- A. Overview
- B. Legal relationship between public authority and data user
- C. Licence models
- D. Summary and conclusion
Literature: Paul Baumann/Philipp Krahn/Anne Lauber-Rönsberg, Legal Framework for Research Data Management, 2021; Peter Brettschneider/Alexandra Axtmann/Elisabeth Böker/Dirk von Suchodoletz, Open Licences for Research Data – Legal Assessment and Practical Suitability of Common Licence Models, o-bib 2021/3, p. 1, available at https://www.o-bib.de/bib/article/view/5749/8517; Federal Administrative Office, Open Data Handbook, Version 2.1, 17 October 2023, available at https://www.bva.bund.de/SharedDocs/Downloads/DE/Behoerden/Beratung/Methoden/open_data_handbuch.pdf?__blob=publicationFile&v=13; Federal Administrative Office, Data Requirements – Guidelines, Version 1.6, August 2020, available at https://www.bva.bund.de/SharedDocs/Downloads/DE/Behoerden/Beratung/Methoden/open_data_anforderungen_daten.pdf?__blob=publicationFile&v=3; Federal Administrative Office, Test Scheme for Evaluating Open Data, no date, available at https://www.bva.bund.de/SharedDocs/Downloads/DE/Behoerden/Beratung/Methoden/open_data_Pruefschema.pdf?__blob=publicationFile&v=2; Helene Groß, The Data Licence Germany, in: Mario Martini/Georg Thiel/Astrid Röttgen, Geodata and Open Government – Perspectives on Digital Governance, 2014, p. 97, available at https://dopus.uni-speyer.de/frontdoor/deliver/index/docId/616/file/FB-280.pdf; Sebastian Horlacher, Creative Commons Licences 4.0, 2020; Jens Klessmann/Philipp Denker/Ina Schieferdecker/Sönke E. Schulz, Open Government Data Germany, 2012, available at https://publica.fraunhofer.de/handle/publica/296000; Till Kreutzer, Open Content – A Practical Guide to the Use of Creative Commons Licences, 2nd edition 2016, available at https://irights.info/wp-content/uploads/2015/10/Open_Content_-_Ein_Praxisleitfaden_zur_Nutzung_von_Creative-Commons-Lizenzen.pdf; Anne Lauber-Rönsberg/Philipp Becker, Auswirkungen des Data Governance Act auf Forschungseinrichtungen und Repositorien (Impact of the Data Governance Act on Research Institutions and Repositories), RuZ 2023, 30, available at https://www.nomos-elibrary.de/10.5771/2699-1284-2023-1-30/auswirkungen-des-data-governance-act-auf-forschungseinrichtungen-und-repositorien-jahrgang-4-2023-heft-1?page=1; Open.NRW, Data licences for open government data – Legal aspects Brief expert opinion, 2019, available at https://open.nrw/system/files/media/document/file/opennrw_rechtl_gutachten_datenlizenzen_lowres_web.pdf; Heiko Richter, DNG, 2nd edition 2023; Heiko Richter, 2022: Arrival in the post-open data era, ZD 2022, 3; Gregor Schmid, Use of "open data" licences by the public sector – Expert opinion commissioned by Wikimedia Deutschland e.V., 2024, available at https://blog.wikimedia.de/2024/04/04/rechtsgutachten-zeigt-oeffentliche-hand-darf-und-sollte-cc-lizenzen-nutzen/; Louisa Specht-Riemenschneider/Moritz Hennemann, Data Governance Act, 2023; Andreas Wiebe, Open Data in Germany and Europe, 2020, available at: https://www.kas.de/documents/252038/7995358/Open +Data+in+Deutschland+und+Europa.pdf/443eda33-cf73-172e-cba4-e599f27c4a36?version=1.2&t=1580902187055.
A. Overview
1 Public authorities hold a wide range of data from numerous areas such as politics, economics, education and law, as well as geography, the environment and climate. Therefore, both at European and national level, the goal has been set that this data, which has often been collected or created with the help of public funds, should be made available for further use by public bodies and private individuals for the promotion of the common good. This applies not only to research data, which will be discussed separately in another article, but also to all other data collected, created or processed by the public sector. The term "data" is interpreted very broadly and does not refer only to data points. Rather, the term "data" as defined in Art. 2 No. 1 DGA
2 Accordingly, in recent years and decades, a regulatory framework has emerged that is intended to promote the reuse of data. However, this does not provide for a general obligation to publish data held by public authorities, which would not be possible without further ado in view of conflicting legal positions, for example from data protection and intellectual property law and the protection of trade secrets. The legal requirements include specific The legal requirements include specific provision obligations and access rights. In addition, the aim is to promote the provision of data through appropriate framework conditions. Examples of statutory access rights are the Freedom of Information Acts of the Federal Government and the countries,
3 These regulations are supplemented by the DNG, which implements the 2019 revised Open Data Directive
4 The DNG and DGA also set further framework conditions for the reuse of data: For example, regulations on fees charged by public authorities are specified (Art. 6 DGA and Sections 10-12 DNG) and the conclusion of exclusivity agreements is prohibited (Art. 4 DGA and § 6 DNG). In addition, § 4 (3) DNG stipulates that "terms of use (licences) (...) are permissible insofar as they are objective, proportionate, non-discriminatory and justified by an objective in the public interest objective in the public interest" and that public authorities should use open licences wherever possible (see also Recital 44 Open Data Directive). However, the DNG and the DGA do not provide any further guidance on how the legal relationship between the data-providing public authority and the data user should be structured in concrete terms.
