Open source licensing of Victorian Government information

The Victorian Parliament is having an inquiry to see if open access/open source licensing should be used to make Victorian Government information more readily available. There is a discussion paper and submissions have been invited by 22 August 2008.

The discussion paper is a well written and carefully researched document. Its dissemination as a reasonably efficient and accessible elelctronic document increases the credibility of the work (despite one lapse where the elelctronic version is described a being "... printed on recycled paper").

However, I was invited to give evidence to a previous Victorian parliamentary inquiry into e-voting for the disabled. The committee recommended e-voting, but the Victorian Government implemented it in such a poor way it was used by few people and was a waste of public money. It is to be hoped that the resources the Victorian Parliament is putting into the question of open access is not similarly squandered by the executive arm of government.

Some excepts from the discussion paper:

Terms of Reference

The Legislative Assembly under section 33 of the Parliamentary
Committees Act 2003 refers Terms of Reference requiring:

That the Economic Development and Infrastructure Committee inquire into, consider and report to Parliament on the potential application of open
content1 and open source licensing to Victorian Government information,
and in particular, the Committee is asked to:

a) report on the potential economic benefits and costs to Victoria of
maximising access to and use of Government information for commercial and/or non-commercial purposes, including consideration of:

i. public policy developments elsewhere in Australia and internationally; and
ii. the types of information that will provide the greatest potential
benefit;

b) consider whether the use of open source and open content
licensing models, including Creative Commons, would enhance the
discovery, access and use of Government information;
c) report on the use of information and communication technology to
support discovery, access and use of Government information; and
d) identify likely risks, impediments and restrictions to open content
and open source licensing of Government information, including
impacts on and implications for any existing cost recovery
arrangements.

The Committee is required to report to Parliament by 30 June 2009.

1 The Terms of Reference received by the Committee from the Legislative Assembly of the Parliament of Victoria referred only to ‘open source licensing’. The Committee has determined that the intent of the Reference may be clarified by additional reference to ‘open content licensing’. For comparison, the original Terms of Reference, as received from the
Legislative Assembly, can be found in Appendix One.

Table of Contents

The Economic Development and Infrastructure Committee... v
Terms of Reference... vii
Guide to making a submission... ix
Table of Contents... xi
Questions for discussion ... xiii
Abbreviations ... xv

Chapter One: Access to Public Sector Information... 1
1.1 Structure of this paper ... 1
1.2 Emerging interest in access to public sector information ... 1
1.2.1 Potential for economic development... 2
1.2.2 Potential for social engagement... 2
1.2.3 Recent policy and legislative developments ... 3
1.2.4 What approach should government adopt toward access to and re-use of PSI? ... 4
1.3 Purpose of this discussion paper... 5
1.4 Questions ... 6

Chapter Two: Economic and social issues surrounding access to public sector information ... 7
2.1 Returns on investment... 7
2.1.1 Improved returns to government from release of PSI ... 7
2.1.2 Potential costs to government from release of PSI... 9
2.2 Innovation and creativity... 10
2.3 Social aspects of access to PSI ... 11
2.3.1 Anticipated social benefits of access to PSI ... 11
2.3.2 A need for caution?... 16
2.4 Questions: ... 18

Chapter Three: Defining the public sector ... 19
3.1 Definitions from Commonwealth and Victorian legislation... 19
3.1.1 Copyright Act 1968 (Cth) ... 19
3.1.2 Public Administration Act 2004 (Vic)... 21
3.1.3 Charter of Human Rights and Responsibilities Act 2006 (Vic)... 21
3.1.4 Freedom of Information Act 1982 (Vic) ... 22
3.1.5 Local councils ... 23
3.1.6 International experience... 24
3.2 Documents and information subject to improved PSI access ... 24
3.2.1 Precedents in Victoria... 24
3.2.2 Precedents from the UK... 26
3.2.3 OECD definition of applicable documents ... 27
3.3 Questions: ... 27

Chapter Four: Issues surrounding pricing for PSI access ... 29
4.1 International experience ... 30
4.2 PSI access in Australia... 32
4.3 Access at no or marginal cost versus commercialisation ... 33
4.4 Questions: ... 34

Chapter Five: Open content licensing ... 35
5.1 Creative Commons... 36
5.1.1 The application of Creative Commons to PSI ... 38
5.1.2 Opportunities for the application of Creative Commons to PSI... 39
5.1.3 Concerns about the application of Creative Commons to PSI... 40
5.1.4 Implementation of open content licensing models... 41
5.2 The alternative to licensing PSI ... 43
5.3 Questions: ... 44

