15 This background section summarises:
- the context in which NZGOAL has been prepared;
- the drivers behind NZGOAL; and
- the departmental consultation process that concluded earlier this year.
Context
16 NZGOAL has been prepared within a three-fold context:
- the policy context of both the Policy Framework for Government-Held Information (1997) [3] and the New Zealand Government Web Standards;[4]
- the legal context of copyright (Crown copyright and otherwise) in qualifying public sector works; and
- the factual context of existing licensing practices across the State Services.
Policy context
17 As regards the policy context, both the Policy Framework for Government-Held Information and the Web Standards have something to say about access to and use of public sector copyright material, but they are generic and have their limits.
Legal context
18 As regards the legal context:
- copyright is a property right that exists in certain original works, regulated by the Copyright Act 1994;
- the categories of qualifying original works are literary works (which can include datasets and databases), dramatic works, musical works, artistic works, sound recordings, films, communication works and typographical arrangements of published editions;
- generally speaking, copyright does not protect mere facts or information;
- Crown copyright is a species of copyright as set out in section 26 of the Copyright Act;
- “Crown” for Copyright Act purposes means Her Majesty the Queen in right of New Zealand and includes a Minister of the Crown, a government department, and an Office of Parliament; it does not include Crown entities or State owned enterprises; their qualifying original works are subject to what one might call regular copyright, not Crown copyright;
- while copyright (Crown or regular) exists in most public sector original works, the Act provides that no copyright exists in certain governmental and Parliamentary materials, such as legislation, court judgments and Parliamentary debates;
- it is important to distinguish between copyright in original works and licensing of works in which copyright exists; and
- unless entitled to do so by a copyright licence or statutory provision, a person infringes copyright in a work when he or she does any of a number of “restricted acts”, the most common of which is copying the work or a substantial part of it.
19 It is important to emphasise at the outset that not all government held or created information and data qualifies for copyright protection. Only original works falling within the categories mentioned above and whose duration of copyright protection has not expired do. Neither agencies nor the public should assume that all the information and data held by State Services agencies is protected by copyright. That is not to say that all non-copyright material needs to be placed in the public domain, but it is to say that care needs to be taken when talking about an agency’s “copyright material”.
20 Both anecdotal evidence and feedback from departments suggests there is a need for greater understanding of copyright and licensing issues on the part of both agencies and members of the public who wish to re-use public sector information, data and copyright works. Some of the more fundamental features of New Zealand copyright law are set out in Appendix 2 of this draft NZGOAL.
21 Other relevant legal context includes the Official Information Act 1982, the Public Records Act 2005 and the Privacy Act 1993. These Acts are of general application to State Services agencies. A legal review has revealed no inconsistency between the use of Creative Commons licences and this legislation. Two points are worth noting:
- Copyright works released to a person following a request under the Official Information Act do not lose their copyright protection by virtue of being so released nor does the fact of release entitle the recipient to use the works in a way which would infringe copyright. The recipient needs a licence to re-use the works in any way which would infringe copyright in the works. NZGOAL provides a framework within which licences can, at an agency’s discretion, be granted, either proactively or upon request. Indeed, to some extent NZGOAL can be seen as a logical extension of the principle of availability in section 5 of that Act.
- The second point, and one to be emphasised, is that NZGOAL does not extend to personal information. It is for this reason that no issues arise under the Privacy Act.
Factual context
22 As regards the factual context, there are at least three broad categories of licensing currently in place across government, from one-off bespoke licence agreements to open-ended and often loosely-worded arrangements, with each category being likely to house multiple variants.
Drivers
23 There are at least six drivers behind NZGOAL, some flowing from the policy and factual context, others not[5]. Those drivers are:
- current confusion, uncertainty and criticism on the part of members of the public around Crown copyright and licensing, including difficulties being experienced through the various and inconsistent licensing practices across the State Services;
- recognition that, although the Policy Framework for Government-Held Information and the Web Standards set admirable principles and expectations regarding access to public sector information and data and licensing of public sector copyright works, they are no longer adequate to deal with the tapestry of copyright and licensing issues that arise in the digital age;[6]
- increasing interest on the part of certain New Zealand government agencies in the potential use of Creative Commons licences;
- notable public sector information, data and copyright work initiatives across the State Services (including early adopters of Creative Commons licences)[7] as well as, more recently, tangible and collaborative efforts on the part of the private sector to assist government in opening up certain categories of its datasets;[8]
- international developments regarding the use and valuable exploitation of public sector information, data and copyright works, including automated re-use, a review of which reveals that:
- there is considerable activity at supra-national, national and state levels on issues of public sector information and data re-use;
- heightened activity in recent times appears to be due, in part, to advances in technology and a growing body of economic research pointing to the potential advantages to be gained from open access to, and re-use of, public sector information and data; and
- there is generally widespread support at these supra-national, national and state levels for increasing the release of public sector copyright material on liberal terms and in formats that permit and readily enable public use and re-use of that material; and
- the current economic climate; to give just one example, Land Information New Zealand has commissioned a report which estimates “that by investing in making geospatial data more accessible and reducing access charges, the potential exists to boost the economy by an extra $500 million a year”.[9]
Departmental consultation process
24 During 2008 and early 2009, SSC researched issues relating to the re-use of public sector information and conducted a review of the Creative Commons New Zealand law licences with a view to determining whether they would be appropriate for all-of-government adoption for licensing of public sector copyright works. With the transfer of Government Technology Services from SSC to DIA on 1 July 2009, that work is continuing in collaboration with DIA.
