[OSM-legal-talk] Substantial meaning
edodd at billiau.net
Sat Apr 25 11:22:24 BST 2009
On Fri, 24 Apr 2009, SteveC wrote:
> Has there been any discussion on what people here feel 'substantial'
> means in the context of the definitions of the ODbL? I've banged
> around the wiki looking but might might have missed it. Here's the
> first important bit relevant to this in the ODbL:
> ""Extraction" – Means the permanent or temporary transfer of all or a
> Substantial part of the Data
> to another medium by any means or in any form. "
> Which I believe follows the language of the EU database directive.
> Basically, what do we feel substantial means when someone takes some
> part of the data? How much is 'substantial'? I won't frame the
> question further as I can see a number of ways and we, the license
> working group, would like to get a feel for the communities views.
> We're not looking for a legal opinion on that here, clearly case law
> one day has to play a role. Rather, what do we think it means?
I'd like to draw your attention to the recently published judgement from the
High Court of Australia, in a case which most certainly involved how much
copying is "substantial".
Many of the cases referenced are from the UK.
So as to indicate that the time and title information alleged to have been
reproduced did not form a large part of a Weekly Schedule, the primary judge
referred to the copying of "slivers of information". However, in order to
assess whether material copied is a substantial part of an original literary
work, it is necessary to consider not only the extent of what is copied: the
quality of what is copied is critical.
This principle has a long provenance and it is particularly apposite when
considering a compilation. Some compilations are no more than a selection or
arrangement of facts or information already in the public domain. When the
particular form of expression contains facts and information, it is not
helpful to refer to "the rough practical test that what is worth copying is
prima facie worth protecting". To take an example, facts are obviously
worth copying for purposes such as a narrative work of history which depends
on secondary sources. It is equally unhelpful to refer to the "commercial
value" of the information, because that directs attention to the information
itself rather than to the particular form of expression.
It is often said that questions of whether a substantial part has been copied
are questions of fact and degree. However, a factor critical to the
assessment of the quality of what is copied is the "originality" of the part
which is copied.
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