Open License Requirements

Open Data Index Global Open Data Index 2016
9

In the case of Brazil, I think the rationale should like be the following:

  1. If there is information about licensing accompanying either the dataset, or the website where it is located, use that.
  • Otherwise, if it was published on or before 1983, it is in the public domain.
  • If the dataset is made available by the executive branch of the federal government, it is considered licensed by the federal Decree 8.777/2016, Chapter II.
  • Otherwise, apply the SOCD test. If it fails the test (i.e. is not copyrightable), it is in the public domain.
  • Apply the OAR test. If it passes the test (i.e. is not copyrightable), it is in the public domain.
  • If the data passes the SOCD test and fails the OAR test (i.e. may be copyrightable), it is not open data.

The SOCD test

What is it? The Brazilian Law 9.610/1998 states in Article 7, XIII, that databases are copyrightable only if, by their “selection, organization or content disposition, they constitute an intellectual creation”. So, factual data is clearly not copyrightable.

The OAR test

What is it? The Brazilian Law 9.610/1998 states in Article 8, IV and V, that official acts and registries (among other cases) are exempt from copyright. That may apply to some government data.

The Access to Information Law (Law 12.527/2011) states in Article 3, I, that publicity is the general rule and secrecy is an exception - which can be made only in cases justifiable by one of the situations defined in Law. So, if a public body has already published the data on the internet, it means it does not have secrecy requirements.

Other relevant legislation

For government datasets on the federal level, Chapter II of the Decree 8.777/2016 states that “any data made available by the executive branch, federal level government, as well as any information of active transparency, are free to be used by the government and by society”.

In some very specific cases there might be other laws that restrict the usage of data (e.g. taxation secrecy, banking secrecy, trade secrecy, etc.), so one should be on the lookout for those.

In summary, it can be argued that in the general sense most data held by all levels of Brazilian government is in the public domain. @ppkrauss calls this an implied license.

For a more extensive discussion on the matter (in Portuguese), see also this page.