In Development

NZGOAL

Introduction

Background

Policy Principles

Explanation of NZGOAL Licenses and Tools

Review and Release Process

Appendix 1 - Glossary of Terms

Appendix 2 - Key Features of New Zealand Copyright Law

Introduction

83  It is recommended that State Services agencies follow the review and release process set out below before releasing information, data or copyright works for re-use, with assistance where required from their legal teams. The process consists of six main stages:

• copyright-related rights evaluation;
• evaluation of restrictions;
• re-use rights selection;
• application of no-known-rights statement or licence;
• format selection; and
• release.

84  Each stage contains one or more issues that may need to be worked through. The stages and the issues within them reflect a mixture of the NZGOAL Policy Principles, legal requirements and practical considerations.

85  It can be important to work through these steps to ensure that the agency:

• has all relevant rights in the information, data or copyright work that it proposes to release;
• uses “no known rights” statements when appropriate, Creative Commons licences when appropriate, a restrictive licence when appropriate, or does not release the information, data or work at all when one or more of the prohibitive restrictions apply; and
• does not expose either itself or those who may re-use the information, data or copyright work to liability or related risk.

86  A decision tree for the review and release process is set out at paragraph 135 below.

Stage 1: Copyright-related rights evaluation

87  The first stage involves:

• clearly identifying the boundaries of the information, data or work that the agency proposes to release; and then
• determining:
  • whether the information, data or work to be released constitutes a copyright work; and, if so
  • who owns that copyright, with a view to determining whether it can, in principle, be the subject of a copyright licence.

88  This can entail consideration of some or all of the issues set out below.

Qualifying original work

89  Does the information, data or work constitute a copyright work under the Copyright Act, i.e., is it an original:

• literary, dramatic, musical, or artistic work;
• sound recording;
• film;
• communication work; or
• typographical arrangement of a published edition,

whose period of copyright protection has not expired?

90  If the information, data or work does not constitute a copyright work, the copyright analysis ceases and the agency can skip to Stage 2.

Copyright ownership

91  If the information, data or work does constitute a copyright work, questions of copyright ownership need to be considered. Who owns the copyright in the work?

Singular works

92  In the context of NZGOAL and its focus on State Services agencies, this question is likely to entail consideration, in the first instance, of who created the work and in what circumstances:

1. employees and contractors of the “Crown” (as defined; see paragraph 163 below): where a work is made by a person employed or engaged by the Crown under a contract of service, a contract of apprenticeship, or a contract for services, the work qualifies for copyright and the Crown is the first owner of any copyright in the work, unless the parties to the contract agree otherwise;[33]
2. employees of other State Services agencies (e.g., Crown entities): where an employee makes, in the course of his or her employment, a literary, dramatic, musical, or artistic work, that person’s employer is the first owner of any copyright in the work, unless the parties to the contract agree otherwise (which is rare);[34]
3. contractors of other State Services agencies (e.g., Crown entities): where a person commissions, and pays or agrees to pay for, the taking of a photograph or the making of a computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording, and the work is made in pursuance of that commission, that person is the first owner of any copyright in the work, unless the parties to the contract agree otherwise.[35]

Note that there is a significant difference in who owns copyright in a commissioned literary work depending on whether the State Services agency is part of the “Crown” (Ministers, departments, Offices of Parliament) or not (e.g., Crown entities, Reserve Bank of New Zealand). In the case of Crown copyright, the default position is that copyright ownership of all types of literary works commissioned by the Crown vests in the Crown. By contrast, for other agencies, first ownership of a commissioned literary work (other than a computer program) vests in the author. (In both cases, the default position is subject to agreement to the contrary by the commissioner and the commissioned party.)

Composite works/compilations

93  Paragraph 92 above assumes that the copyright work in question is singular or indivisible, that is, it is not a compilation of distinct components, some of which are copyright and owned by the agency, with others having been sourced from third parties.

94  Copyright ownership questions can be more complex in the case of works such as compilations which contain discrete components sourced from third parties.[36] If an agency proposes to release and license such a composite work for re-use, before doing so it will need to consider, for each discrete third party component, whether the agency has sufficient rights to do so. An agency may have sufficient rights to do so if:

• in the case of components which themselves are copyright works:
  • the agency:
    • commissioned the component work from a third party and, under either the Copyright Act or an express contractual provision, was the owner of copyright in the work (as to which, see paragraphs 92(a) (relevant to the Crown) and 92(c) (relevant to other agencies) above); or
    • obtained a licence from the commissioned party allowing it to sub-license the copyright component as part of a wider work and in sufficiently broad terms;

    and

  • there is otherwise no contractual restriction on licensing the work for re-use; or
• in the case of components which themselves are not copyright works, there is no contractual restriction on including the component within a wider work and licensing that wider work for re-use.

