ex Africa semper aliquid novi

Adi Eyal, data  experiences opening public data in South Africa asks government should claim copyright over  knowledge funded by taxpayers.

Describing his experiences dealing with the Municipal Demarcation Board, the National Statistics Agency and the Electoral Commission,  provincial and municipal administrations he reports that many of these government offices claim that the databases they administer are subject to copyright and even deny permission to re-use the data.

I have bad news for Adi, the practises that he is tracking are layered onto an even more complicated and contradictory  legal situation.  To appreciate the complex legal rules bearing on open data in South Africa one needs to consider the interaction of four five distinct sets of legal rules.

The Bill of Rights grants everyone rights to information, especially information held by the State. The Promotion of Access to Information Act creates mechanisms for the enforcement of the right information held by the State. The Copyright Act dates to 1978, long before the Constitution or the rise of Big Data. Which aspects of of data are subject to copyright? In what circumstances does copyright over data vest in the State? Is the 1979 delegation of control of state copyright to the Government Printer permissible under the 1996 Constitution especially the provisions governing the powers of provinces and municipalities? How does the legal duty of co-operative government, including information sharing, affect the duty of government offices to share data? Are databases subject to the State Information Technology Agency Act 1998? Should the Ministerial Interoperability Standards specify data formats?

The interaction of these different legal and policy instruments that creates uncertaintly for government offices is not the result of design but of a contingent process in which the interacting factors developed in different contexts but now must be understood together. South Africa could benefit from open government data, and is in some exceptional cases already benefiting. But if the successul experiments are to scale the legal complications need to be addressed.