[OSM-legal-talk] [OSM-talk] Progressing OSM to a new dataLicence regime

[Jordan S Hatcher]

On 5 Feb 2008, at 20:57, Frederik Ramm wrote:
> What we could do is grant the foundation the right to dual-license the
> data, either globally or to specific (paying?) users. But the license
> that we now choose should remain fixed.

On 5 Feb 2008, at 22:06, Gervase Markham wrote:

> Robert (Jamie) Munro wrote:
>> Long term, we can avoid the ambiguity by making it clear that all  
>> data
>> belongs to OSM, whoever that is (probably the foundation), then we  
>> can
>> let the foundation change the license whenever they need to.
>
> This would be a copyright assignment, which would be a large change in
> the relationship between the participants and the project. As far as I
> understand it, it hasn't even been proposed.

I'd like to note that, just to clarify, factual data is generally not  
copyrightable, and so there would be nothing to assign. Applying a  
copyright licence to something that isn't copyrightable *might create  
a contract but wouldn't create a copyright where one doesn't exist.   
Iván mentioned this earlier, though I have one comment on that post:

On 5 Feb 2008, at 14:39, Iván Sánchez Ortega wrote:
> It depends.
>
> It depends on your view over the "copyrightability" of individual  
> pieces of
> data.
>
> If a singular piece of data is "copyrightable", then the 15-yeard- 
> old database
> right expires, but the individual copyrights do not.

A "singular piece of data" would not come under the database right  
either. Database rights arise when there has been substantial  
investment in obtaining verifying or presenting the contents of a  
database. One piece of data, or a entire set of data without a  
database doesn't get database rights.

>
> If a singular piece of data is not "copyrightable", then the data  
> is basically
> in the public domain.
It is without copyright, but depending on the data (not as relevant  
for the geodata community admittedly) it could not be free to use --  
think about personal data.

>


So, within the context of the ODC-DbL / FIL combo:

-- Factual data comes under the FIL and is free to use
-- The database as a whole comes under the ODC-DbL

The DbL/FIL is a "leaky ship" in that:

-- Copyright probably protects copying (and other restricted acts)  
the entire database and (to varying degrees only parts of the  
database) but doesn't say much of anything about taking all the data  
and creating a new database
-- Database rights in Europe protect extracting and re-utlising  
substantial amounts of the data apart from the database (so sucking  
out all the data and creating a new database).
-- Outside of Europe, you are likely to rely on contract and other  
law (possibly unfair competition claims). Contract claims are one-to- 
one (in personam) and not one-against-everyone (in rem). This means  
that it is harder to enforce your claims against people who received  
the (uncopyrightable) data from someone who breached the contract.

In the protocol, FAQ, and other venues, Science Commons argues:

-- People think that copyright protects actions with databases that  
it doesn't (such as getting all the data out and creating a new  
database)
-- What copyright does and doesn't protect in a database is really  
tricky, even for IP experts, and so making the public try to parse  
all the minute legal questions is overly burdensome and expensive  
both in money (lawyer fees), time (spent wondering about the rights),  
and lost opportunity (not using the database because of all the hassle)
-- Database rights legislation is bad policy and bad law and  
shouldn't be used. See the European Commission's own review:

"First evaluation of Directive 96/9/EC on the legal protection of  
databases"
<http://europa.eu/eur-lex/pri/da/oj/dat/2004/l_195/ 
l_19520040602da00160025.pdf>

"The economic impact of the “sui generis” right on database  
production is unproven.  Introduced to stimulate the production of  
databases in Europe, the new instrument has had no proven impact on  
the production of databases. ***
Is “sui generis” protection therefore necessary for a thriving  
database industry? The empirical evidence, at this stage, casts  
doubts on this necessity.
[They then go on to discuss repealing it, but conclude that it is  
easier to leave it in place]"

-- Database rights are limited to Europe and so do not have worldwide  
applicability

--Contract creates a barrier of opportunity and transaction costs  
similar to copyright [above]. In addition, it is harder to enforce  
against third parties after breach and so offers only limited  
protection.

There has been some discussion of commercial data providers on this  
list.  I'm no expert in their practices, but they rely on:
-- IP rights such as copyright and database rights
-- contracts that prohibit re-distribution
**-- technical protection measures, passwords, that sort of thing
**-- providing value-added services that are clearly protected by  
other rights
**-- marketing, branding, trade marks (and so on) that identify them  
as a quality source of information
**-- better services than other providers

I think it's important to point out that commercial companies  
protecting their data do not allow their users to share it, and so  
most of their protection is based around this. By allowing others to  
share the work freely, you lose many of these avenues of protection  
(like technical protection measures, for example). So the model is  
different. Where others have the same data (say US case law and  
Westlaw versus Lexis), then they package it with other material and  
brand themselves as the best place to go.

The SC point is that all this sort of stuff can be a real pain, and  
isn't what you are really doing is wanting to create and manipulate  
factual data? Why spend all the time on this when the innovation  
happens in what you can do with the data, and not with trying to  
protect the data in the first place.

The above is a generalization of the law and is not legal advice as  
the picture is much more complex than above. I am actually a lawyer,  
but I am not YOUR lawyer (if I was we'd have a contract for services  
and you'd owe me a hefty retainer!)

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
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