Position where agency did not at time of content creation own some or all of copyright or otherwise obtain licence allowing sub-licensing

95  In situations where the agency did not at the time of content creation own some or all of the requisite copyright in the work it proposes to release for re-use or otherwise have a licence allowing it to do so, it may nevertheless be able to licence the work for re-use if, before doing so, it can first, to the extent required:

• obtain an assignment of copyright from the copyright owner;[37] or
• obtain from the relevant copyright owner(s) a right to sub-license the work, or relevant third party components, on the terms of the preferred Creative Commons or restrictive licence.

96  If this is not possible, the agency should not attempt to license the wider work for re-use.

No exclusive licensing

97  The final point to note under Stage 1 is that, if an agency owns copyright in a work it is proposing to release and license for re-use, but has already granted an exclusive licence to another party, then it will have prevented itself from licensing the work to others under a Creative Commons or restrictive licence. In such circumstances, to license the work on either Creative Commons or restrictive terms, the agency would need to either:

• await expiry of the exclusive licence (assuming it is for a period shorter than the duration of the copyright in the work); or
• renegotiate the terms of the licence it has already granted to the exclusive licencee, with a view to removing the exclusivity and allowing the agency to license the work on the relevant Creative Commons or restrictive terms.

Stage 2: Evaluation of restrictions

98  If an agency has completed Stage 1 and concluded either that:

1. there are no copyright-related rights in the information, data or work that it proposes to release for re-use; or
2. it does have the requisite copyright-related rights to release the copyright work for re-use (either in the form of owning all relevant copyright or, to the extent it does not, having one or more licences which allow sub-licensing on sufficiently broad terms),

then the NZGOAL Policy Principles recommend, respectively, that:

3. the non-copyright information, data or work be released on open access terms; or
4. the copyright work be released and licensed for re-use with the Creative Commons Attribution (BY) licence,

unless a restriction set out in paragraph 37 applies.

99  For each proposed release, the restrictions need to be considered in the light of all the surrounding circumstances relevant to the specific information, data or work and its release.

100  In many instances, the exercise will be quick as none of the restrictions will apply. In that event, the agency can move to Stage 4 below. This is because the recommendation in paragraph 98(c) or 98(d) (as applicable) will not have been displaced.

101  If one or more of the restrictions applies, it may displace the recommendation in paragraph 98(c) or 98(d) (as applicable). Where that is the case, then:

• in the case of non-copyright information or data or a non-copyright work, the relevant restriction(s) may:
  • prevent any release of it at all, in which case the analysis stops at this point; or
  • be able to be accommodated through release of the information, data or work on restricted contractual terms to a restricted audience, in which case one can move to Stage 3 below;
• in the case of a copyright work, the relevant restriction(s) may:
  • prevent any licensing of the work at all, in which case the analysis stops at this point; or
  • be able to be accommodated through release and licensing with either another Creative Commons licence or, if that is not possible, the NZGOAL restrictive licence, in which case one can move to Stage 3 below.

102  In some cases, restrictions may apply only to discrete portions of non-copyright information, data or works or to copyright works that an agency proposes to release. In that event, the agency may wish to consider whether it could release an amended version of the information, data or work with those discrete portions removed. Whether an agency wishes to do so and whether it makes sense to do so is a matter entirely for the agency’s discretion. It may be the case, for example, that removing the discrete portions would result in incomplete, misleading or comparatively useless information or data or an incomplete, misleading or comparatively useless work.

103  If an agency decides to produce an amended version, the agency can proceed to Stage 3 below.

Stage 3: Re-use rights selection

104  Stage 3 applies where one or more restrictions have been identified at Stage 2 but those restrictions are not such as to completely prevent release of the information, data or copyright work.

105  Where no restriction was identified at Stage 2 to displace the Open Access Principle or the Open Licensing Principle, as applicable, the agency should move to Stage 4.

Non-copyright information, data or works

106  Where, in the case of non-copyright information or data or a non-copyright work, the relevant restriction(s) can be accommodated through release of the information, data or work on restricted contractual terms to a restricted audience, it is up to the agency to decide whether to do so. There may, for example, be no immediate demand. If there is demand, it is for the agency to exercise its discretion as it sees fit. So far as NZGOAL is concerned, the analysis stops at this point, as the matter becomes one of restricted contractual provisioning.

