Towards an Open Definition clause for law

[ppKrauss]

Thinking about law documents in any country. Example: law-docs repository of EU-countries, law-docs repo of BR, law-docs repo of UK, etc. ... millions of documents (!).

Statutory law documents (acts and any other statutory "obligation norm") usually have not an explicit licence, or link or icon indicating the kind of licence (ex. by-nd link) of the document... It is implicit by some (usually hidden/unknown) other law... But we can talk about "law-doc licences", and its terms.

So, we can imagine that, democratic countries use, typically, Open licences... The law-doc licence must satisfy the Open Definition... "must"? But is Open Definition 2.0 enought??

In this discussion (link) is shown that law (of democratic countries) need "contamination by citation", that is, law-doc lincence needs a permission clause for this mechanism.

PROPOSAL: create a "law-doc licences" task force, first to check or do a survey of concrete law-doc licences, then a discussion about addiction of a new section 2.2.X clause (Acceptable Conditions) in the OpenDefinition, that meets the "contamination by citation" principle; and any other adaptation (see below) need for real applications in law repositories of democratic countries.

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Notes, context and rationale

... sorry my english... and... a proposal in this place is valid? (can I post as issue?)...

• The share-alike (2.2.3) problem: reuse of law-documents are valid, and is usual some city reuse and adapt law from other city... to transform into a template and reuse, this is a case of share-alike. But a specific law (instance not template) can't be "adapted" (share-alike), because "adaptation" of law is a falsification.
• The compilation (2.1.5) problem: perhaps needs the indication of a minor exception, for law-docs citations.
• "Pay for norm" is a trade barrier in the case of (example) ISO standards, and this barrier is amplified when you are in a development country... If a law-document cites another document (another law, an ISO, a map, etc.), the licence must be propagated to the cited document. ... This is the economic rationale for the "contamination by citation" principle...

[mlinksva]

If you want a document cited in a law document to automatically be made open by virtue of being cited in a law document, that's not something a copyright license can accomplish. It calls for a new copyright exception, i.e. a change in public policy.

If you want law documents to use a license which prohibits derivatives from citing non-open documents, I really doubt that will be considered opendefinition.org compliant by anyone, nor that it would make sense to alter the definition for this case. Your want calls for another change in public policy, requiring that any new law cite only open documents.

Both public policy changes sound great to me, but will be very difficult to obtain, and can't be mandated by open licenses. Though open license mandates can help get to a world in which the policy changes are more feasible.

Do I misunderstand?

[ppKrauss]

@mlinksva Thanks. This post was long and I edited (need a permalink to my old comment version?).

To reduce my "verbose pullution" at this discussion, the details and explanations was moved to this local Wiki, "Citation-alike clauses of open licenses for law".

Below inline answers.

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If you want a document cited in a law document to automatically be made open by virtue of being cited in a law document, that's not something a copyright license can accomplish. It calls for a new copyright exception, i.e. a change in public policy.

Each country have its public policy, and the intention is not to change it. In some countries it is a constitutional rule... The intention here is only to create/support a standard description in the form of licence (OpenDefinition can host this standard description).

I say "we can imagine that (...)" because is the only thing that we can do.

If you want law documents to use a license which prohibits derivatives from citing non-open documents,

Not I, but the democratic principle... Suppose that it is a fact for some countries. (see Wiki for more details)

I really doubt that will be considered opendefinition.org compliant by anyone, nor that it would make sense to alter the definition for this case. Your want calls for another change in public policy, requiring that any new law cite only open documents.

Yes, make sense... But the propuse here is only to include the citation-alike option (explained also in the wiki), so we can describe, in theory, any kind of open license, incluing very specific "licenses for law documents of some democratic countries" (where citation-alike is used).

[BrucePerens]

I think you could do this with contract law rather than copyright law. There would have to be contract terms regarding citation that were agreed to before you could copy or otherwise use the license. It's not clear, though, that doing this would fit our own definition of "open".

On Thu, Jul 16, 2015 at 3:48 AM, Peter notifications@github.com wrote:

@mlinksva https://github.com/mlinksva Thanks for hosting this kind of discussion (and my something exotic long explanations).

