[OSM-legal-talk] Copyright status of OSM map data - initial results
eda at waniasset.com
Fri Sep 9 15:57:21 BST 2011
I have employed law firms in the USA and UK to look into the question
of whether the OSM map data is covered by copyright and to what extent
the ODbL would make share-alike terms more enforceable compared to the
current licence. Some details can be found in
Yesterday and today I have had phone conversations with these lawyers
and they have given me some preliminary results. This is a brief
summary of a summary - so there may be mistakes or omissions which are
entirely my fault. When I receive the full written reports I will
make a more detailed report to the LWG and to this list.
In the US, the two lawyers found that the OSM map data is
copyrightable. They mentioned the explicit inclusion of maps in
copyright law and the use of choice and selection in making the OSM
data (the idea-expression merger doctrine), plus some relevant case
However, they did throw up unexpected problems relating to joint
authorship. They considered whether individual OSM contributions
might be too small to fall within copyright, but decided that based on
available precedent, an individual contribution is still
copyrightable. Reading the OSM website, they noted that it sometimes
appears to disclaim copyright on the map as a whole, saying instead
that copyright is held by individual contributors. This might be
something to fix.
The real difficulty is that under US copyright law, a joint owner of
copyright (as for example a co-author of a book) has all rights
associated with copyright. You would not be able to sue a person for
copyright infringement for using a work of which they were joint
copyright owner, although if they got money from it you could demand
that every joint owner got a fair cut. Therefore, collecting
contributions from large numbers of people could mean that each
individual contributor gets carte blanche to do what they wish with
the resulting work. This is a slightly absurd result, which I pointed
out, but they felt that nonetheless it was a problem. (Clearly an
edit made to the map of Austin, TX would not give joint copyright
ownership in the map of Hawaii, but it might conceivably give joint
ownership in the map of Texas.) They felt that the contributor terms
need to be carefully worded to avoid this; contributors need to
promise not to exercise their full rights as joint copyright holders.
The current CTs on the osm.org site do mitigate the problem but are
not as watertight as they could be.
I had also asked them to look at the ODbL's contract-law provisions to
judge whether they help enforcement. (The database right provisions
do not apply in the USA.) However, because they judged that the map
data was clearly within the scope of copyright, they did not go on to
investigate the ODbL's potency for restricting data which is not
copyrightable. That would have been a purely theoretical question.
On their own initiative, and based on reading the OSM website, they
also looked at the question of attribution and the theoretical problem
of having to attribute every contributor individually. They did not
see how the ODbL was any better or any worse than CC-BY-SA in this
regard. I may have to get more clarification on this, since I don't
know the exact reasons put forward for why attribution with CC-BY-SA
may be problematic but fixed in ODbL.
The summary was that a change of licence to the ODbL does not appear
to be justified based on the reasons given in the OSM website.
However, there is a necessity for some kind of contributor terms to
avoid the joint copyright ownership problem, and the current CTs are
not ideal but better than nothing.
* United Kingdom
(I believe copyright law is the same in all parts of the UK)
My barrister in the UK fist considered the situation under the
Copyright Act 1911. Here a 'sweat of the brow' doctrine broadly
applies, and a database of map data can be considered a literary work
for the purposes of copyright. The Street Directory cases are
precedent that even a mere collection of facts (in that case, a list
of street names) is covered.
The 1911 Act was copied widely around the world - in many cases almost
word for word. Not just Commonwealth countries but some others such
as Israel have copyright statues that are based on this Act. Of
course it is possible that recent judgements or statutes have
diverged, and it would be necessary to consult an expert in each
individual jurisdiction to be quite certain.
Now, in the UK the EU Database Directive has superseded the 1911 Act
for the purposes of the OSM database. It defines a database copyright
which applies instead of the old literary-work-style right. (There is
a case pending at the ECJ which argues that the 'classical' copyright
continues to apply in addition to the new database copyright, and is
not replaced by it, but my lawyer thought this argument unlikely to
succeed.) This database copyright is not the same as the sui generis
database right. Database copyright applies when the work "by reason
of selection or arragement are the author's own creation". A
collaborative work still qualifies, since an author can be a "group of
That is the legal test. I asked the barrister to familiarize himself
with OSM's tagging system and common ways of mapping. Based on that
research, his opinion was that the process of OSM mapping does involve
sufficient judgement and creativity to fall within database copyright.
It is not something that can be done without human input; even tracing
from aerial photos creates a copyrightable work. GPS traces are not
input into the system blindly but used as one data source in deciding
how to map the layout of a street. That said, there may be an
argument that an extract of one particular subset of the OSM data
might not fall within copyright, if the data extracted is particularly
The problem of joint copyright ownership which the US lawyers
identified does not apply in Commonwealth countries. Rather than an
'OR' operation as in the USA, jointly owned copyright is more like an
'AND' in that every copyright holder needs to give permission.
Bringing an enforcement action could get interesting as every
contributor would have the right to be a party to the case, but
perhaps the threat of a huge case with hundreds of parties would be an
even more effective deterrent to potential infringers!
So far the UK-based counsel has not had time to look into the ODbL and
its contract provisions, though he tells me there are some interesting
questions. As in the US, the contract-law parts do not appear to be
needed for OSM, since our data clearly is within copyright.
- That's the summary, as I best translate it from my notes of the two
phone calls. I would be happy to meet face to face with anyone
interested - unfortunately I am not able to be at SoTM but am in
London. I may not be able to publish the full report from the US law
firms but I will do everything I can to make it accessible;
potentially, I might be able to arrange for others to join in phone
calls with the lawyers to discuss these matters.
Ed Avis <eda at waniasset.com>
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