Background

Intellectual property and copyright

Intellectual property refers to creations of the mind, such as inventions, artistic works or designs. Intellectual property rights give the creator an exclusive right over the use of her creation for a certain period of time. Different types of intellectual property rights exist, such as patents (for inventions), trademarks (for brands), or copyright (for creative works). Copyright may apply to a wide range of creative, intellectual or artistic works, including data.

The default: “all rights reserved”

Publishing something online does not mean it can be used freely. Without a license agreement, the default is copyright law. If data are published without offering a license, the copyright holder reserves, or holds for her own use, all the rights provided by copyright and related law. Using such data without consent of the owner can be a copyright infringement. This is the case even without explicitly stating “all rights reserved”.

Licenses

A license is a contract by which the licensor (data owner) allows the licensee (data user) to use otherwise protected material, such as intellectual property. Licenses for intellectual property are usually written specifically for certain types of property, such as software (code), creative works (literature, music or photography) or databases. License agreements are sometimes labelled “Terms of Use” and can be found in the “Disclaimer” or “Impressum” section of a website.

Custom vs. standard licenses

For a licensing agreement, one can either draft a new, tailor-made (custom) license or use established (standard) licenses such as a Creative Commons license. Using standard licenses makes life easier for both parties. Content and scope are well understood; the legal text is rigorously written, unambiguous, and suitable for legal systems across the globe; it is also available in many languages. To reach such high standards, dozens of experts have worked on such standard licenses for years. A simple version in plain language and lay terms is available. Nevertheless, most owners of energy data currently use custom licenses.

Copyright on data

A single datum is not protected under copyright, as it does not surpass the threshold of originality. Structured or organized data, however, can fall under copyright. In other words: data is not protected by copyright, but databases might be. The details vary by country. The UK, for example, requires that “the database constitutes the author’s own intellectual creation”. That is the case if skill, labor and creativity were directed to the selection and arrangement of the database, and not the mere gathering of information. Ordering data chronologically is unlikely to meet this standard.

So . . . is a database protected, or not?

There is no simple answer. Pinsent Masons, a law firm, provides a helpful article on copyright and database right, including European Court of Justice rulings on the matter. Wikilegal provides further details, concluding that “it can be difficult to determine whether, or the extent to which, a database or its contents are protected by law . . . Whenever possible, the best course is to use only content that is made available by the author under an open license.” (See also discussion page.)

“Data” vs. “Database”

A database is an organized collection of data. The term “database” describes organized or structured data, not the software or hardware that is used to organize or store it (even though it is often used like this). The EU has defined a database as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”.

EU Database Directive

Next to copyright, there is a second legal regime in the European Union that establishes intellectual property rights on databases. In 1996, the EU adopted the Database Directive (96/9/EG, see legal text). This directive introduced a new (suis generis) type of intellectual property exclusively for databases. The Directive creates property rights for all databases, including those that do not qualify for copyright. The only requirement is that “substantial investment” was made to obtain, verify or present the data. In the UK, the derived right is called “database right”, as opposed to “copyright”. In Germany, the Directive is implemented as Datenbankherstellerrecht.

Publication obligations: REMIT & co.

In most European countries, power system operators and market actors are obliged to publish certain information. Since REMIT (Regulation on Wholesale Energy Markets Integrity and Transparency) was adopted in 2011, both system operators and market participants are obliged to publish a range of “transparency data”. However, publication obligations do not require data owners to waive property rights. [work in progress]

What is “open data”?

“Open data and content can be freely used, modified, and shared by anyone for any purpose” (Open Definition). Specifically, data must satisfy the following three conditions: it must be available under an open license; it shall be available as a whole and at no more than a reasonable one-time reproduction cost, preferably downloadable via the Internet; and it must be provided in a convenient and modifiable form, machine-readable, available in bulk and provided in an open format.

Resources for open data licenses

Open Definition and the Open Energy Modelling Initiative provide an overview of licenses suited for open data. Open Data Commons has developed a set of licenses specifically for data. Both Open Definition and Open Data Commons are projects of Open Knowledge.

Licensing databases vs. other works

License agreements for databases require some specific provisions. They need to address not only copyright, but also neighbouring rights such as the EU Database Directive, and they need to define what a derivative work of a database would be. Creative Commons licenses, known from Wikipedia, were originally developed for creative works. Earlier versions of these licenses lack specific provisions for databases, but version 4 is suitable for databases. Open Data Commons licenses were developed specifically for databases.

Not recommended

During the last years, many new data licenses were drafted, often by governments. Examples include the Datenlizenz Deutschland (used by Bundesnetzagentur), the Open Government Licence Canada or the Open Government Licence UK. Open Definition recommends not to use them. Creative Commons licenses that carry the attributes NonCommercial or NoDerivatives are classified as “not free“; they are not open licenses.

All rights waived: Public domain licenses

Under these license agreements, all rights provided by copyright and EU Database law are waived. They follow the idea of Public Domain, an Anglo-Saxon legal concept unknown in Continental European law. Data published under these licenses can be used by anyone for any purpose.
Creative Commons Zero (CC0)
Open Data Commons Public Domain Dedication and License (PDDL)

Name the author: Attribution licenses

Attribution licenses require one to name the author(s).
Creative Commons Attribution (CC-BY) 4.0
Open Data Commons Attribution (ODC-BY)

Copyleft: Share alike licenses

Copyleft or “share alike” licenses require that databases, if amended or modified, be published under the same license as the original database. They typically also require attribution.
Creative Commons Attribution Share-Alike (CC-BY-SA) 4.0, used by Wikimedia Commons. Wikipedia uses Version 3.0 of the license, but began a consultation process to upgrade to version 4.0 in late 2016.
Open Data Commons Open Database License (ODbL), the license is used by OpenStreetMap