[OSM-legal-talk] The OSM licence: where we are, where we're going

[Richard Fairhurst]

Peter Miller wrote:

> It is good to see progress on this; I can see I am going to need to put some
> time aside for this. I have not read every thread yet, but here are a couple
> of quick questions of clarification:
>
> Richard states that '"If you create something else then the 'something else'
> also has to be copiable under the same terms and conditions (ShareAlike)".
> Is this true? It is my clear understanding that the 'collective work' clause
> in the CC-BY-SA agreement allows for inclusion of mapping data into
> something else which can be copyright.

Yes, there is of course the Collective Work clause. Treat the three  
bullet points from which you quote as a very broad-brush abridgement,  
akin to CC's own summary of their licences: "This is a human-readable  
summary of the Legal Code (the full license)". I tried not to put  
people off in the first sentence. :)

(I'll deal with the applicability of the licence, including the  
Collective Work clause, after the break.)

> Richard states that "Most importantly, though, there is a strong body of
> legal opinion that our existing licence is not valid (for our purposes) in
> most of the world. Creative Commons bases its licences on copyright. In
> Europe, however, geographical data is principally protected by database
> right, and in the States, the only available protection is contractual."
> What is this 'body of evidence' and why does in not impact on Navteq,
> Teleatlas OS etc who protect their work using copyright; I have signed
> contracts with both Navteq and with the Ordnance Survey for their vector
> data (similar in scope to OSM data) and am required to put C Navteq or C
> Ordnance Survey on the bottom of every map that incorporates their data. To
> be clear they certainly do not own the actual rendering which is based on
> our own proprietary software.
>
> I would really prefer to hear a definite legal view on this from a real
> lawyer. I know we all have own opinions but we need make sure we are not
> just stirring urban myths around.

As you know, Peter (and you'll understand me being slightly  
circumspect with my phrasing), OSM's licence has indeed recently been  
examined by a real lawyer in a real-life situation.

This lawyer is employed by a company whose sole business is Internet  
mapping. His view (and, consequently, the one taken by his employers)  
was that the share-alike clause stretched far in excess of anything  
ever propounded by anyone on this list, making OSM unusable by said  
company. This directly meant that OSM lost an opportunity for a very  
significant advancement through his employers.

Now if even he is taking such an overly-cautious view of our current  
licence, thereby preventing a use which (I believe with some  
justification) every copyright-holder of the OSM data would support,  
we clearly have a problem with the way our current licence is  
interpreted - and law exists only in the interpretation.

In the UK, there is no directly relevant prior interpretation that we  
can call on (the rest of the EU follows along similar lines; I'll come  
onto the US in a minute): in other words, no case law. Therefore we  
have to rely on the judgement of a specialist who has extensively  
researched this area. As the above case demonstrates, we cannot give  
our current licence to a lawyer - even one with some expertise in  
Internet mapping but not open data - and expect them to wave a magic  
wand to make everything ok. They are just as likely to wave a wand to  
make everything a whole lot worse.

The required in-depth examination has principally been provided by  
Charlotte Waelde's paper  
(http://edina.ac.uk/projects/grade/gradeDigitalRightsIssues.pdf). It  
is supported by the explicit statements of Creative Commons, and their  
Science Commons project, that their licences are not intended and not  
suitable for factual data, and that disclaimer is significant in  
itself. Although I do see where you're coming from with the  
Navteq/Ordnance Survey comparison, it's not comparing like with like.  
Firstly, you say you have "signed contracts": the wording in these  
contracts can expressly permit and forbid behaviour whether or not  
copyright is involved. (Even Google don't rely on copyright alone to  
enforce use of their maps, they have Ts&Cs.) Secondly, we are of  
course different in scope, coverage and rights ownership (many vs  
single) to a commercial supplier.

In the US it is much, much simpler. There is a lot of directly  
relevant case law stating that copyright does not generally subsist in  
factual information. (Feist vs Rural (Supreme Court) is the grandaddy  
of it all: see also Mason vs Montgomery but remember that it's  
expressly concerned with maps, not geodata.) Because OSM contributors  
are the copyright holders, and they are based in many jurisdictions,  
we need to have a licence that (as far as is practicable) is  
applicable to collaborative geodata over all these jurisdictions.

cheers
Richard