Can a government's open data license include a provision to not allow use that damages the "honor or reputation" of their agency as a moral right?

Question

Moral rights are protected under CC BY 4.0 license and some countries are unable to revoke these rights in a license even if they want to.

However, the provision to not allow reuse in a way that dishonors the original data producer, misleads, etc. seems awfully vague. So vague, that a government could use such a clause to terminate somebody's right to use data simply because they do not agree with the way it was used.

Is this a protected moral right that can be included in a government's open data license and still fully meet the open definition?

Answer 1

No

Only individuals have moral rights so a government or a company cannot claim to have them.

They can, of course, require the licence to respect individuals moral rights and, like any contract, could have a general non-disparagement clause.

Derogatory treatment is defined in the relevant law, for example, s 195AJ of the Copyright Act 1968 (Cth):

"derogatory treatment" , in relation to a literary, dramatic or musical work, means:

     (a)  the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author's honour or reputation; or

     (b)  the doing of anything else in relation to the work that is prejudicial to the author's honour or reputation.

And the courts know how to interpret this (see Fernandez v Perez [2012] NSWSC 1242).

In any event, you only have a right to use the copyrighted work in accordance with the licence. There is no question of terminating your right, your right continues even when they are suing you for your breach of the licence.

That said, if the license is silent about moral rights you still have to respect them. If you don’t the individual can sue you.

Answer 2

I don't know that much about the licensing scheme, but in the United States, this would not fly. There have been cases where similar arrangements have been struck down, such as states limiting their film incentives to producers who promise to portray the state in a favorable light.