[OSM-legal-talk] Database right for public transport

Francis Davey fjmd1a at gmail.com
Mon Dec 6 22:58:51 GMT 2010


On 6 December 2010 20:57, Andrei Klochko <transportsplan2 at gmail.com> wrote:
> Hello,

[snip]

> strategy, to avoid trouble. Any advice on such an entreprise?

I'm not sure that this is really on topic for this list since it
doesn't impact legally on open street map (or it shouldn't). Its also
the kind of thing you should talk to a lawyer, preferably a French
lawyer, about rather than asking for advice on list, since you may get
more reliable advice that way. Also - this is true in this country but
may not be true in France - lawyers prefer to be formally instructed
when giving advice of this specificity in case the advice is acted
upon and then the person they advised gets into difficulty. The formal
instructions are a form of protection for the lawyer.

Having said that you might want to think carefully about the
difference between database copyright (in L112-3 of the intellectual
property code) and the sui generis database right (in L341-1).

There's a reasonable argument, based on the Fixtures Marketing cases
(see http://curia.europa.eu/fr/actu/communiques/cp04/aff/cp040089fr.pdf)
that a transport company does not acquire a database right in its own
timetable data because it does not expend resources "collecting" it
(in French the word is "la constitution" rather than "collection"). It
makes the timetable itself so does not need to collect it. As the
creator it has no database right (an odd but important result). I
think that is the thrust of your argument.

But, a transport company might be able to claim a database copyright
in its timetable on the basis that it is an "intellectual creation".
The idea of the database directive was that a common standard would be
applied across all EU states for the threshold test for database
copyright. My impression is that the threshold for database copyright
is lower in France than it is for most other forms of copyright, but
that is still somewhat uncertain I think.

The reason this may be a real issue is that it does require
intellectual creativity to put together most transport timetables.
Considerable thought needs to go in to ensuring that they work. On the
basis of a recent High Court case in which the football league's
fixtures list was accepted as an intellectual creation, I am fairly
sure that such timetables are copyrightable as databases in England.
The standard _ought_ to be the same in France, but there has been no
direct court of justice authority on the point as far as I know.

In other words: I don't think it would work.

-- 
Francis Davey



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