[OSM-legal-talk] Database rights and who has them

[Richard Fairhurst]

Peter Miller wrote:
> Note that it is our lawyer's opinion that much of OSM data 
> is protected by copyright and that the license does not 
> reflect this adequately and relies on database rights too much

I haven't really got time for the full reply this thread deserves, and
obviously in this context IANAL and your lawyer, er, is, but I think this
kind of misses the point.

ODbL does not rely on database rights over and above anything else. ODbL is
entirely tripartite: copyright, db right, contract. There is nothing
particularly specific to each application. Some of the _language_ has things
in common with EU database right law but this isn't too surprising given
that it's a database we're talking about.

Your lawyer may well be right that some copyright protection subsists. But
it doesn't really matter. There is virtually no case law on any of these so
we are all, whether qualified lawyers or amateur legal wankers, mostly in
the dark. Go back a few weeks to Steve's point about case law, and BHB vs
William Hill is of course the nearest there is to anything definitive, but
it's so intensely arcane even by the standards of IP law that three
different people invariably get three different things out of it - a quick
Google demonstrates.

What ODbL does absolutely right is recognise that, if you are going to try
and protect IP in database information (disregarding for the minute CC's
point, and my personal view, that we shouldn't), you _have_ to take a
belt-and-braces approach. There might be copyright. There might be db right.
No-one, in the world, knows. The best way to get any certainty is to arm
yourself to the teeth and use a licence that copes with all three.

cheers
Richard




(On a point of detail I agree that the FIL may potentially be a complication
we don't need. Certainly it needs a bit of thought.)
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