B. Legal relationship between public authority and data user
5 This raises the question of which legal concepts can be considered for the structuring of the legal relationship and which requirements must be imposed with regard to the content to be regulated.
I. Determination of the terms of use
6 In German law, different legal concepts for structuring the legal relationship between public authorities and data users have emerged. One possible variant is that the terms of use are determined directly by statutory order or similar legal acts.
7 Insofar as the terms of use are not directly specified by a statutory instrument such as the GeoNutzV, the decision on the form of the specific legal relationship is incumbent upon the public authority.
8 In its guidelines for recommended standard licences from 2014, however, the European Commission recommends the use of Creative Commons licences 4.0, in particular the Public Domain Dedication CC0. In other countries, such as the USA, CC licences are also recommended as the most commonly used open content licence for the publication of administrative data .
9 However, it is also open to the development of a suitable national open licence of its own.
II. Requirements for licence models
10 The DNG contains the regulatory mandate that data must be created in accordance with the principle of "conceptually and by default open" (Section 1 (1) DNG) and that public bodies should use open licences wherever possible (Section 4 (3) sentence 2 DNG/Art. 8 (2) Open Data Directive). According to the draft, this refers to "open licences in the form of standardised public licences" that "are granted online, are based on open data formats and enable any person to freely access, use, modify and share data and content for any purpose".
11 The legal relationship between the data provider and the data recipient should be designed in such a way that the purpose of the unrestricted reuse of data is achieved. According to the Commission's guidelines, the licensor should, where possible, grant worldwide, perpetual, royalty-free and irrevocable, non-exclusive rights of use and, in order to avoid interoperability problems when combining with other licensing models, provide general wording instead of detailed lists of forms of use and rights.
12 Furthermore, the available licence models should offer legal certainty in the interests of data providers and recipients and be easy to understand. This is promoted by a high degree of dissemination and standardisation, as standardisation of the licence models used contributes to greater awareness of the contractual terms and conditions and thus reduces transaction costs.
13 Finally, it is necessary to differentiate whether the licence model is appropriate for the data that is the subject of the licence agreement. For example, there was some uncertainty under Creative Commons Licences 3.0, as these did not explicitly mention database producer rights, which has now changed in the current version 4.0.
14 Another important criterion for differentiation is whether the content is in the public domain or subject to copyright or ancillary copyright. Legal protection comes into consideration, for example, in the case of works such as texts, images, film or sound recordings that meet the requirements of Section 2 (2) of the British Copyright Act, or objects protected by ancillary copyrights under Sections 70 ff. of the British Copyright Act.
15 If, on the other hand, the content is not subject to copyright held by the public authority or other persons, then the granting of rights of use is not strictly necessary. This applies, for example, to mere data points that are not subject to copyright protection, as well as to official works pursuant to Section 5 UrhG and works whose copyright protection pursuant to Section 64 (1) UrhG has expired 70 years p.m.a. . In addition, Art. 5 (7) DGA now stipulates that public bodies may no longer rely on the database producer's right under Art. 7 (1) 1 Database Directive 96/9
16 In principle, it is also possible to conclude usage agreements with regard to public domain content, but these only have a contractual effect.
C. Licence models
17 In practice, Creative Commons licences and the German Data Licence have become particularly well established.
I. German Data Licence
1. Overview
18 The German Data Licence was developed as a model licence in cooperation between the federal government, the states and local authority associations following a recommendation in the study "Open Government Data Germany".
19 The very concise text of both variants allows the use of the provided data and metadata for commercial and non-commercial purposes, whereas the previous version only allowed reuse for non-commercial purposes. The variant "Data Licence Germany – Attribution" also obliges the user to include source reference, the name of the provider in accordance with their specifications, the reference to the licence model with a link to the URL of the licence text and a reference to the data set (URI). Any changes, edits, new designs or other modifications must be indicated in the source reference.