Copyright works

107  Where, in the case of a copyright work, the restrictions can be accommodated through release and licensing with another Creative Commons licence, the agency should, before selecting the licence, take into account:

• the nature of the relevant restriction(s); and
• the Creativity, Authenticity and Non-Discrimination Principles set out in paragraphs 40-41 of the NZGOAL Policy Principles.

108  Having taken those matters into account, it is for the agency to determine which of the Creative Commons licences is most appropriate in all the circumstances. Having done so, the agency should proceed to Stage 4.

109  Where the restrictions can be accommodated only through use of the NZGOAL or other restrictive licence, it is up to the agency to decide whether to do so. There may, for example, be no immediate demand. If there is demand, it is for the agency to exercise its discretion as it sees fit. So far as NZGOAL is concerned, the analysis stops at this point, as the matters becomes one of restricted licensing, using NZGOAL’s restricted licence as required.

Stage 4: Application of no-known-rights statement or Creative Commons licence

Introduction

110  This description of Stage 4 explains how agencies go about applying the NZGOAL licences and tools. In particular, it explains:

• how to mark non-copyright information and data with an appropriate “no known rights” statement; and[38]
• how to apply a Creative Commons licence to copyright works.

111  Restrictive licences are expected to be customised to the individual circumstances of any given release, in consultation with the agency’s legal team. For that reason, there is no separate treatment below of how to complete and mark the restrictive licence.

How to mark non-copyright information and data with an appropriate “no known rights” statement

112  As noted at paragraphs 76-78 above, pending release of Creative Commons’ new public domain certification tool and evaluation of it for inclusion in NZGOAL, agencies releasing material which is not subject to copyright or other intellectual property rights are encouraged to add a statement at the point of release (and in the material itself if practicable) to this effect:

“To the best of [name of agency]’s knowledge:

• there is no copyright or other intellectual property rights in this [identify material in question]; and
• it may be copied and otherwise re-used without copyright-related restriction.

[While [name of agency] has sought to ensure there are no intellectual property rights in the material that would prevent copying and other re-use, please note that the [identify material in question] is released on an as-is basis and with no representations or warranties of any kind, to the greatest extent permissible by law. Subject to any liability which may not be excluded or limited by law, [name of agency] shall not be liable on any legal basis (including without limitation negligence) and hereby expressly excludes all liability for loss or damage howsoever and whenever caused to you.]”

113  The last paragraph in square brackets is optional. Its purpose is to protect the releasing agency from liability in the event that:

• there are, in fact, intellectual property-related restrictions on copying or other re-use of the released material; or
• someone relies on the released material in a way which subsequently causes harm (e.g., economic loss).

114  It is for the releasing agency to determine whether there is any risk warranting the inclusion of that paragraph.

Applying Creative Commons licences

115  Where an agency has determined that:

• material it wishes to release on terms allowing re-use is a copyright work; and
• a Creative Commons licence is to be used to license that work,

it needs to apply the appropriate Creative Commons licence markings before releasing the work.

116  The means by which a Creative Commons licence is applied depends on whether the relevant work is:

• a document or other work that is not conveyed electronically or is conveyed electronically but can be consumed in an offline environment (e.g., a PDF document that can be printed); and/or
• a work that is released electronically, or consists of or is contained in, website pages.

117  As discussed in more detail below, it is strongly recommended that State Services agencies that apply Creative Commons licences to hard copy/non-electronic works also announce the availability of the work and the relevant Creative Commons licence terms electronically, whether:

• on its own website (and preferably including the announcement as an item within the site’s Atom or (if not available) RSS feed so that the item can be imported into one or more centralised online repositories); or
• on the [to be determined] website. [As at the date of public release of the draft NZGOAL, details of such website were still being considered]

118  Both of these alternatives are explained below.

Applying the licences to literary and other copyright works that can be consumed in an offline environment

119  Documents and other works that are not conveyed electronically or are conveyed electronically but can be consumed in an offline environment should contain:

• the minimum markings set out in the table below for each Creative Commons licence; and
• any of the recommended markings set out in the table below which the agency wishes to add to the work.[39]

