant Licenses - Open Definition - Defining Open in Open Data, Open Content and Open Knowledge
but here Publisher’s Guide to Open Data Licensing – The ODI on the Open Data Institutes, it is clearly shown that ODC-BY is Attribution License, while the one with ShareAlike license is ODbL
both clearly stated at the ODC sites here:
Open Data Commons Attribution License (ODC-By) — Open Data Commons: legal tools for open data
Open Data Commons Open Database License (ODbL) — Open Data Commons: legal tools for open data

11

@marctjones these suggestions sound pretty good. Would it be possible for us to get a precise diff of the text as you propose.

I think i grokked your exact proposed changes but it would be useful to get a really clear diff style presentation.

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12

@rufuspollock Here is the diff of my suggestion against the current version of the license.

234,236c234,235
< 4.2 Notices. If You Publicly Convey this Database, any Derivative
< Database, or the Database as part of a Collective Database, then You
< must: 
---
> 4.2 Notices. If You Publicly Convey this Database, including as part of a
> Derivative Database or as part of a Collective Database, then You must: 
238c237
<   a. Do so only under the terms of this License;
---
>   a. Indicate the Database is licensed under the terms of this License;
428c427
< terms of this License.
\ No newline at end of file
---
> terms of this License.

Link to a Gist repo with my proposed patch.
Direct link to the raw Patch
Direct link to the raw Patched License

13

Thanks @marctjones - inspired by this I think the next step actually is probably to get the existing licenses in to a repo (and maybe the website too - off wordpress!)

If anyone is up for helping me with this, please let me know!

UPDATE: I’ve booted the repo - please feel free to open issues

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I submitted a pull request and issue to the Git repo. I would suggest moving the discussion to the Git Issue.

15

Weighing in on this a bit late I know, but referring to CC-BY (any variant really, but even more so 4.0) as “attribution only” is rather misleading.

At least a naive interpretation of “attribution only” is likely to be “I can do anything I want with derived work/data including distributing on more restrictive terms, as long as I provide the required attribution”, which however is not the case with the CC-BY licences.

Simon