[OSM-legal-talk] PD declaration non binding?

[Ed Avis]

Frederik Ramm <frederik at ...> writes:

>By the way, the database right exists - in certain jurisdictions like 
>the EU - even if it is not asserted. That means, OSMF is likely to hold 
>database rights over the database even today. But CC-BY-SA says nothing 
>about granting somebody use of the database.

That's not quite the whole story; it does grant you a 'license', not merely
a 'copyright license', to do the things listed in section 3.  If you are
granted 'a license to reproduce the Work', for example, it's hard to argue
that this does not cover making a copy of the database.  The text of CC-BY-SA
does not limit the rights granted; it says that the licence lasts for the
duration of copyright (so perhaps in 70 years there would be a problem, if
somehow the database right lasted even longer) but does not say that only
rights reserved by copyright law are being granted.

However, you mentioned...
 
>This means, and I'm not making this up, that some potential users have 
>received legal advice against using OSM at this time because they 
>percieve OSM to be protected by database law, and at the same time 
>there's no license allowing you to use it under database law. Being 
>allowed to use it from a copyright perspective, as done by CC-BY-SA, is 
>not enough in the eyes of these lawyers.

That is an interesting level of paranoia, but since these people are paid
to be like that, I had better defer to them.

Surely a simple statement from the OSMF: 'We license database rights to you
provided you use the data in accordance with CC-BY-SA' would suffice?

>The problem has been addressed properly only in CC-BY-SA 3.0 (see 
>http://wiki.creativecommons.org:8080/images/f/f6/V3_Database_Rights.pdf).

Interesting.  The humble approach (trying to waive rights in jurisdictions
where this is needed, but not assert them in jurisdictions where they don't
exist) is particularly welcome.  We could have used a lot more of this from
the ODbL drafting process.
 
>Of course if OSMF were to say that they don't assert database right on 
>any contribution made by PD people then that would be great. I am not 
>sure if it is possible legally though, because the very nature of 
>database right is to protect the whole database - once you deal with 
>database right you don't deal with individual contributions or data 
>items any more.

They could waive the right altogether and I don't think the sky would fall.

-- 
Ed Avis <eda at waniasset.com>