Defining "technological measures"

Andres Guadamuz of Technollama has suggested in the comments that “technological measures” in Section 4.6 of the Open Data Commons Database Licence be defined. For reference, Section 4.6 is:

4.6 Technological measures and additional terms

a. This Licence does not allow You to (except subject to Section 4.6 b.) impose any terms or any technological measures on the Database, a Derivative Database, or the whole or a Substantial part of the Data that alter or restrict the terms of this Licence, or any rights granted under it, or have the effect or intent of restricting the ability of any person to exercise those rights.

b. Parallel distribution. You may impose terms or technological measures on the Database, a Derivative Database, or the whole or a Substantial part of the Data (a “restricted Database”) in contravention of Section 4.6 a. only if You also make a copy of the Database available to the recipient of the restricted Database:

i. That is available without additional fee;

ii. That is available in a medium that does not alter or restrict the terms of this Licence, or any rights granted under it, or have the effect or intent of restricting the ability of any person to exercise those rights (an “unrestricted Database”); and

iii. The unrestricted Database is at least as accessible to the recipient as a practical matter as the restricted Database.

This part of the licence prevents use of any technical means of restricting use of the database, with an exception in 4.6 b. for those who distribute an unrestricted copy at the same time. We’ve had some earlier discussion about whether there should be a further requirements on how databases should be made available here.

I should also note that this clause is meant to catch only technological measures that restrict the work. So Digital Rights Management (DRM) or Rights Management Information (RMI) are not per se eliminated, only those technologies that actually restrict the use of the work. This approach is consistent with other open / free / libre licensing approaches, including Creative Commons. An example of non-restrictive DRM or RMI would be rights metadata (data describing the licence associated with the database). Rights metadata would not be a restriction because it merely describes the rights associated with the work.

Andres has suggested the use of the definition in Art. 6 (3) of the European Copyright Directive 2001/29/EC (EUCD):

“technological measures” means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.

[Note that " the sui generis right provided for in Chapter III of Directive 96/9/EC" is the Database right.]

He doesn’t suggest also importing the rest of the standard in the EUCD that the technological measures be “effective”. For reference the rest of Article 6 (3) is:

Technological measures shall be deemed “effective” where the use of a protected work or other subject-matter is controlled by the rightholders through application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copy control mechanism, which achieves the protection objective.

I should also note that the unported CC-BY 3.0 licence, which is based off of international agreements and not off of national copyright law, says the following in 4 a. about technological measures:

When You Distribute or Publicly Perform the Work, You may not impose any effective technological measures on the Work that restrict the ability of a recipient of the Work from You to exercise the rights granted to that recipient under the terms of the License. [Link]

“Effective technological measures” is not defined in the licence.

I am of the opinion that further defining the term “technological measures” might be a good idea, but I’m not sure if it is needed. I think even with the term undefined it will still cover all it needs to. The enforcement model for an open licence is a bit different than trying to draft laws with penalties (such as in the EUCD) in an effort at legally protecting technological measures, and so I think it is less important to try to tightly define the term here.

In addition, as drafted the ODCDBL already covers any technical or contractual means of preventing users of the database from exercising their rights under the licence. Section 4.6 in a lot of ways actually tracks the definition used in the Directive, as the only other substantive attempt at defining “technological” in the Directive is to add “any technology, device or component.” The rest of the definition goes on to specify what rights the technological measure must be aimed at preventing or restricting. In the EUCD it is database rights and copyright and neighbouring rights. In the Database Licence it is the rights of users under the licence.

I would be very interested to hear any additional thoughts that anyone might have on the issue. Please feel free to submit a comment, join the discuss list, or contact me directly.