Table: Minimum and recommended markings

Minimum markings		Recommended markings (The portion in square brackets, “[In essence, ... other licence terms]” is optional but recommended. If included, remove the square brackets. Also be sure to replace “[name of agency/licensor]” as appropriate.)
Licence name:	Creative Commons Attribution (BY)
Licence image:	(Linked to licence URL in electronic versions (e.g., PDF, Word, Excel, etc)	Copyright licensing statement: This work is licensed under the Creative Commons Attribution 3.0 New Zealand licence. [In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to [name of agency/licensor] and abide by the other licence terms.] To view a copy of this licence, visit http://creativecommons.org/licenses/by/3.0/nz/
Licence URL link:	http://creativecommons.org/licenses/by/3.0/nz/
Licence name:	Creative Commons Attribution-Noncommercial (BY-NC)
Licence image:	(Linked to licence URL in electronic versions (e.g., PDF, Word, Excel, etc) For non-commercial licences, like BY-NC, agencies may also wish to consider using the CC+ tool to specify additional licensing or contacts for commercial use, as to which see paragraphs 81-82 above.	Copyright licensing statement: This work is licensed under the Creative Commons Attribution-Noncommercial 3.0 New Zealand licence. [In essence, you are free to copy, distribute and adapt the work for non-commercial purposes, as long as you attribute the work to [name of agency/licensor] and abide by the other licence terms.]. To view a copy of this licence, visit http://creativecommons.org/licenses/by-nc/3.0/nz/.
Licence URL link:	http://creativecommons.org/licenses/by-nc/3.0/nz/
Licence name:	Creative Commons Attribution-No Derivative Works (BY-ND)
Licence image:	(Linked to licence URL in electronic versions (e.g., PDF, Word, Excel, etc)	Copyright licensing statement: This work is licensed under the Creative Commons Attribution-No Derivative Works 3.0 New Zealand licence. [In essence, you are free to copy and distribute the work (including in other media and formats), as long as you attribute the work to [name of agency/licensor], do not adapt the work and abide by the other licence terms.] To view a copy of this licence, visit http://creativecommons.org/licenses/by-nd/3.0/nz/.
URL link:	http://creativecommons.org/licenses/by-nd/3.0/nz/
Licence name:	Creative Commons Attribution-Noncommercial-No Derivative Works (BY-NC-ND)
Licence image:	(Linked to licence URL in electronic versions (e.g., PDF, Word, Excel, etc) For non-commercial licences, like BY-NC-ND, agencies may also wish to consider using the CC+ tool to specify additional licensing or contacts for commercial use, as to which see paragraphs 81-82 above.	Copyright licensing statement: This work is licensed under the Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 New Zealand licence. [In essence, you are free to copy and distribute the work (including in other media and formats) for non-commercial purposes, as long as you attribute the work to [name of agency/licensor], do not adapt the work and abide by the other licence terms.] To view a copy of this licence, visit http://creativecommons.org/licenses/by-nc-nd/3.0/nz/.
Licence URL link:	http://creativecommons.org/licenses/by-nc-nd/3.0/nz/

Licence name:	Creative Commons Attribution-Share Alike (BY-SA)
Licence image:	(Linked to licence URL in electronic versions (e.g., PDF, Word, Excel, etc)	Copyright licensing statement: This work is licensed under the Creative Commons Attribution-Share Alike 3.0 New Zealand licence. [In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to [name of agency/licensor] and abide by the other licence terms. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same, similar or a compatible licence.] To view a copy of this licence, visit http://creativecommons.org/licenses/by-sa/3.0/nz/.
Licence URL link:	http://creativecommons.org/licenses/by-sa/3.0/nz/
Licence name:	Creative Commons Attribution-Noncommercial-Share Alike (BY-NC-SA)
Licence image:	(Linked to licence URL in electronic versions (e.g., PDF, Word, Excel, etc)	Copyright licensing statement: This work is licensed under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 New Zealand licence. [In essence, you are free to copy, distribute and adapt the work for non-commercial purposes, as long as you attribute the work to [name of agency/licensor] and abide by the other licence terms. If you alter, transform, or build upon this work, you may distribute the resulting work only under the same, similar or a compatible licence.] To view a copy of this licence, visit http://creativecommons.org/licenses/by-nc-sa/3.0/nz/.
Licence URL link:	http://creativecommons.org/licenses/by-nc-sa/3.0/nz/

120  As noted above, it is strongly recommended that State Services agencies that apply Creative Commons licences to hard copy/non-electronic works also announce the availability of the work and the relevant Creative Commons licence terms electronically, whether:

• on its own website (and preferably including the announcement as an item within the site’s Atom or (if not available) RSS feed so that the item can be imported into one or more centralised online repositories); and/or
• on the [to be determined] website. [As at the date of public release of the draft NZGOAL, details of such website were still being considered].

