1. Legal Aspects of Open Data 2016
Extracting Strategic Advantage from Public Data Sources
Griffith University
Wednesday 9 March 2016
5.30pm – 7.00pm
PRESENTED BY
KIM WALTERS, Director, W3IP Law Pty Ltd
Disclaimer. No part of this presentation can be regarded as legal advice and although all care has been taken, the author does not undertake any duty of care relating to any part of this paper and it cannot give rise to a solicitor-client relationship, nor any liability on the part of author or W3IP Law Pty Ltd for any actions or inactions taken in reliance on this presentation.
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

2. Legal Aspects of Open Data Profile
Kim Walters | IP and Digital Lawyer | W3IP Law Pty Ltd 
Kim is an intellectual property specialist with more than 20 years of experience in law. She is the founder of W3IP Law, a specialist intellectual property and digital law firm which focuses on the Internet and information technology sectors.
Kim has advised clients throughout Australia and overseas on a wide range of commercial and intellectual property matters. Her experience as Corporate Counsel within Australia and also globally brings a commercial and strategic perspective to her legal advice.
She has extensive experience in trade mark branding strategies, copyright matters, patents, technology licensing, commercialisation, intellectual property disputes and litigation, software agreements, privacy and data protection. In practice, Kim has also advised various Government departments in the area of intellectual property.
In addition to being a lawyer, Kim is a registered trade marks attorney and is undertaking her Masters of Intellectual Property at the University of Technology, Sydney. Kim is deputy chair of the Queensland Law Society’s specialist Technology and Intellectual Property Committee (TIPS) and a committee member of the IT Forum Gold Coast.
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

3. Open means Open
“A piece of data is open if anyone is free to use, reuse and distribute it – subject only, at most, to a requirement to attribute or share-alike”
Open data is data that anyone can access, use and share
Anyone means anyone
Preferably by downloading over the Internet
No restrictions on commercial use
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

4. 03 Open Government Open Source Open Data
A new social standard that fosters transparency and collaborative engagement 03
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

5. Open Data vs The Law Legal Constraints
Intellectual Property Rights
“My words and my ideas are my property, and I’ll keep and protect them as surely as I do my stable of unicorns.” Jarod Kintz (1982 – American Author)
Data Protection (Australian Privacy Principles (APPS) – Privacy Act 1988
"The right to be let alone is indeed the beginning of all freedom.” (William O. Douglas 1952)
Breach of Confidence
“In almost every profession – whether it’s law or journalism, finance or medicine or academia or running a small business – people rely on confidential communications to do their jobs.  We count on the space of trust that confidentiality provides.  When someone breaches that trust, we are all worse off for it.” (Hillary Clinton)
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

6. What are IP Rights
IP rights arise from the laws that countries have to protect intellectual property.
Legal rights that protect ideas and inventions.
They allow creators or owners of intellectual property to benefit from their own creation or work.
Right to exclusively use intellectual property.
Protection from infringement.
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

7. Navigating IPR Protection
Balancing Interests of Individuals and Society
Protecting the creator to stimulate creativity (human innovation and skill)
Welfare of society and mankind (to benefit from the IP)
Pharmaceutical company gets patent for plant (‘fence around nature’) vs benefit for whole of humanity (common fund of society)
Example: The Rosy Periwinkle case and Madagascar
Open Data versus Intellectual Property
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

8. Enriched Databases and Data Sets protected by copyright
The creation produced by a person’s skills and labour protected
Gives the creator of an original work exclusive rights to it
Copyright exceptions e.g. fair dealing (limited applicability)
Wikipedia Commons – Author: Christopher Dombres –
The most famous episode of the terrible intellectual property war during the 21st century. This illustration is an allegory of the battle between corporate monopolies and public domain for the extension of intellectual property. The legend of Achilles' invulnerability served as inspiration, not the actual Trojan War. This design is copyright free.
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

9. Works Protected Copyright
Literary works
Artistic works
Dramatic works
Design
Audio-visual
Sound recordings
Performers rights
Moral Rights
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

10. Only applies to individuals
Moral Rights
Only applies to individuals
Be attributed as the author (‘Right of Attribution’)
Right to prevent others from falsely claiming they are the author (‘Right not to be falsely attributed’)
Right to prevent the work from being subject to derogatory treatment (‘Right not to be falsely attributed’)
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

11. Achieving Open Data Access to Data and Resources - Open Data Licences
Requirements of Open Works
Bespoke or Standard
Creative common sets of licences
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved

12. The Process Choose data sets Preparing, releasing and updating
Get the right to publish online
Publish in open format to make it easier to reuse
e.g. Federal: * data.gov.au * National Map * FIND
Identify who is responsible
Apply an Open Licence
Make accessible
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved

13. Required Permissions
Open data must have a licence that says it is open data i.e. that it can be reused.
Data should be provided under terms that permit:
- access (universal participation)
- re-use, modification and redistribution (‘intermixing’)
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

14. Acceptable Conditions
Attribution (Giving Credit)
Integrity (Versions - Different name or version number)
Share-alike (Distribution remains under same licence)
i.e. people who mix data must release their results
Notice (Copyright notices, identification of licence)
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

15. Creative Commons (CC Licences) (APS Default)
Default licence for Australian Government - publishing data and information :
Creative Commons Attribution 3.0 (CC BY 3.0 AU)
You are free to: Share – copy and redistribute the material in any medium or format Adapt – remix, transform and build upon the material for any purpose, even commercially.
Under the following terms: Attribution – You must give appropriate credit, provide a link to the licence and indicate if any changes were made.
Notices: You do not have to comply with the licence (public domain or where use is permitted by an applicable exception or limitation. No warranties are given. Licence may not give you all of the permissions necessary for your intended use. e.g. publicity, privacy or moral rights.
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

16. What Data - Examples When to Use When not to Use Scientific Research
When to Use
When not to Use
Scientific Research
Medical or personal information
Cultural Work
Copyright information without appropriate clearances
Statistics
Materials covered by trade marks
Weather
Materials restricted to certain users or classes of users
Transport
Third party content / orphan works
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved

17. The Age of Information – Big New World
Why Open Data
The Age of Information – Big New World
Progress: A functional relationship between the government and the people (participation with citizens)
“Interoperability” (Tower of Babel) – improve how government works and deliver services
Openness stimulates creativity and innovation: building a more prosperous, equitable and just society
Releasing social and commercial value
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.

18. Risks Publication of data against the law Privacy Infringement
Publication of inaccurate data
Misuse of data e.g. risk to the security of infrastructure
Misinterpretation of the data
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved

19. Steps Mitigate risk Proper specification of datasets
Compliance assessment
Anonymization of data
Quality Control
Continuous monitoring
Kim Walters, Intellectual Property and Technology Lawyer, W3IP Law Pty Ltd © All rights reserved.