Introduction
32 State Services agencies are strongly encouraged to apply the following principles in relation to:
- enabling public access to and re-use of their non-copyright information and data; and
- licensing their copyright works for re-use.
33 The licences and tools referred to in this section are explained in the next section on NZGOAL licences and tools.
Open access to non-copyright information and data
34 Unless a restriction in paragraph 37 applies, State Services agencies should:
- provide online public access to non-copyright information and data that is or may be of interest or use to people;
- allow them to copy and re-use such information and data without restriction; and
- include, at the point of release (and in the released information or data itself if practicable), the statement set out at paragraph 76 below or a statement in broadly equivalent terms
(the “Open Access Principle”).
Open access to copyright works with Creative Commons Attribution (BY) licence as default
35 Unless a restriction in paragraph 37 applies, State Services agencies should make their copyright works which are or may be of interest or use to people available for re-use on the most liberal of licensing terms available within NZGOAL (the “Open Licensing Principle”)[12]. The most liberal of licensing terms available within NZGOAL is the Creative Commons Attribution (BY) licence.
Ensuring copyright ownership or right to sub-license
36 Agencies should only licence a copyright work for re-use by others where they:
- own the copyright in the relevant work and have not exclusively licensed it to a third party; or
- to the extent they do not own the copyright, either:
- can first obtain an assignment of copyright from the relevant copyright owner(s); or
- have or can first obtain a right to sub-license the work (or relevant elements of the work)[13] on the terms of the relevant Creative Commons or restrictive licence, from the relevant copyright owner(s).
Restrictions
37 Neither the Open Access Principle nor the Open Licensing Principle applies where providing open access to and allowing re-use of information and data (in the case of non-copyright information and data) or licensing a copyright work with the Creative Commons Attribution (BY) licence (in the case of copyright works):
- would or might be contrary to legislation, court order or specific government policy;
- would or might constitute a breach of contract, breach of confidence, disclosure of a trade secret or other actionable wrong;
- would be contrary to an agency’s own legitimate commercial or other interests (bearing in mind, however, that, with certain exceptions, it is generally not the business of government to commercialise its information, data or copyright works);
- would result in the publication of a patentable invention for which the agency proposes or may wish to apply for a patent;[14]
- would be contrary to the public interest (e.g., in having a single, authoritative and non-adapted data source);
- would result in the release of incomplete information or data or an incomplete work where the agency considers, acting reasonably, that such release would be:
- materially misleading;
- likely to cause or contribute to material error on the part of recipients or licensees; or
- otherwise problematic;[15]
- would or might threaten the control over and/or integrity of Māori or other traditional knowledge or other culturally sensitive material;[16]
- would or might jeopardise the economic or other potential to Māori or other indigenous groups of Māori or other traditional knowledge or other culturally sensitive material; or
- would otherwise conflict with the existence of a good reason under sections 6 or 9 of the Official Information Act for withholding release of the information, data or work if the information, data or work were requested under that Act.
Other Creative Commons licensing or restrictive licensing
38 Where, in the case of a copyright work, one of the above restrictions applies or appears to apply but an agency may still be able to license the copyright work on Creative Commons terms (the restrictions in paragraph 37(c) and 37(e) being the most likely candidates), the agency should consider adopting one of the following licences for the work, taking into account the principles in paragraphs 40-41 below:
- Creative Commons Attribution-Noncommercial (BY-NC);
- Creative Commons Attribution-No Derivative Works (BY-ND);
- Creative Commons Attribution-Noncommercial-No Derivative Works (BY-NC-ND);
- Creative Commons Attribution-Share Alike (BY-SA); or
- Creative Commons Attribution-Noncommercial-Share Alike (BY-NC-SA).
39 Where no other Creative Commons licence can be applied, the agency may wish to consider making the work available pursuant to the NZGOAL restrictive licence.
Share-alike and no derivative works restrictions
40 When considering whether to use a form of Creative Commons licence that either imposes an obligation on licensees to share-alike or prohibits the creation of derivative works (adaptations), agencies should take the following principles into account:
- both the obligation to share-alike and the prohibition on the making of derivative works (adaptations) may have the adverse effect of stifling creativity and/or economic exploitation by licensees (the “Creativity Principle”); and
- the prohibition on the making of derivative works (adaptations) may only be objectively justifiable where there are real and not trifling concerns about the authenticity and integrity of the original work or elements of it or the reputation of the source agency or wider government (the “Authenticity Principle”).
Non-discrimination
41 Except where necessary to protect their own or others’ commercial or other interests, agencies should not discriminate, when selecting an NZGOAL licence, between individual, not-for-profit and commercial uses of the relevant copyright works (the “Non-Discrimination Principle”).
Trademarks and other protected names and emblems
42 State Services agencies enabling public access to and re-use of their non-copyright information and data, or licensing for re-use their copyright works, should take care to ensure that the relevant information, data or works:
- do not contain any trademarks, the reproduction of which is unauthorised; or
- do not suggest that any names or emblems protected under the Flags, Emblems, and Names Protection Act 1981 or other legislation can be reproduced in any way that would infringe such legislation.
43 To the extent that such trademarks are included within information, data or works made available for re-use, State Services agencies should expressly exclude them from the scope of any:
- “no known rights” statement of the kind recommended in paragraph 76 below, in the case of non-copyright information and data released for re-use; and
- licence allowing re-use, in the case of copyright works.
44 To the extent that such names or emblems are included within information, data or works made available for re-use, State Services agencies should state that those names or emblems may not be used in any way which infringes any provision of the Flags, Emblems, and Names Protection Act 1981.