Perhaps the first step to discuss with somebody is asking: "hey, do you agree that 'contamination by citation' is really a democratic need?" If it is a wrong principle/hypothesis, it is wrong to waste time discussing consequences of the principle.

The second step, I will explain in the PS below, is remember that, for all this discussion, "law-doc license" is an a priory choice, not an

author's choice.

If you want a document cited in a law document to automatically be made open by virtue of being cited in a law document, that's not something a copyright license can accomplish. It calls for a new copyright exception, i.e. a change in public policy.

Each country have its public policy, and the intention is not to change it. In some countries it is a constitutional rule https://en.wikipedia.org/wiki/Constitution... The intention is only to create/support a standard description in the form of licence (OpenDefinition can host this standard description).

I say "we can imagine that (...)" because is the only thing that we can do. The idea of "survey of concrete law-doc licences" is a kind of interpretation and statistical analysis, like many that OKFN do checking transparency of a country.

If you want law documents to use a license which prohibits derivatives from citing non-open documents,

Not I, but the democratic principle... The hypothesis is that: if it not occurs, democracy is not complete.

I really doubt that will be considered opendefinition.org compliant by anyone, nor that it would make sense to alter the definition for this case. Your want calls for another change in public policy, requiring that any new law cite only open documents.

Yes, make sense... Perhaps this is another starting point: how to express a democratic principle?

PS: in general, for creative works, the license is something that the author adds, is an author's choice. Law is another kind of work, and the "law-doc license" is not an author's choice, the law-author must only to respect the standard-license of the specific law-system.

I have some difficulty to express with my bad-English, perhaps you can help to translate it into good-English... The point (of the principle) is: a law that express obligations to the citizens, must make a chance to citizen-obligation-compliance without obligating citizen to waste money (or time) to access it.

... If, and only if, it is a valid and universal democratic principle, will make sense to include a specialized clause in OpenDefinition, to

explore the licence option of full-openness of law-documents.

OpenDefinition is a "metalicense", not a license... Is difficult to talk about "metathings"... Illustrating use cases of the law-doc specialized licenses:

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in OKFN (and similar) reports, to express the kind of openness of the legislation of a country.

in other type (not countries) of real life democratic communities, like condominiums, cooperatives, etc. They also produce "law" and can do concrete use of "law-doc licences".

— Reply to this email directly or view it on GitHub https://github.com/okfn/opendefinition/issues/114#issuecomment-121924463 .

[ppKrauss]

@BrucePerens sorry if was confuse, I explaning better at this local Wiki link, https://github.com/okfn/opendefinition/wiki/Citation-alike-clauses-of-open-licenses-for-law

I think you could do this with contract law rather than copyright law.

hum... the focus here are "documents that are the law" (in US they are the Acts)... I never see a copyright in a law-document ("obligation norms"), only in voluntary norms like ISO... But I am not an expert.

There would have to be contract terms regarding citation that were agreed to before you could copy or otherwise use the license. It's not clear, though, that doing this would fit our own definition of "open".

The "contract" behind of the set of the laws of a country, is the country's Constitution... We not want to change this "contract" ;-) ... We want only to describe what kind of licence is possible to interpret from it... that is, imagining a standard license used in all law-documents. In some OKFN reports, like okfn/opendatacensus/legislation, we need this imagination (there are free interpretations about access law-documents).

[BrucePerens]

I never see a copyright in a law-document ("obligation norms"), only in voluntary norms like ISO... But I am not an expert.

Under the Bern Copyright Convention of sometime in the 1980's, works are copyrighted by default with all rights reserved. This is a treaty convention which essentially all countries have accepted.

It used to be that works were in the public domain until copyright was declared. Now, everything is copyrighted instantly. So, if legal documents don't have a license attached to them, you can assume it's "All Rights Reserved", which is the default under the law.

Licenses are contracts. Free Software folks distinguish the Free Software licenses from contracts because the Free Software licenses do not take away any rights. But the court would still read all of our licenses as contracts. There is no other way for the court to process them. Of course they are interpreted in the framework of the constitution, as well as all of the applicable law, and all applicable case law.

