Finance comments on draft open licensing guidelines

Peter Alexander - AGIMO
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A few weeks ago, the Attorney-General’s Department (AGD) used a guest post on this blog to seek feedback on draft public sector information(PSI) licensing guidelines for Australian Government agencies. The new guidelines will play an important role in helping agencies adopt open licences to encourage reuse of PSI.

When an agency releases this kind of policy document, it’s standard practice for other agencies to provide comments. These comments tend to reflect that fact that different agencies will have slightly different perspectives based on their functions or areas of expertise.

AGIMO, as a business group of the Department of Finance and Deregulation, contributed to Finance’s response to the AGD draft PSI licensing guidelines. The Finance response to the draft guidelines was as follows:

Comment 1 - Include a reference to the Declaration of Open Government in the Introduction to the Guidelines

1. Finance recommends referring to the Declaration in the Guidelines as both documents seek to promote Open Government.

Comment 2 - Caveat on examples

2. Finance recommends providing further guidance enabling agencies to determine whether certain material meets the definition of PSI, including:

a. mentioning that the list of examples of types of PSI is not exhaustive, since new types of Commonwealth Copyright Material are likely to be created.

b. emphasising the need for agencies to undertake a due diligence process on a case by case basis to determine whether types of material not specifically mentioned in the definition should be released under an open licence.

3. An indication that the Guidelines and list of examples will be reviewed, and updated from time to time, would be useful.

Comment 5 – Request for standard clauses for inclusion in Commonwealth Contracts

4. Finance clients have requested standard clauses to include in procurement documentation and contracts showing an intention to publish contract material under a Creative Commons BY licence.  For example, see:

Comment 6 – Request for consistency between the Guidelines and the Statement

5. The Statement, under Principle 11(a), sets a lower threshold than the Guidelines by referring to the ‘purpose’ rather than the ‘essential purpose’ for publishing the material which may be described as PSI.  We recommend consistent use of terms in the Statement and Guidelines.

Comment 7 -   Reference to the Australian Governments Open Access and Licensing Framework (AusGOAL) as a diagnostic tool to assist in licensing decisions

6. In addition to the Creative Commons Australia website, the Guidelines refer agencies to AusGOAL as a publicly available diagnostic tool that can be used when making licensing decisions.  Finance, through the Cross Jurisdictional Chief Information Officer Committee, is working to promote the use of AusGOAL at multiple levels of government, and welcomes its inclusion in the Guidelines.

7. AusGOAL alerts agencies to the importance of identifying third party input and the need to negotiate with the holders of intellectual property rights (IPR). However, Finance believes there is a danger that the sometimes complex considerations that apply to licensing IPR may be overlooked. For example, there may be a separate contract between the third party and the agency which deals with IPR or a work may be made under the direction and control of the agency and so Commonwealth copyright by virtue of section 176 of the Copyright Act 1968.

8. Finance recommends that agencies be advised that, in addition to using the diagnostic tools, they may need to obtain specialist legal advice when making licensing decisions.

Comment 8 –  Expand the Guidelines to include mitigation strategies where releasing PSI could create privacy, security, commercial-in-confidence or other valid concerns

9. Finance recommends the Guidelines include greater discussion of mitigation strategies where releasing PSI could create privacy, security, commercial-in-confidence or other valid concerns.

10. Possible mitigation strategies include: addressing privacy concerns by de-identifying PSI to remove personal information: or addressing security or commercial-in-confidence concerns by redacting sensitive material from the PSI.

Comment 9 – Explain suite of available Creative Commons licences in greater detail

11. Finance notes that the Guidelines state that the Creative Commons suite of licences will be explained in greater detail in the revised Australian Government Intellectual Property Manual.  Finance believes that further explanation of Creative Commons and other forms of open licences, particularly those which apply to software, will benefit agencies.

Comment 10 – Implications of reforms to the Freedom of Information Act 1982

12. Finance notes that the Guidelines could refer to agencies’ statutory obligation to publish more information under the reforms to the Freedom of Information Act 1982 (FOI Act), effective from 1 May 2011.  In particular, the FOI Act contains an Information Publication Scheme which will cover the publication of PSI under the Guidelines. This means that the use of appropriate licensing will need to be considered more often.

Comments on this blog are now closed. Please let us know if you would like to discuss this post or have any general comments.

Last updated: 29 July 2016