121  The reason for this is to two-fold:

• to make State Services agencies’ Creative Commons-licensed works more readily available to the public; and
• to enable search engines and other tools to crawl and, where available, read the underlying metadata.

122  In the first instance, it is recommended that, to the extent practicable, agencies make an announcement on their own websites of copyright works which they are releasing under a Creative Commons licence. This can be done either on a page describing the work or its general surrounding subject matter or a discrete news item in a news area of the site (where available). The process is explained at paragraphs 124-128 below.

123  To the extent that it is not practicable for agencies to make an announcement on their own websites, they are strongly encouraged to make an announcement on the [to be determined] website. [As at the date of public release of the draft NZGOAL, details of such website were still being considered]

Applying the licences to copyright works constituted by, contained within or linked to from, website pages

124  Creative Commons licences are applied to copyright works which are constituted by website pages, contained within website pages or linked to from website pages, through the insertion of a snippet of HTML code in the relevant webpage(s).

125  The process of obtaining and applying the HTML code is straight-forward:

• visit the Creative Commons licensing page at http://creativecommons.org/choose/;
• select the appropriate licensing options (e.g., to select the Creative Commons Attribution licence, select “Yes” to the question “Allow commercial uses of your work?” and “Yes” to the question “Allow modifications of your work?”);
• select “New Zealand” in the drop-down menu under “Jurisdiction of your license”;
• fill out the additional fields in the “Additional Information” box, to the extent they are relevant (and otherwise leave blank);[40] and
• click on the “Select a Licence” button.

126  After following the steps above, you will see a screen with a box containing some HTML code. Copy that text into your computer’s memory (PC: Ctrl-C) (Mac: Command-C).

127  Next, paste the code into the relevant page or post on your website. For example, if an agency were releasing a copyright work via a post on a WordPress powered website, it would add the HTML into the post content screen, as follows:

128  The saved post, in this example, would look something like this when published:

129  Note that we “humans” only see what we need to see. The rest of the metadata is embedded in the webpage for search engines and similar tools.

Stage 5: Format selection

130  Before releasing the relevant information, data or copyright work, the agency should consider the formats in which it ought to be released.

Where agency knows users’ format preferences

131  If the agency already knows the formats in which users of the information, data or work would like or are most likely to see it provided, the agency should – to the greatest extent practicable – prepare the material for release in those formats.

Where agency does not know users’ format preferences

132  If the agency does not know the formats in which users of the information, data or work would like or are most likely to see it provided, it should either:

• seek public feedback on the desired format(s) before release; or
• prepare the material for release in one or more standards-compliant formats with a view to asking recipients, after release, whether they are satisfied with those format(s).

Proprietary and non-proprietary formats

133  To the extent that information, data or a copyright work is provided in a proprietary format (such as Microsoft Word), the agency should endeavour to provide it in one or more open, non-proprietary formats.

Stage 6: Release

134  When the information, data or copyright work is ready for release, the agency should:

• consider the various channels through which it could be released (whether governmental and/or third party operated), selecting those which are most appropriate in all the circumstances;
• consider whether to use press releases and/or social media to publicise the release and maximise uptake; and
• release!

NZGOAL Review and Release Process Decision Tree

135  The decision tree below explains in diagrammatic form the NZGOAL Review and Release Process explained above. It is intended to be read in conjunction with the explanations above of each of the six stages.

Diagram: NZGOAL Review and Release Process decision tree

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[33] Section 26(1) and (6) of the Copyright Act 1994.

34] Section 21(2) and (4) of the Copyright Act 1994.

[35] Section 21(3) and (4) of the Copyright Act 1994.

[36] As noted in Appendix 2 below, the Copyright Act’s definition of “literary work” includes a “table or compilation”, and the definition of “compilation” includes “a compilation consisting wholly of works or parts of works, a compilation consisting partly of works or parts of works, and a compilation of data other than works or parts of works”.

[37] An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor: section 114 of the Copyright Act 1994.

[38] This part may be updated in the near future if Creative Commons’ new public domain assertion tool, once released, is considered appropriate for inclusion in NZGOAL.

[39] SSC acknowledges and thanks the Queensland Government for its documented approach to applying Creative Commons licences, on which the table above is based.

[40] Agencies are strongly encouraged to provide details for all relevant fields in the “Additional Information” box, including the “Title of work” which should match the work being licensed.