If you want to make a license that encumbers (don't say "contaminates", it's pejorative) a work through reference, you would do so by copyrighting your work, and then offering it with a contract that does take away some rights in exchange for others. So, it would be different from a Free Software license and our definition of "Open" in that regard. You would offer the right to make use of the referred-to work in exchange for the encumberance that the user would be bound contractually to perform your specified actions whenever they referred to your document in another document.

It's probably possible to do this, although it could be argued that someone could refer to a document without actually using it, and that the copyright would thus not be infringed.

I am not sure, though, that this fits the agenda of any open project.

Thanks

Bruce

On Thu, Jul 16, 2015 at 12:49 PM, Peter notifications@github.com wrote:

@BrucePerens https://github.com/BrucePerens sorry if was confuse, I explaning better at this local Wiki link,

https://github.com/okfn/opendefinition/wiki/Citation-alike-clauses-of-open-licenses-for-law

I think you could do this with contract law rather than copyright law.

hum... the focus here are "documents that are the law" (in US they are the Acts)... I never see a copyright in a law-document ("obligation norms"), only in voluntary norms like ISO... But I am not an expert.

There would have to be contract terms regarding citation that were agreed to before you could copy or otherwise use the license. It's not clear, though, that doing this would fit our own definition of "open".

The "contract" behind of the set of the laws of a country, is the country's Constitution... We not want to change this "contract" ;-) ... We want only to describe what kind of licence is possible to interpret from it... that is, imagining a standard license used in all law-documents. In some OKFN reports, like okfn/opendatacensus/legislation https://github.com/okfn/opendatacensus, we need this imagination (there are free interpretations about access law-documents).

— Reply to this email directly or view it on GitHub https://github.com/okfn/opendefinition/issues/114#issuecomment-122069040 .

[ppKrauss]

Hi, I was excited, with my "verbose mode" enabled ;-) Now I will slowly and making some homework to understand all your points in depth... I will reply only one point at a time (I not forgot the rest!)

Under the Bern Copyright Convention of sometime in the 1980's, works are copyrighted by default with all rights reserved. (...)

It used to be that works were in the public domain until copyright was declared. Now, everything is copyrighted instantly. So, if legal documents don't have a license attached to them, you can assume it's "All Rights Reserved", which is the default under the law.

Good points. I think this is what occurs with US law (Acts), but I am from Civil Law universe and perhaps make mistakes about contractual visiuon and contractual modus operandi of Common Law... Perhaps a good practice to this discussion, is also to focus on concrete examples.

The concrete examples show that the assertion "if legal documents don't have a license attached to them, you can assume it's 'All Rights Reserved'", on my interpretation, is false:

• offcial gpo.gov PDF of US-Constitution: no explicit license there, assume it's "All Rights Reserved" by default? It is not an "open work"?
• official PDF of Brazilian's Constitution (and in other official links)... No explicit license there, and it is not an opinion, I can assert that it is open, not copyrighted, is open.
• (aleatory sample) Brazilian Federal act 12.965 of 2014, no license, but it is not copyrighted, is open.
• (aleatory sample) Italian act 456 of 1981, no license, but it is not copyrighted, is open.

Note: in all examples there are "implicit/hidden" contract (where?) that is equivalent to an "open license". This "implicit license" contract need some "mining work" and some dose of interpretation.

PS: the "hidden contract" in Brazil starts from an interpretation that all law-documents are "derived works" of the Constitution. Some of Constitution's articles express the "open license": article 5º (inciso XIV), ensure "everyone access" to legislative information; article 216 (§ 2º) states the "mandatory deductible access" (no pay for law-documents).

[bluechi]

Hi everyone,

Many domestic copyright laws exclude official documents, such as legislations and court decisions, from copyright protection. That's why you don't need a license to make a copy of the constitution. For example, this is the text of Article 8(IV) from the translation of the Brazilian copyright law on WIPO's website http://www.wipo.int/wipolex/en/text.jsp?file_id=125393:

(8) The following shall be excluded from copyright protection within the meaning of this Law: ... IV. the texts of treaties or conventions, laws, decrees, regulations, judicial decisions and other official enactments;

In the US it is a bit different because their law excludes all works created by the federal government not just legislation.

