License compatibility as imperative?

Sure my comments were speculation. And could well be wishful thinking on my part. One very useful provision would be to explicitly exclude public sector information. Giannopoulou (2018) provides useful analysis in this regard:

To quote from that chapter (standalone PDF p5, printed book p106):

The Database Directive does not clearly indicate the exclusion of public databases that fall under the PSI Directive from qualifying for the sui generis protection. In principle, since public sector databases are not excluded, branches of state power can benefit from the sui generis right protection when they fulfill the conditions [36]. Absent an ECJ decision, however, courts from some Member States have ruled against the possibility of public bodies asserting sui generis database rights. Namely, courts in Italy and Germany have held that even if public sector databases qualify for the protection, they should be exempt from it.[37] The highest administrative court in Amsterdam has held that the City of Amsterdam cannot hold sui generis rights on a database even if it has made a substantial investment towards its creation because the has not borne the risk for the investment in question. [38] Thus, it cannot impose limitations or charges in the reuse of that database. Finally, French law has been amended [39] to clarify that public bodies cannot invoke a sui generis right in order to refuse the reuse of their data.

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Meaning that the OGL‑UK‑3.0 is either strictly less onerous or strictly equivalent to the CC‑BY‑4.0.

There are two lines of argument in play here. One is contextual — based on the stated purpose of the instrument and the caliber of those drafting the legal text. And the other is analytical — based on a comparison of the respective terms‑of‑use and any formal claims of interoperability. I adopted the latter approach and came to different conclusions. As I indicated elsewhere, I normally try to refrain from doing my own legal analysis. But in this case, I elected to fly a kite. I will check with some media lawyers I know and report back if anything notable arises.

Nor did I ever argue that.

Also worth adding, as @SimonPoole and @systemed opine, that the OGL‑UK‑3.0 being inbound‑compatible to the CC‑BY‑4.0 would suit me better. And very certainly my United Kingdom colleagues.

There is another point that I would welcome clarification on. Can anybody apply the OGL‑UK‑3.0 to any class of information (aside from source code of course)? Or are there restrictions on the licensor and on the type of material? After all, the formal title for the license is the “Open Government Licence for public sector information”.

Note that wrt OGD the “new” EU open data directive limits the scenarios in which restrictive licensing terms can be used by public bodies and suggests that sui generis database rights should not be invoked. In practice this naturally all depends on the transformation in to national law, but at least in some cases (for example Germany) this has led to a general prohibition on using sui generis database rights in such scenarios. I suspect that there is still considerable wiggle room though.

That’s useful. §1.6 of directive (EU) 2019/1024 states:

The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent the re-use of documents or to restrict re-use beyond the limits set by this Directive.

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Can anybody apply the OGL‑UK‑3.0 to any class of information (aside from source code of course)? Or are there restrictions on the licensor and on the type of material?

There are no restrictions, although the licence is expressly intended for public sector use. The National Archives page about the OGL is helpful and also clarifies the compatibility issue (“The OGL terms are compatible with the latest versions of the Creative Commons Attribution License and the Open Data Commons Attribution License. This means that when the information is adapted and licensed under either of those licences, you automatically meet the conditions of the OGL as long as you comply with the terms of the other licence.”)

There is some limited use outside Government - for example, data published by the charity Sustrans.

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@systemed The National Archive wording you quote is also provided in the license text of the OGL‑UK‑3.0, but with version numbers cited for the other licenses. I gave my interpretation earlier. And that clearly differs from that by you and @SimonPoole. So I will endeavor to seek more information. Thanks for the other clarifications.

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.

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I captured my earlier analysis in the following diagram. I believe this to be a serious issue. And I note that have not received any substantive counter‑argument thus far. That said, this analysis is entirely provisional and the information given should not be relied upon under any circumstances. R

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