2. Advantages and disadvantages
20 At first glance, both versions of the Data Licence Germany are appealing due to their brevity and comprehensibility, which distinguishes them from the much more extensive and legally technical Creative Commons licences.
21 It therefore remains unclear whether the Data Licence Germany is a licence agreement under private law or terms of use under public law.
22 This contributes to the fact that the data licence Germany leads to serious ambiguities regarding the scope of the rights of use. For example, there is no territorial regulation as to whether use should only be permitted within Germany, as the name of the licence might suggest.
23 Furthermore, the duration of the granted rights of use and the question of (ir)revocability are not addressed. Unlike what is customary in the granting of copyright usage rights, aspects such as the (non-)exclusivity of the rights of use, their transferability and sublicensability are also not regulated.
24 Furthermore, there is no mention of the relationship between the rights of use granted and the moral rights of the authors of any works concerned.
25 There is also uncertainty regarding the subject matter of the Germany licence. This refers to the "provided data and metadata". Due to the wording chosen, it is not immediately clear that this also includes copyright-protected texts, drawings and video recordings.
26 Due to the concise wording, it is also unclear how further terms of use imposed by the data provider, which may arise, for example, from its website or the data set description, such as the prohibition on using the data in a discriminatory manner, relate to the Data Licence Germany, as this issue is also not regulated.
II. Creative Commons licences
1. Overview
27 A description of Creative Commons licences is not necessary in this commentary. Therefore, it should only be briefly noted that Creative Commons licences are characterised, among other things, by their worldwide distribution and by the fact that, in addition to the actual licence agreement, they also include a short summary (licence deed) and contract components to increase comprehensibility and that the contract terms are provided as machine-readable HTML code, which enables search engines, for example, to perform targeted searches for public domain content.
28 The fourth version of the Creative Commons licences has been available since 2013 and now also expressly includes the sui generis right under Art. 7 of the Database Directive
2. Advantages and disadvantages
29 Some of the criticisms expressed in older expert opinions and recommendations regarding the CCPL have been addressed in version 4.0, which has been available since 2013. For example, the database producer's right under Section 87a UrhG has been included in the licence and an official translation of the contract texts into German has been provided. Looking back, the question arises as to whether the other points of criticism were actually justified. For example, the effort to formulate terms of use even for content in the public domain is
30 However, from the perspective of German law, the CCPL still raises a number of questions with regard to the exclusion of liability and warranty, the attribution requirement and the effectiveness of CC0. There is general agreement that the comprehensive There seems to be agreement that the comprehensive exclusion of liability under Section 276(3) of the German Civil Code (BGB) is inadmissible and may also constitute a violation of Section 309 No. 7 and Section 307(2) No. 1 BGB.
31 In summary, it should be noted that the liability risks of the data provider are limited by Sections 521, 523 and 524 of the German Civil Code (BGB), which create an appropriate balance of interests between the data provider and the data recipient. Irrespective of this, however, the question arises as to whether public authorities can use the CCPL with its comprehensive warranty and liability exclusion, which, despite its legal invalidity, could deter data recipients who are not legally savvy from asserting their claims solely on the basis of its de facto authority. [55]
32 The validity of CC0 is also controversial. This can be particularly advantageous if attribution proves to be very time-consuming, e.g. when evaluating large amounts of data from different sources ("attribution stacking"). According to its basic concept, CC0 is not a licence agreement, but a waiver of copyright. However, this approach is not compatible with German copyright law, as copyright is not disposable due to its strong personal rights component. A waiver is therefore generally not possible.
33 Another disadvantage is that attribution under the CCPL-BY is rather counterintuitive, as according to Section 3.a.1.A, not only must the name of the author be indicated, but in addition to the copyright notice and reference to the present CCPL, a reference to the disclaimer and, where practicable, practicable, a URI or hyperlink to the licensed material must be included, insofar as it has been attached to the licensed material by the licensor, and according to Section 3.a.1.C, it must be stated that the licensed material is subject to the CCPL and its text or URI or a hyperlink to it must be added. However, here too, the public body as the data provider is responsible for ensuring that incorrect attribution, e.g. because a link to the licence text is missing, does not lead to a legal dispute.
D. Summary and conclusion
34 In summary, it can be said that the brevity of the German data licence proves to be a disadvantage. In particular, the legal nature of the data licence and the scope of the rights of use granted remain unclear.
35 Regardless of this specific design, it is questionable whether the development of national standard licences makes sense from a legal policy perspective. A fragmentation of the licence landscape leads to higher transaction costs for data users due to higher information costs. In addition, diverging licences harbour the risk of incompatibilities.
Creative Commons License
Open Access Kommentar, Commentary on E. Cultural Heritage is licensed under a Creative Commons Attribution 4.0 International License.
