[OSM-legal-talk] Removal of CC-SA-BY licensed data from OSM after ODbL takes effect

[Frederik Ramm]

Hi,

Iván Sánchez Ortega wrote:
> It has been argued that *individual* pieces of geographical information (and 
> other factual data) are not copyrightable, while the whole set is indeed 
> copyrightable. That's what the EU database directive and the ODbL are all 
> about.

I have today (attending a workshop about legal aspects of geodata) 
learned that there are indeed three different aspects:

1. Copyright. - Never applies to an idea, only ever applies to the 
concrete expression of the idea. Certain amount of creativity must be 
involved. - You can reverse engineer Geodata from a printed map without 
violating copyright but you cannot copy the map design. Copyright can 
only be held by a natural person and, at least in Germany, exists 
automatically whenever you create something. There's a catalog of things 
for which copyright applies. For example it does apply to satellite 
images even though there is no creative act involved.

2. Copyright for databases. This is a sub-form of copyright that can 
protect a database even if the individual data items are not protected. 
It requires (a) a database and (b) a non-trivial "creative act" to set 
it up (e.g. well-designed data model etc). This can also only be held by 
a natural person and is just the same as normal copyright. (Note, it 
does not protect the contents of the data base.)

3. Database directive. This applies to databases even where the content 
is not protected, and, contrary to copyright, does NOT require the 
"creative act". Instead, it requires an non-trivial "investment" (in 
collecting, arranging, presenting the data). Also contrary to copyright, 
this protection does NOT apply to the creator, but to the person 
(natural or incorporated) that actually does the investment.

Copyright protection ends 70 years after the death of the author, while 
the database directive protection ends 15 years after the work has been 
created (but the 15 years are refreshed whenever additional non-trivial 
investment is performed to keep data up to date).


I am, meanwhile, absolutely sure that the data in our data base is not 
copyrighted and that the license we currently have is, since it is built 
on copyright, not applicable. But when asked by third parties about OSM 
I tend to act as if CC-BY-SA was alive and working because that's what 
we (the project) have (involuntarily) led our contributors to believe.


I would be very interested in hearing from the proponents of the new license

(a) since the license allows - must allow, according to the database 
directive - the free extraction of non-substantial amounts of data, do 
you have any idea about what you might want to call substantial? The 
lawyer I have listened to today said that it was mainly a question of 
comparative amount, i.e. there will be some percentage that you can 
extract with impunity. Any idea about that percentage, or promill-age or 
whatever?

(b) what exactly is the plan for dealing with jurisdictions that don't 
have a database directive? Just to outline this point for new readers - 
in a world with database directive, the "default" allowed use of a 
database that contains individual non-protected data objects is "no 
permission". This means you have to get permission, and in doing so you 
can enter any number of licenses/contracts. In countries without 
database directive, the "default" allowed use of a database that 
contains individual non-protected data objects is "you can do anything 
you want with it", which means that you are not forced to even *read* 
any license document that comes with it, much less abide by its terms.

These are two big issues that concern the implementation of the new 
license and they haven't been discussed, much like the transition 
strategy which has been asked about in this thread.

Bye
Frederik




-- 
Frederik Ramm  ##  eMail frederik at remote.org  ##  N49°00'09" E008°23'33"