Chapter Six: Open source licensing ... 45
6.1 Government use of OSS ... 46
6.2 Open source software versus proprietary software ... 47
6.3 Questions: ... 49
References... 51
Appendix One: Extract from LA Votes and Proceedings... 57

Questions for discussion

Question 1: What are the advantages and disadvantages of government adopting ‘push’ and ‘pull’ models toward the publication of public sector information (PSI), respectively? ... 6
Question 2: How can improved access to and re-use of PSI drive economic growth, employment opportunities and new commercial ventures? ... 18
Question 3: What can the Victorian Government do to improve access to PSI in a manner that creates new opportunities for information and knowledge flow, and thereby encourage further innovation? ... 18
Question 4: If the Victorian public sector is to provide increased access to information, what kind of information would provide the greatest opportunities to improve or develop:
a) investment and business opportunities?
b) social, medical and scientific research?
c) community and civic engagement?... 18
Question 5: How can social engagement, in particular through the development of spontaneous social networks, be enhanced through the provision of enhanced access to PSI?... 18
Question 6: In what circumstances can open access to PSI empower individual citizens and communities to participate in social and political activities? ... 18
Question 7: What institutions and agencies should be considered part of the public sector for the purposes of this Inquiry? What advantages will be obtained by encompassing some or all of the following agencies and institutions under this definition:
a) executive government: principally government departments, but also incorporating statutory authorities?
b) the legislature: including parliament?
c) the judiciary?
d) local councils?
e) other public institutions, such as universities, TAFEs, public hospitals, etc? 27
Question 8: What kinds of documents, data and/or other materials should be considered for public access? What criteria should be applied when judging whether specific documents, data and materials should be made available to the public?... 28
Question 9: What types of access and pricing policies have been adopted by Victorian Government agencies for the provision of PSI? Is there consistency across individual departments? What have been the costs and benefits associated with these pricing policies in terms of:
a) investment and business opportunities?
b) social, medical and scientific research?
c) community and civic engagement?... 34
Question 10: How should governments ensure transparency and fairness in their pricing policies? ... 34
Question 11: What criteria should government apply when determining whether to provide access to PSI? Under what circumstances would the following pricing options be appropriate:
a) no cost?
b) marginal cost or cash recovery?
c) commercial profit and return? ... 34
Question 12: What other open content licensing models may be of interest to the Committee?... 44
Question 13: Is the absence of conditions regarding geographical restrictions or no endorsement in Creative Commons likely to be an issue for Victorian PSI? ... 44
Question 14: What are the merits of the Victorian Government developing its own whole-of-government licensing framework as an alternative to adopting the Creative Commons licensing system?... 44
Question 15: Is it appropriate for the Victorian Government’s licensing framework to comprise both the Creative Commons licences and other more tailored licences? ... 44
Question 16: What are the benefits of establishing a central agency whose core responsibility would be managing the Victorian Government’s licensing model? ... 44
Question 17: What are the range of licence conditions that the Victorian Government is likely to require when issuing open content licenses?... 44
Question 18: To what extent have other Australian governments adopted the use of OSS in their ICT business solutions? ... 49
Question 19: What risks and benefits do OSS products offer over proprietary software for use in government operations? Are there opportunities for broader adoption of OSS by the Victorian Government? ... 49
Question 20: What is the capacity for both software models to coexist in the same organisation? ... 49
Question 21: What is the role of the Victorian government in procuring and distributing OSS in ICT business solutions? ... 49

Chapter One: Access to Public Sector Information

The Economic Development and Infrastructure Committee (EDIC) is a Joint Investigatory Committee of the Parliament of Victoria. The functions of the Committee are to report to the Parliament on any proposal, matter or thing concerned with economic development, industrial affairs or infrastructure.

On 27 February 2008, the EDIC was asked to inquire into, consider and report to Parliament on the potential application of open source licensing to Victorian Government information (the Terms of Reference for the Inquiry are printed on page vii of this paper).

1.1 Structure of this paper

This paper begins with a brief overview of some of the issues that have led to an increased interest in governments providing enhanced access to information and data held by the public sector.

The paper then discusses five key areas of interest arising from the Terms of Reference for the Inquiry. These are:

• the economic and social issues surrounding access to public sector information (PSI), including access by means of open content
licensing;
• how the public sector should be defined, and the types of PSI that should be made available;
• issues surrounding pricing for PSI access;
• issues surrounding open content licensing; and
• issues surrounding open source licensing.

1.2 Emerging interest in access to public sector information

Over the past decade, the development of the internet and related technologies has substantially reduced costs associated with the dissemination of most information. As bandwidth has expanded, and with the development of sophisticated internet searching and indexing techniques, it is now possible to place extensive repositories of primary and secondary data and research online, and to have that data identified and accessed by a diverse range of people and organisations.