If the document is "an official enactment" - whether or not it is part of the legislation document - then it will also be exempt from copyright protection.

Regards,

Riyadh

On Fri, Jul 17, 2015 at 3:41 PM, Peter notifications@github.com wrote:

Hi, I was excited, with my "verbose mode" enabled ;-) Now I will slowly and making some homework to understand all your points in depth... I will reply only one point at a time (I not forgot the rest!)

Under the Bern Copyright Convention of sometime in the 1980's, works are copyrighted by default with all rights reserved. (...)

It used to be that works were in the public domain until copyright was declared. Now, everything is copyrighted instantly. So, if legal documents don't have a license attached to them, you can assume it's "All Rights Reserved", which is the default under the law.

Good points. I think this is what occurs with US law (Acts), but I am from Civil Law universe https://en.wikipedia.org/wiki/Civil_law_%28legal_system%29 and perhaps make mistakes about contractual visiuon and contractual modus operandi of Common Law https://en.wikipedia.org/wiki/Common_law... Perhaps a good practice to this discussion, is also to focus on concrete examples.

The concrete examples show that the assertion "if legal documents don't have a license attached to them, you can assume it's 'All Rights Reserved'", on my interpretation, is false:

-

offcial gpo.gov PDF of US-Constitution http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-6.pdf: no explicit license there, assume it's "All Rights Reserved" by default? It is not an "open work"?

official PDF of Brazilian's Constitution http://www2.camara.leg.br/legin/fed/consti/1988/constituicao-1988-5-outubro-1988-322142-normaatualizada-pl.pdf (and in other official links http://www.lexml.gov.br/urn/urn:lex:br:federal:constituicao:1988-10-05;1988)... No explicit license there, and it is not an opinion, I can assert that it is open, not copyrighted, is open.

(aleatory sample) Brazilian Federal act 12.965 of 2014 http://legis.senado.gov.br/legislacao/ListaTextoIntegral.action?id=248229&norma=267781, no license, but it is not copyrighted, is open.

(aleatory sample) Italian act 456 of 1981 http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1981-08-06;456, no license, but it is not copyrighted, is open.

Note: in all examples there are "implicit/hidden" contract (where?) that is equivalent to an "open license". This "implicit license" contract need some "mining work" and some dose of interpretation.

PS: the "hidden contract" in Brazil starts from an interpretation that all law-documents are "derived works" of the Constitution. Some of Constitution's articles express the "open license": article 5º (inciso XIV), ensure "everyone access" to legislative information; article 216 (§ 2º) states the "mandatory deductible access" (no pay for law-documents).

— Reply to this email directly or view it on GitHub https://github.com/okfn/opendefinition/issues/114#issuecomment-122252957 .

Riyadh Al Balushi

[mlinksva]

I'm closing this issue as I don't see anything actionable in the context of opendefinition.org. I'd suggest continuing the conceptual discussion on https://discuss.okfn.org/ and/or getting in touch with the https://en.wikipedia.org/wiki/Free_Access_to_Law_Movement

[mlinksva]

ps I meant to start with: good point @bluechi ... IIUC @ppKrauss wants to extend what counts as an official enactment to documents cited by things already considered official enactments. I may misunderstand. :) Feel free to leave a comment about where the conversation is continuing.

[ppKrauss]

Error when try to "sign up" (Create New Account) with Github at https://discuss.okfn.org/

Sorry, there was an error authorizing your account. Perhaps you did not approve authorization?

[rufuspollock]

@ppKrauss can you just sign up normally - discourse sign up may not be working perfectly there atm and we can investigate.

[ppKrauss]

@rgrp , @mlinksva, @bluechi and @BrucePerens thanks for attention and good discussion. The discuss.okfn.org is ok (!), I am trying https://discuss.okfn.org/t/there-are-a-taxonomy-of-law-document-licenses/510

@bluechi, we can continue there?

PS: @BrucePerens I think I will back later to finesh our "in depth" debate, after a long homework :-)