[OSM-legal-talk] ODbL: Who is the licensor / whose "database" is it?

[Frederik Ramm]

Hi,

   there is another open question concerning the implementation of the 
planned ODbL. To recap, the ODbL/FDL Duo will acknowledge that the 
individual data items are not subject to copyright, but as a database 
they are protected.

The question is: Where is the database created and who is, therefore, 
the licensor?

In our current (faulty) assumption about CC-BY-SA, we say that a 
copyrighted work is created by the mapper who then licenses it under 
CC-BY-SA and allows OpenStreetMap (as well as anybody else) to use it. 
OSM does not have a special position in this construct; OSM is just one 
of many potential users of that mapper's CC-BY-SA licensed data. OSM 
collects and merges many CC-BY-SA licensed bits of data but so might 
anybody else. Ownership and copyright remains with the original author.

In the future, legal protection will only arise from the fact that the 
data is part of a larger whole, where non-trivial work has been done to 
create that "whole". The database directive assigns ownership of the 
"whole" to whoever has done the work to assemble and arrange the data in 
the database.

I can see three possible interpretations:

1. Each mapper has his own database, of which he makes a copy available 
to OSM under ODbL which then creates a derived database. In that case, 
of course, each mapper is a licensor, and OSM is a giant work derived 
from many individual databases.

2. Each mapper only has an unprotected pile of data items which he 
uploads to OSM without any license; only by incorporating it into OSM is 
the database created, and the OSM Foundation as the operator of the 
servers on which all this happens is the creator of the database. OSMF 
is the sole licensor of OSM data, all database directive protection 
applies only to OSMF.

3. Each mapper only has an unprotected pile of data items which he 
uploads to OSM without any licens; only by incorporating it into OSM is 
the database created. In uploading his data, the mapper becomes a 
"co-creator" of the central database and he is entitled to protection 
from the database directive; however he has agreed not to exercise any 
rights arising from this "co-creatorship" as long as OSMF distributes 
the resulting database under ODbL.

I am not sure if this is perfectly clear to everyone but these three 
options are vastly different and probably each carries along with it a 
wholly different bag of legal implications. Option 3, especially, would 
require a hitherto completely undiscussed sort of legal contract between 
the mapper and the operator of the database servers ("I help you to 
create this big database, and I agree to do X/not to do Y as long as you 
publish the database under ODbL"). Option 2 does not have such a 
contract between the mapper and the server operator, but basically 
assigns all database directive protection to the server operator (think 
the "foundation taken over by Navteq carpetbaggers, rescinds ODbL, goes 
PD" scenario). Option 1 does not have such a contract either, relying on 
the ODbL itself instead, but this only works if whatever the mapper 
hacks into JOSM/Potlatch can be construed to be a database in itself.

I'm sure there are also options 1a, 2b, or 4, but I couldn't think of 
them right now.

In my eyes this is an important topic to think about BEFORE selecting a 
license that is based on the database directive, not something that 
should be left for later as an "implementation detail".

Bye
Frederik

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