Along with this development, there has been increasing interest in the potential for information generated by (or obtained in association with) government activities to be made more widely available. Internationally and in Australia a number of studies and commentaries have been initiated within government and academia to examine issues surrounding more open approaches to the provision of government information.2 A number of commentators now argue that there is significant potential for social and economic benefits to flow from increasing the range of PSI made available to the public at low, or no, cost.3

As discussed in Chapter Five, one of the ways to improve access to and re-use of PSI in the public domain is through the application of ‘open content’ licences to government material. In the literature, the open content licensing model has emerged as a practical alternative to the existing licensing systems adopted by governments as it allows others to obtain access to and re-use copyright material with minimal transactions. This is because the licences are automated and grant permission for others to reuse protected material upon discovery of that material. A number of open content licensing models exist in Australia and internationally, with Creative Commons being the most commonly recognised model.

1.2.1 Potential for economic development

To date, improved access to PSI has most often been considered in the context of opportunities for economic development. This follows observations of the emergence of successful commercial enterprises that create innovative products from repackaged, processed or amalgamated PSI. The basic argument for supporting improved access to PSI on grounds of economic development is that the revenue and economic activity generated through the use of PSI substantially outweighs costs incurred by government in the course of generating and disseminating that information. However, there is still considerable debate about the categories of PSI that are best suited to this purpose, and the circumstances and conditions under which PSI should be released.

1.2.2 Potential for social engagement

While most interest in PSI has surrounded the potential for commercial and/or economic development, a number of commentators have also suggested there is potential for other, less tangible, social benefits to derive from improved access to PSI. For example, improved access to PSI may provide citizens with a heightened sense of social identity and participation.

Some commentators also consider open access to PSI to be an essential prerequisite for functioning modern democracies.4 One key argument in favour of open access to PSI is that as the information is publicly funded, it is consequently held on behalf of the people, and should also be accessible by them. This idea draws upon an emerging international movement that argues citizens should be given access to data they fund
without having to pay for it again.5

It has also been suggested that improved access to PSI will provide a broader range of people and organisations with an opportunity to examine data and information about key areas of government responsibility, and potentially develop innovative recommendations and strategies for improvements to government policy. Similarly, improved access to PSI, such as through open content licensing, may also stimulate new commercial and private enterprise. In this way, society may take advantage of its collective intelligence to develop solutions to common issues and problems, and to generate more wealth throughout society.

A related justification for improved access to PSI is that it will provide a mechanism for improving government accountability and transparency.

The argument for this approach is that by providing the public with the evidence upon which government decisions are made, improved access to PSI will provide the public with an opportunity to critically assess government policies and decisions.

The Committee notes that in 2005 the Victorian Parliament Scrutiny of Acts and Regulations Committee (SARC) tabled its final report on the Inquiry into Victorian Electronic Democracy. This report considered some issues surrounding the use of government information by citizens and businesses, focusing on the use of electronic technologies to improve parliamentary democracy.6 In part, the current inquiry expands on the work done by
SARC by focusing more particularly on costs and benefits associated with different approaches to the provision of PSI.

1.2.3 Recent policy and legislative developments

Internationally, a range of actions have been undertaken to improve access to PSI. On 18 June 2008, for example, the Organisation and Cooperation Economic Development’s (OECD) Ministerial Meeting on the future of the internet economy endorsed the Seoul Declaration for the

Future of the Internet Economy, which included a recommendation for the development of policies that:

Make public sector information and content, including scientific data, and works of cultural heritage more widely accessible in digital format.7

The background document to the declaration pointed to further recommendations for OECD member countries to consider in the context of improved access to PSI, including:

• Maximising the availability of public sector information for use and re-use based upon the presumption of openness as the default rule.
• Encouraging broad non-discriminatory competitive access and conditions for re-use of public sector information by eliminating exclusive arrangements, and removing unnecessary restrictions on the ways in which it can be accessed, used, re-used, combined or shared.
• Improving access to information and content in electronic form and over the Internet.
• Finding new ways to digitise existing public sector information and content, to develop “born-digital” public sector information products and data, and to implement cultural digitisation projects where market mechanisms do not foster effective digitisation.
• Exercising copyright in ways that facilitate re-use, and where copyright holders are in agreement, developing simple mechanisms to encourage wider access and use, and encouraging institutions and government agencies that fund works from outside sources to find ways to make these works widely accessible to the public. 8

In the United States, President Bush endorsed a bill in December 2007 that requires all research funded by the National Institutes of Health to be made available to the public.9 In 2003, the European Commission introduced the European Union (EU) Directive on the re-use of PSI, which established a minimum set of rules governing the re-use of PSI held and developed by public sector bodies within EU Member States.10 All Member States were required to have implemented the Directive by 1 July 2005.

