On reflection, the key problem lies with the phrase “automatically satisfy the conditions of the OGL” in the OGL‑UK‑3.0 license text (emphasis added). Moreover the direction of compatibility is unfortunately not specified in that passage either.
And compatibility cannot be two way — one materially different term‑of‑use will stymie that characteristic. And the choice of law provision in the OGL‑UK‑3.0 does just that. In any case, no one is arguing that the two instruments are legally identical.
A public license is made up of equivalently “terms‑of‑use” or “conditions” that may be either “permissions” or “restrictions”. That is precisely why I used the phrase “not more onerous” in my earlier analysis, because these two camps are not similarly behaved.
Essentially, additional permissions allow the user to do more and additional restrictions necessarily mean that the user is more constrained. That is pretty obvious.
If the OGL‑UK‑3.0 terms‑of‑use that differ are strictly more permissive than the CC‑BY‑4.0, then the OGL‑UK‑3.0 could potentially be inbound‑compatible to the CC‑BY‑4.0. But the choice of law provision in the OGL‑UK‑3.0 means that further restrictions must apply as well. In which case:
If the OGL‑UK‑3.0 terms‑of‑use that differ are strictly more restrictive than the CC‑BY‑4.0, then the CC‑BY‑4.0 could potentially be inbound‑compatible to the OGL‑UK‑3.0. But then CC‑BY‑4.0 section §2.a.5.B activates and prevents that scenario.
So that is stalemate!
If the passage on compatibility in the OGL‑UK‑3.0 does conflict with actual terms‑of‑use, it is impossible to anticipate whether a court would favor the conflicting terms‑of‑use or the commentary on compatibility. In any case, they would need to adjudicate on that matter. My guess is that individual terms would trump commentary and interpretation, but that is pure speculation on my part. Moreover, neither of the matters I raise would be considered minor. Both governing law and a prohibition of further restrictions can only be major terms.
Moreover, a data analyst who uses publicly licensed material in conflict with the terms‑of‑use of the prevailing license, forfeits the entire license and becomes duly liable for copyright infringement. And worth noting that much of this data will be used by researchers working for risk‑averse institutions. Moreover a lack of prior judicial assessment will not prevent civil litigation.
Returning to the question at hand, an analysis must be undertaken using “degree of onerousness” arguments based on term‑by‑term analysis of the two licenses.
Is anyone aware of that kind of detailed analysis being undertaken and, in particular, written up in the academic literature. Moreover, I am not interested in hand‑waving arguments as to where the OGL‑UK‑3.0 was pitched and what the quality of its underpinning legal advice might be. But I would be interested in seeing that advice. Is it likely to be publicly available?
My earlier conclusions largely stand. I now provisionally conclude that material under CC‑BY‑4.0 cannot be inbound‑compatible with the OGL‑UK‑3.0 due to §2.a.5.B. And that material under OGL‑UK‑3.0 cannot be inbound‑compatible with the CC‑BY‑4.0 due to choice of law provisions. So that then creates the perfect legal silo with the OGL‑UK‑3.0 essentially residing in splendid isolation.
I am not asking people to agree with my analysis. I have no legal training and limited knowledge of English law. What I am asking is that these matters be acknowledged and tackled. And if a version 4.0 of the OGL is required to address these problems, then so be it. The other option would be for the United Kingdom to favor CC‑BY‑4.0 as the European Commission has largely done. And the CC‑BY‑4.0 is a genuinely international license.
My sole interest is data interoperability. We need that interoperability in order to confront the myriad of problems we collectively face, both large and small.
