Archetypes - Copyright and Licensing

Owned by Thomas Beale
Last updated: 11-Feb-2010 by (Sam Heard) inactive (Unlicensed)Version comment
5 min read

Introduction

There has been quite a lot of debate over the years on how openEHR/ISO 13606 archetypes should be copyrighted and licensed. This page attempts to elucidate the issues, and then provide some guidance on each one.

The key issues that have been discussed in the past include:

  • Original copyright: who should the copyright belong to? How does this relate to a license, e.g. like the Creative Commons CC-BY licences?
    • does it really matter who has the copyright?
  • Data rights: for data created using archetypes, how does the copyright and licence of an archetype relate to the data created using it? It would appear that 'use' of an archetype must be defined so as to include 'creating data', since this is one of the purposes for which archetypes are intended.
  • Meta-data: what about meta-data about archetypes that is not stored in the archetype, e.g. it may be in a specialist search engine or collaborative authoring site like CKM?
  • Freedom & sharing: Shouldn't archetypes be free and shareable, like open source software? What is the point of private archetypes?
    • how would a company create and use a private archetype? What if the data created with it had to be shared, e.g. into a national EHR repository?
  • Mirroring and caching: there needs to be a condition in the licence attached to an archetype that allows it to be mirrored to other servers and used in other locations, including being permanently cached at other sites, so the local systems there can have fast access.

New issues:

  • How should the archetypes collaboratively developed in openEHR's Clinical Knowledge Manager be copyrighted and licensed?
  • How should tools that create archetypes work?
  • What about copyrighted or otherwise 'controlled' artefacts that archetypes are based on, e.g. some assessment scales

From a clinical perspective there are certain things that appear important to preserve (Sam Heard):

  • There are as few places as is necessary to go to get the archetypes that you require
  • At that place you should be able to search and see what is going on elsewhere in your clinical domain
  • The use and specialisation (creating derivative works) should be unencombered (ie I do not need to seek permission to specialise an archetype or create a template)
  • Noone can express ownership of a derived work (such as a template) in a way that stops someone making exactly the same template for use elsewhere

Current Proposed Guidelines - 1 Oct 2009

The following are the guidelines initially proposed by the openEHR Board for determining copyright and license.

  1. Archetypes managed at http://www.openEHR.org/knowledge _are published under the Creative Commons license - specifically the CC-BY-SA license (_Attribute and ShareAlike). This is the same license that Wikipedia is using.
  2. The copyright of all archetypes managed at http://www.openEHR.org/knowledge should be assigned to the Foundation. This is needed to ensure that the Foundation can give permission to others to adapt the work (see the CC license for details).

Please provide comments on this either via this page or via the openehr technical or clinical mailing lists. Subject to any necessary rethinking as a Board, arising from responses we receive before December 1st 2009, we plan that it will become official openEHR Foundation policy from January 1st2010, when a set of rules covering its implementation will also be published. We will also consider whether and in what form we might usefully propose guidelines for how copyright in archetypes might best be managed in other contexts, such as a) when managed by governments on national or regional servers, b) when managed privately by healthcare organisations, professional bodies or companies, and c) when managed experimentally, eg in research programmes.

Background

Copyright: what does it mean?

Points to consider:

  • The original idea was to legally identify the originator and moral owner of a work. Copyright law was initially conceived for 'readonly' artefacts, e.g. paintings, novels, drugs - things that once published with copyright, would not change.
  • 'copyright' therefore is a less clear concept for software and other things that change all the time, and are often modified by many authors over time. The moral right of the original creator and any/all other contributors then becomes more like an attribution in the academic sense,  but is it legally worth anything?
  • The use of 'licenses', particularly as developed and espoused by the open source software movement now seem to make more sense with 'changing' artefacts, since they focus on 'use' rather than original creation, which they treat as an 'attribution' concept.
  • On the legal level, it appears that copyright is really a way of invoking the common law of a jurisdiction, and relying on that for protection, whereas a license explicitly defines the rights of the user of an artefact, and acts more like a contract. This means that the rights conferred by 'copyright' will vary in different countries, whereas the rights exprssed by an open license of some kind are more likely to be interpreted more or less the same way in multiple countries (obviously the legal language of any such license is still subject to 'interpretation' in different jurisdictions).

    This is not really true - copyright is a statutory construct, not a common law construct (if you mean common
    law in the sense it is used in the law, not as "a law that is common between countries"). The copyright statutes of most countries appear similar because they are based on some common international treaties/conventions. Creative commons aims to define various abstract 'license types', which then needs to be put into the legal language of each jurisdiction (so the Australian one talks about the Australian Copyright Act etc). It is possible to come up with an abstract 'license type' that is implementable in most countries because of the similarity between copyright is most jurisdictions - the license/contract thing is not really to do with it.

    What I mean here is that the rights you have with respect to a work have to be interpreted via the copyright law (statute) of a country, whereas with a license, it acts like a contract. There may be fine-grained interpretation needed, but in general the license states the rules of use - no statute law needed. - TB

Copright and License Requirements for Archetypes

Sam Heard: The prime requirement for archetypes is that they are freely available and managed. The openEHR Foundation is the only organisation to this point that offers the chance to ensure both. Other players may well come forward to take on this role in future and we can transfer the copyright if that is deemed to be the best way forward. However, for the moment if the openEHR community deem it necessary to alter an archetype it group should not be encumbered with negotiations with an external group. It is for this reason that we keep the copyright to the openEHR Foundation. Creative Commons licences may indeed be appropriate but I would suggest that this does add to the complexity.

Previous Discussions

Resources

In terms of licenses, the two main candidates in the world appear to be the Creative Commons (CC) licences and the Gnu Free Documentation License (GFDL). As of version 3.0 the CC licenses, it appears that the CC licenses and the GFDL ones are almost the same for all practical intents and purposes (i.e. an army of language lawyers would be needed to find the differences). This appears to have been partly to enable Wikipedia to move from GFDL to CC-BY 3.0.