[ENRIQUE ALONSO GARCIA]

Dear colleagues.
Having had some tome to briefly reflect on our process, I think that there area are at least 2 issues that I think we keep on leaving aside and that need to be clarified because if not the legal interoperability principles of RDA-CODATA could seem unclear or messy. I hate getting back somehow to the basics but I have not seen (or I am not conscious of having seen them) 100% clarity in those 2 issues. I do not mind ambiguity at all, since it has its values (e.g. reaching consensus) but only as soon as we all admit we are being ambiguous and we are not ready to agree on the scope nor on the concept of public domain.
A.- SCOPE: DATA OR SOFTWARE AND WEB SERVICES TOO?
Are we dealing only with legal obstacles to interoperability based on the copyright of data and/or its expressions or are we also dealing with legal interoperability obstacles or bottlenecks based on the accessibility and usability of the software and web services (e.g.databases) needed to access/use/reuse the data?
The IPRs (patents or copyright depending on the legal system/jurisdiction) concerning software are quite different from those regulating access and usability of data; the same thing is applicable to web services. For example software access free use (not public domain) through special licenses (FOS. FLOSS or equivalent, totally different from CC or equivalent licenses that never address issues of software; or metadata for IPRs of data and their expressions, if available through rights statements, is totally different from metadata applicable to software)
So my question… are the principles seriously addressing these differences or are we not messing thongs farther by not addressing these different legal interoperability issues?
Shouldn´t we declare that we are dealing only with data and we are not addressing legal interop problems stemming from software or web services IPRs?
I cannot see how can we solve and issue guidelines on the metadata principle without a clear understanding of the scope. And the same is applicable to public domain below since metadata expressing PD are very different depending on the type of PD we are referring to.
B.- PUBLIC DOMAIN.
PD has 4 totally different conceptual frameworks depending on how this status is achieved.
1) because the term of copyright protection has expired (typically the life of the author + 70 years or, in the case of “works made for hire,” the copyright term is 95 years from the date of first publication or 120 years from the date of its creation, whichever is earliest )
2) because it has been abandoned ( e.g. the orphanage DIrective)
3)- what seems to be acknowledged by many scientists-, dedication either by public or private data holders of the data (or theri expressions) to the public domain via simple declaration (always revocable) and mainly through some types of licensing, typically some of the CC licenses.
4) public domain as eminent domain: the mandate of a government (or an agency if that power is delegated) to declare the data (and/or its expression) public domain per se (as the government has the power to declare a beach, freshwater, the sea, heritage or other sorts goods as public commons. In should be unquestionable that all governments have this power and that they can declare so without any need of “licensing” the data as public domain). Licensing implies a unilateral or contractual decision of somebody to dedicate the data to public domain, but a law can declare on itself ,or allow an agency to declare it, that some data is public domain and even disregard or prohibit any sort of licensing because licensing implies the existence of the alternative possibility of not licensing or have limited licenses,.
I have absolutely no doubt that at least the Spanish government has the 100% power of declaring that some data are public domain per se, available to everybody without any possibility of submitting it to any sort of licenses but eventually regulating usability conditions (such as typically, acknowledgement of the source). Of course to do so it has to own the expression and the data (pr is has to expropriate it before if it in private hands.
The US Government has also exactly that same power. And that is the policy of CENDI, the interagency group of senior Scientific and Technical Information (STI) managers from 14 United States federal agencies (Commerce, Energy, NASA, Defense Information Managers Group), Its intellectual property task force is crystal clear about it: “Public domain refers to works that are not protected by copyright and are publicly available. They may be used by anyone, anywhere, anytime without permission, license or royalty payment.” A LICENSE IS NOT AT ALL NEEDED (although public domain also be achieved via licensing. Especially if an author wants to dedicate something to the public domain with legal certainty for third parties beyond simple declaration).
Public release, disclosure or dissemination are not synonymous to public domain and should not be used interchangeably. Public release, disclosure and dissemination describe the availability of a work. Publicly released, disclosed or disseminated information may be owned and protected by copyright, and therefore, not be in the public domain. And public domain data might have reStricted distribution based on other public interests that could limit accessibility.
So, in principle 1… shouldn´t we refine that the public domain we are referring to is number 4? …
or could we admit that the 4 variants have the same effect as it concerns data and its expressions, that they may be used by anyone, anywhere, anytime without permission, license or royalty payment.
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De: simon=***@***.***-groups.org [simon=***@***.***-groups.org] En nombre de Simon Hodson [***@***.***]
Enviado el: miércoles, 05 de agosto de 2015 18:56
Para: RDA/CODATA Legal Interoperability IG
Asunto: [rda-legalinterop-ig] CODATA-RA Legal Interoperability Group Call, Friday 7 August
Dear all,
Please find below and attached the details for our call on Friday.
I attach again, also, the documents Paul circulated earlier this week and reproduce here the schedule for our calls through August and then down to the RDA Plenary in Paris in September.
On Friday we will discuss #4 ‘Transparency and Certainty’ and #3 ‘Harmonisation’.
With very best wishes,
Simon.
Legal Interoperability Group, Schedule
7 Aug:
4 Transparency and certainty > Christoph
3 Harmonisation > Enrique
14 Aug:
1 Access and reuse > Herbert, Maria and Simon
2 Balance > Willi
5 Metadata > Enrique and Gail
21 Aug:
6 Attribution and Credit > Gail and Bernard
7 Equity > Paul
28 Aug:
8 Responsibility > Bernard
9 Sept:
Co-chairs will send edited draft Principles and Implementation Guidelines to whole Interest Group
22 Sept (16:00-18:00):
The IG will have a pre-RDA P6 meeting, location TBD
25 Sept (9:30-11:00):
Legal Interoperability IG breakout session at RDA P6 (see RDA Conference website)
CODATA-RDA Legal Interoperability Group Call, Friday 31 July 2015, 13.00-14.00 UTC
Please join my meeting from your computer, tablet or smartphone: https://global.gotomeeting.com/join/167283397
You can also dial in using your phone.
Access Code: 167-283-397
More phone numbers
United States : +1 (312) 757-3117
Australia : +61 2 8355 1031
Austria : +43 (0) 7 2088 1033
Belgium : +32 (0) 28 93 7001
Canada : +1 (647) 497-9371
Denmark : +45 (0) 69 91 89 21
Finland : +358 (0) 942 41 5770
France : +33 (0) 170 950 585
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Ireland : +353 (0) 19 030 050
Italy : +39 0 693 38 75 50
Netherlands : +31 (0) 208 080 208
New Zealand : +64 9 925 0481
Norway : +47 21 54 82 21
Spain : +34 911 82 9890
Sweden : +46 (0) 853 527 817
Switzerland : +41 (0) 435 0167 65
United Kingdom : +44 (0) 20 3713 5010
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Two_issues_in_need_of_clarification_legal_interop_only_of_data_and_concept_of_public_domain.doc

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