[OSM-legal-talk] [talk] New site about the license change

[Mike Linksvayer]

On Tue, Nov 16, 2010 at 7:26 PM, Anthony <osm at inbox.org> wrote:

> On Tue, Nov 16, 2010 at 7:07 PM, Frederik Ramm <frederik at remote.org>
> wrote:
> > Hi,
> >
> > Anthony wrote:
> >>>
> >>> If Creative Commons had been more friendly towards the data licensing
> >>> issue,
> >>> a similar window could have been opened in a hypothetical CC-BY-SA 3.1
> >>
> >> If Creative Commons wanted to support the export of sui generis
> >> database protection, there wouldn't have been a need for ODbL in the
> >> first place.
> >
> > It was Creative Commons who started the process of looking for a license
> > that led to ODbL. It's just that Creative Commons left that process along
> > the way.
>
> They left what process?  The goal of the process was not to find a
> license like the ODbL.  The goal of the process was to address the sui
> generis database right within the CC framework.  CC chose to address
> the right by including it in the definition of work and
> unconditionally waiving it.  They did this because including the right
> otherwise might have the effect of exporting sui generis database
> protection to countries without it.


It's a little more complicated than that. CC BY-SA 3.0 Unported, the one
that most people use, is silent on sui generis restrictions. I don't believe
they were seriously discussed (this would have been ~late 2006), but I
haven't reviewed 3.0 discussions in a long time.

There was a policy decision (summer 2007) to waive license requirements for
sui generis restrictions in EU ports of 3.0, effectively conditional on
compliance with the license requirements, unless there's a work in which
only sui generis, not copyright, applies.

I realize this is confusing, as well as the possibility that I'm confused. I
work for CC at present, but am not a lawyer, just wanted to mention it is
fairly nuanced, and note that CC is watching this and other data[base]
discussions. In the fullness of time we'll begin planning for 4.0, and I
believe it will be incumbent on CC to review how all of the difficult issues
are addressed, not limited to sui generis, moral right^w^wimmoral
restrictions ;-), scope of derivatives and noncommercial (obviously
irrelevant here), porting, etc, etc.

The folks at ODC took the exact
> opposite position, and created a license for the explicit purpose of
> trying to export the sui generis database right to countries which did
> not have it.
>
> On this issue I actually think CC-BY-SA made the wrong decision, and
> that they should have allowed the sui generis database right to be
> exported (in the updated version of CC-BY-SA).


I'd hope for something between exporting bad policy and not dealing
effectively with it (what are public copyright licenses but an attempt to
deal effectively with bad policy!?), but I'm sure it is difficult.


> This would have made
> the ODbL unnecessary, at least for OSM's purposes, and would have not
> opened the door to all the *other* changes that came along with the
> addition of the sui generis database right (i.e. the ability to make
> proprietary maps from OSM data, the requirement to offer the
> Derivative Database or an alteration file along with Produced Works,
> the DbCL, the contributor terms, incompatibility with Nearmap, data
> loss, etc.)
>
> But regardless of whether they were right or wrong, I can't imagine
> them supporting the sui generis database right on one hand (by
> facilitating OSM's switch to a license which relies on it), and
> refusing to support it on the other (by only recognizing the right in
> their licenses long enough to waive it).
>

A bigger problem, in my mind, would be facilitating a fracturing of the
copyleft universe. I realize that there's an argument that data and content
are separate magisteria, but I'm pretty skeptical.

Non-offi(cc)iously,
Mike

-- 
https://creativecommons.net/ml
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