25 On 25 March 2009, SSC provided 36 departments with a discussion paper entitled “Suggested All-of-government Approach to Licensing of Public Sector Copyright Works: Discussion Paper for Public Service and Non-Public Service Departments” (the “Discussion Paper”). The Discussion Paper was also provided to the Parliamentary Counsel Office, the Human Rights Commission, the Office of the Privacy Commissioner, the Council for the Humanities Te Whainga Aronui and certain colleagues in Australia involved with Queensland’s Government Information Licensing Framework and Creative Commons Australia. The Discussion Paper proposed a potential all-of-government approach to opening up public sector copyright material for re-use.
26 SSC considered that its analysis of the six drivers referred to above suggested that there is solid collective reason for the Government to advocate all-of-government adoption of a suite of open content licences for public sector copyright material where it is appropriate for such material to be made available for re-use. It expressed the preliminary view that the suite of Creative Commons New Zealand law licences represents the most obvious candidate for potential governmental adoption, possibly in conjunction with one or more additional restrictive licences and/or indigenous licences to deal with situations for which the Creative Commons model is not appropriate.
27 The Discussion Paper also advocated the development and release of guidance material to assist:
- the public in understanding key legal issues; and
- agencies with matters of implementation.
28 SSC’s preliminary view was based on consideration of each of the six Creative Commons licences and analysis of a number of legal and practical issues regarding their use.[10]
29 SSC received responses from 19 departments. Of these 19 departments, 10 departments provided substantive and sometimes substantial feedback, while 4 gave some general feedback without addressing the 18 discussion questions put to them and 5 had no comments to make. SSC also received responses from the Education Sector ICT Management Committee and the Council for the Humanities.
30 Overall, the feedback revealed strong support for all-of-government adoption of Creative Commons licences in conjunction with one or more restrictive licences, such adoption to be in the form of a framework and guidance material that would be recommendatory in nature and encompass the State Services.[11]
31 The following sections of this NZGOAL set out:
- the NZGOAL Policy Principles; and
- an explanation of the NZGOAL licences and tools; and
- the NZGOAL Review and Release Process.
[3] http://www.e.govt.nz/policy/information-data/framework.html
[4] http://www.webstandards.govt.nz/
[5] The six drivers were addressed in detail in SSC’s Discussion Paper provided to departments and others on 25 March 2009 entitled “Suggested All-of-government Approach to Licensing of Public Sector Copyright Works: Discussion Paper for Public Service and Non-Public Service Departments”, available online at http://e.govt.nz/policy/information-data/nzgoalframework.html.
[6] They are both expected to be updated to reflect the NZGOAL Policy Principles but neither of them can be expected to serve all the purposes of this NZGOAL.
[7] One of the more recent examples is the Ministry for the Environment’s re-issue of the New Zealand Land Cover Database under a Creative Commons Attribution licence (http://www.mfe.govt.nz/issues/land/land-cover-dbase/index.html) and the leading work of Land Information New Zealand (see, e.g., http://www.linz.govt.nz/about-linz/news-publications-and-consultations/news-and-notices/corporate/2009/0625-annual-gid-speech-summit/index.aspx). For earlier examples, see the Discussion Paper that SSC released to departments on 25 March 2009, above n 5, paras 60-61.
[8] The most visible of these private sector initiatives are Koordinates (http://koordinates.com/) and, more recently, the Open Data Catalogue, an open, independent catalogue of government and local body datasets (http://open.org.nz/cat/).
[9] See “Speech by Colin MacDonald to 2nd Annual GIS Summit”, 25 June 2009, http://www.linz.govt.nz/about-linz/news-publications-and-consultations/news-and-notices/corporate/2009/0625-annual-gid-speech-summit/index.aspx.
[10] SSC’s consideration of those legal and practical issues is set out in its Discussion Paper for departments, above n 5.
[11] SSC’s collation of and feedback on the responses received is contained in “Suggested All-of-government Approach to Licensing of Public Sector Copyright Works: Discussion Paper for Public Service and Non-Public Service Departments - Summary and analysis of departmental feedback”, available at: http://e.govt.nz/policy/information-data/nzgoalframework.html.