Formats
45 When releasing non-copyright information and data for re-use and licensing copyright works on terms allowing re-use, agencies should:
- consider the formats in which they ought to be released, taking into account, where relevant and to the extent practicable, the wishes of those who will or are likely to re-use the information, data or works; and
- to the extent practicable, release them in the formats they know or believe are best suited for interoperability and re-use.
46 When releasing information, data or works in proprietary formats (such as Microsoft Word), agencies should also, to the greatest extent practicable, release the information, data or works in open, non-proprietary formats (the “Open Format Principle”).
Digital rights management
47 State Services agencies should not:
- impose digital rights management technologies on either non-copyright information and data or copyright works which they make available for re-use; or
- make non-copyright information and data or copyright works available for re-use when such information, data or works are encumbered by externally-imposed digital restrictions.[17]
Charging
48 Charging by State Services agencies for people’s use and re-use of non-copyright information and data and copyright works is generally discouraged. Before making any decision to do so, State Services agencies should take into account:
- the Treasury’s “Guidelines for Setting Charges in the Public Sector” (December 2002);
- the presumption that, where the costs of dissemination are low or it is economically inefficient to put in place and administer a charging structure, recipients and licensees should not be charged; and
- whether the creativity and/or national public benefit that could arise from allowing re-use without charge could be significantly prejudiced by the imposition of a charge.
49 To the extent that State Services agencies do propose to impose a charge, they are encouraged:
- to consider whether to allow non-commercial use without charge, by use of the Creative Commons Attribution-Noncommercial (BY-NC) licence and, if so, whether the Creative Commons Plus (CC+) protocol might offer them a convenient means of charging for commercial use;
- to limit charges to what is reasonably necessary to meet the costs of distribution;
- to use technology to reduce such costs to the extent practicable; and
- to seek legal advice on the most appropriate choice of NZGOAL licence, whether Creative Commons or restricted.
50 Paragraphs 48-49 are subject to any statutory, policy or commercial imperatives to the contrary.
Updating released information, data and copyright works
51 Where State Services agencies have released information, data or copyright works on terms allowing re-use, and the released information, data or copyright works are superseded by a later version or found to contain errors or other inaccuracies, agencies should use all reasonable endeavours to release the later versions or inform the public of the errors or inaccuracies, as applicable.
Procuring and preparing information, data and copyright works
52 When procuring, preparing or commissioning information, data and copyright works, State Services agencies are encouraged to consider whether such information, data and works should, in accordance with these Policy Principles, be released to the public for re-use.
53 Where such information, data and works should be released to the public for re-use, State Services agencies should, where applicable, consider the steps that may be required as part of their procurement and contracting processes to ensure they have the relevant rights to so release. Such steps may include:
- ensuring the agency owns the copyright in any relevant commissioned copyright works or otherwise obtains a broad licence from the copyright owner allowing it to sub-license the works on Creative Commons terms (or more restricted terms where the Creative Commons model is not appropriate), by specifying this as a requirement in procurement documentation (if any) and drafting contractual provisions accordingly;
- ensuring, where practicable and relevant, that non-copyright information and data are not subject to either confidentiality obligations owed to third parties[18] or other contractual restrictions; and
- ensuring that procured or commissioned information, data or copyright works are not encumbered by externally-imposed digital restrictions, by specifying this as a requirement in procurement documentation (if any) and drafting contractual provisions accordingly.[19]
54 Paragraphs 52-53 are subject to any statutory, policy or commercial imperatives to the contrary.
Review and Release Process
55 State Services agencies should ensure that the NZGOAL Review and Release Process has been followed prior to:
- the release for re-use of information or data in which they believe there is no copyright or other intellectual property rights or restrictions; or
- the release for re-use of what they believe to be copyright works on the terms of either a Creative Commons or restrictive licence.
56 Agencies may need to consult their legal teams when undertaking the NZGOAL Review and Release Process.
57 State Services agencies should also take into account, before licensing copyright works on Creative Commons terms, the fact that Creative Commons licences are irrevocable.[20]
[12] The Creative Commons Attribution (BY) licence is recommended as the default licence so as to promote the greatest re-use of public sector copyright works and interoperability between the different licence types.
[13] The reference here to obtaining a right to sub-license relevant elements of a work reflects the possibility that an agency may hold an overall work which consists of different, distinct copyright elements, some of which the agency owns, and others of which third parties own.
[14] In such cases, it is important that the invention not be published, as publication prior to filing a patent application will in all likelihood render the invention non-patentable. See generally the information on patents on the website of the Intellectual Property Office of New Zealand: http://www.iponz.govt.nz/cms/patents/what-is-a-patent
[15] Note that this restriction is not intended to suggest any general prohibition on the release of incomplete information, data or works. The restriction is only relevant where such release would give rise to one of the listed situations.
[16] Any agency that is in any doubt as to whether this or the previous restriction applies is advised to consult Te Puni Kokiri before release.
[17] For more information on digital rights management and trusted computing issues in governmental contexts, see the State Services Commission’s “Trusted Computing and Digital Rights Management Principles & Policies” (September 2006), available at http://www.e.govt.nz/policy/tc-and-drm, and “Trusted Computing and Digital Rights Management Standards and Guidelines” (July 2007), available at http://www.e.govt.nz/policy/tc-and-drm/standards-guidelines-07.
[18] The point here is not to suggest that truly commercially sensitive or confidential material be released to the public for re-use, but to be aware that contractual confidentiality provisions can be used as a device to restrict circulation of material which may not in fact be sensitive.
[19] Specimen clauses on this particular issue can be found in the “Trusted Computing and Digital Rights Management Standards and Guidelines” (July 2007), available at http://www.e.govt.nz/policy/tc-and-drm/standards-guidelines-07
[20] To avoid doubt, ordinarily the irrevocable nature of Creative Commons licences ought not to be a cause for concern. It is, however, an important consideration to take into account prior to licensing.
