[OSM-legal-talk] ODbL and duration of IP protection

[TimSC]

Hi all (here comes trouble, again),

Another issue which occurred to me is the issue of the lapse of 
exclusive rights over the OSM dataset, including copyright, database 
rights and other IP. The issue is a really long term consideration but 
it is important to get the foundations correctly laid. The exact 
duration of protection is probably horribly complex due to different 
legal jurisdictions. Ideally, the database would be protected for a 
finite period and would come out of protection across the globe 
simultaneously. The latter is necessary for legal predictability.

As I understand it, EU/UK law has a 15 years database right which renews 
if there are more recent substantial changes. If OSM continues in the 
long term using ODbL, this is effectively a perpetual exclusive right. 
For areas which rely on contract law, it seems that OSMF again retains a 
perpetual right over the data. I will try to argue this is not good.

The public domain is important for all created works, as it provides a 
"no strings attached" pool of cultural and intellectual resources. This 
removes the burden of legal compliance on future works (which is 
definitely non-zero effort). Check out Lessig's book Free Culture in 
which he argues that long or perpetual copyrights create a permission 
based culture which is detrimental to creators. For that reason, many 
exclusive protection rights have LIMITED duration. This is acknowledged 
in the US constitution: "To promote the Progress of Science and useful 
Arts, by securing for limited Times to Authors and Inventors the 
exclusive Right to their respective Writings and Discoveries." 
Obviously, OSMF are intending to make the data available under an "open 
license". This doesn't remove the high transaction costs and license 
un-interoperability of ODbL in the long run [1] of decades and centuries.

To some extent, these issues were not of our making, but we at least try 
to address it.

So the issues are:

1) The duration of the lapse of OSMF's exclusive right is probably 
different in various jurisdictions. This creates complexity in reuse for 
PD and therefore legal uncertainty.

2) The duration claimed under the ODbL in some jurisdictions seems to be 
perpetual, which is imposes an unacceptable transaction and license 
interoperability burden on future creators.

One possible solution is to explicitly state the duration of protection 
under ODbL in the license.

Btw, the solution that "OSMF will fix it later" is not really good 
enough for me; what makes the future better for fixing problems when we 
have the present? In fact, all creative common's comments on ODbL really 
apply [1]. Given the fairly abstract nature of my concern, I guess many 
will think "who cares?". Well, I care. As a side note, I notice that I 
can't get an answer to a simple legal question [2], so for this is 
horribly complex issue, I don't hold out much hope on a straight answer!

Regards,

TimSC

[1] 
http://wiki.openstreetmap.org/wiki/ODbL_comments_from_Creative_Commons#The_ODbL_Can_Result_in_High_Transaction_Costs_on_the_Data_Sharing_Community 

[2] such as "can produced works be released as CC0"
http://lists.openstreetmap.org/pipermail/talk-gb/2010-May/009567.html