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Hastings Business Law Journal

Authors

Jyh-An Lee

Abstract

Governments around the world create and collect an enormous and wide-ranging amount of data. For various social, political, and economic reasons, open data has become a popular government practice and international movement in recent years. It is estimated that more than 250 national or local governments from around 50 developed and developing countries have launched open government data (OGD) initiatives. Open data policies are widely recognized as a tool to foster government transparency and economic growth. Businesses have also developed innovative applications, products, and services based on OGD. Although OGD is a global movement, it faces a number of unsolved legal hurdles. Among others, it is critically important for participating governments to devise the most appropriate legal means of releasing data, and intellectual property (IP) licensing has been viewed as one of the main obstacles for governments in this regard. Consequently, entrepreneurs may hesitate to use or reuse government data if there is no reliable licensing or clear legal arrangement governing it.

This Article focuses on the legal issues associated with OGD licenses. Different government agencies have chosen different licensing terms to manage the release of their data. This study compares current open data licenses and argues that licensing terms reflect policy considerations, which are quite different from those contemplated in business transactions or shared in typical commons communities. This Article investigates the ambiguous legal status of data together with the new wave of OGD, which concerns some fundamental IP questions not covered by, or analyzed in depth in, the current literature. Moreover, this study suggests that governments should choose or adapt OGD licenses according to their own IP regimes. For example, whether a database right is protected as a sui generis right and whether moral rights are waivable in the subject jurisdiction both lead to licensing terms being designed differently. In the end, this Article argues that the design or choice of OGD license forms an important element of information policy; governments, therefore, should make this decision in accordance with their policy goals and in compliance with their own jurisdictions’ IP laws.

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