In January 2008, the European Research Council (ERC) also mandated public access to its research projects, requiring that ERC-funded research publications be deposited into a research repository within six months of publication.11 Australia is taking similar steps through the Commonwealth Government’s Accessibility Framework. The overall intent of the Framework is that “outputs of publicly funded research, including research data and research publications, should be managed in ways that maximise public benefit through exposure and use.”12

1.2.4 What approach should government adopt toward access to and re-use of PSI?

The key consideration with regard to PSI is the extent to which the various ways access can be limited (for example, through price, licensing arrangements, or whether information is available on the internet or not) are justified. While a substantial case can be made that limitations on access to information relevant to the exercise of people’s basic human rights should not exist (for example, information about why one’s travel visa was declined), the proposition that people have a right to all information – including information that does not pertain to the exercise of basic human rights – is subject to debate.

One way of conceptualising different government approaches to the dissemination of information is by distinguishing between ‘pull’ and ‘push’ models. This concept was proposed in the independent review of the Queensland Government’s Freedom of Information legislation, which proposed 141 recommendations to achieve a more effective and transparent FoI legislative model.13

The pull model most closely resembles current practice, with an emphasis on the dissemination of information in response to individual requests for access – generally through such mechanisms as FoI requests. This model depends, at least in part, on the person requesting the information knowing that it exists in the first place. Information that is proactively released to the public domain by government under this model generally serves a specific policy objective – such as introducing or making a case for a particular program or government action.

The push model, on the other hand, emphasises proactive publication of information by government. Under this model, government identifies and publishes a wide range of data without first waiting for the information to be requested. This approach may mean that the public becomes aware of information because government has made it available. Commentators in favour of this approach suggest that agencies should anticipate information requests, and use the internet to make broad categories of information available online.

Both of these approaches to the dissemination of PSI have advantages and disadvantages, and in practice a mixture of both are generally exercised by government. For example, if a wider range of data were actively published under the push model, more work may be required of the public service to bring relevant data and information up to a publishable standard. In contrast, however, enhancing the level of government information and data that is available in the public domain could reduce the number of FoI requests government has to process. As a consequence, the amount of government resources allocated to responding to such requests could be reduced considerably.

1.3 Purpose of this discussion paper

The purpose of this paper is to identify and discuss issues relevant to the potential application of open content and open source licensing to Victorian Government information. This discussion paper has been prepared to provide information to assist interested people and organisations to make public submissions to the Inquiry. The aim of this paper is to prompt discussion by highlighting key issues and raising questions, rather than by providing answers or solutions. It has also been prepared to encourage a wide range of people to participate in this Inquiry, and for this reason readers’ familiarity with issues surrounding access to PSI has not been
assumed. ...

2 Productivity Commission, Public support for science and innovation, Commonwealth Government, Canberra, 2007.
3 Productivity Commission, Public support for science and innovation, Commonwealth Government, Canberra, 2007.
4 Copyright Law Review Committee, Crown copyright, Commonwealth of Australia, Canberra, 2005, p. 39.
5 Dylan Bushell-Embling, 'Private eyes on public data', Sydney-Morning Herald, 25 September 2007; Catherine Bond, 'Reconciling Crown copyright and reuse of government information: an analysis of the CLRC Crown copyright review', Media & Arts Law Review, vol. 12, no. 3, 2007.
6 Scrutiny of Acts and Regulations Committee, Inquiry into electronic democracy, Parliament of Victoria, Melbourne, 2005.
7 OECD, 'The Seoul declaration for the future of the internet economy', viewed 25 June 2008, .
8 OECD, 'Shaping policies for the future of the internet economy', viewed 25 June 2008, .
9 Mark Patterson, 'Public access to research funded by National Institutes of Health - now law', viewed 20 March 2008, .
10 European Commission, 'Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information', Official Journal of the European Union, 2003.
11 Mark Patterson, 'Open access mandates from the National Institutes of Health and the European Research Council', viewed 20 March 2008, .
12 Leanne Harvey, 'Open access collections - The future of the accessibility framework and research assessment', viewed 20 March 2008 .
13 FOI Independent Review Panel, The right to information, The State of Queensland, Brisbane, 2008.

From: Discussion Paper of the Economic Development and Infrastructure Committee on the Inquiry into Improving Access to Victorian Public Sector Information and Data, Economic Development and Infrastructure Committee, Parliament of Victoria, 2008