[OSM-legal-talk] Someone already had a look at the BingTermsofUse?

[Anthony]

On Sun, Dec 19, 2010 at 5:30 PM, Rob Myers <rob at robmyers.org> wrote:
> On 19/12/10 21:52, Anthony wrote:
>>
>> What is "the German equivalent
>> of a 'derived work'"?  And, if you're saying it's different, then how
>> can you say it's equivalent?
>
> Your local copyright law almost certainly mentions "adaptation" rather than
> "derived work". Your referring to "derived work" is therefore the use of an
> equivalent concept in your own legal system.

You mean the US legal system?  The US code uses the term "derivative
work" (http://www.copyright.gov/title17/92chap1.html#103), as does
much of the case law.

>> It's quite a leap to go from the fact that aerial photographs are
>> protected by copyright law, which is probably true even here in the
>> United States (with the note that aerial photographs are not the same
>> as satellite photographs), to saying that a tracing of an aerial
>> photograph is a derivative work.
>
> If there isn't a copyright in the original, work that copies from it cannot
> infringe that copyright because it doesn't exist.

Sure, but the reverse is not true.  There can be copyright in the
original, yet a work that copies (non-copyright parts) from it do not
infringe that copyright.  That is probably the situation with
OSM-style "tracing" of aerial photographs.

> If there is a copyright then producing a recognisable copy of some part of
> it will, modulo fair dealing (or fair use, which is its equivalent concept)
> it will infringe on that copyright.

I'm not sure if we disagree on substance, or if it's just a
terminology thing.  How would you reconcile that statement with Bauman
v Fussell?  There was copyright in the original.  A recognisable copy
of some part of the original was made.  Would you call it a case of
fair dealing?

> Now if you're talking about tracing ways from photos I would agree,
> philosophically, that it is a leap to regard those as derivatives.

Yes, that is what I was talking about.  Isn't that what this thread is about?

> But if it's a leap the courts have made or that companies with more lawyers than
> OSM've got have made then that's what we have to deal with.

Is it a leap the courts have made?  If it's just something being
claimed by "companies with more lawyers than OSM've got", then how
should we deal with it?

>> If you're concerned that tracing aerials might create a derived work
>> (which I'm not), then you need a license from the copyright owner of
>> the image, which is probably not Microsoft.
>
> You need a licence from someone with sufficient rights to grant you that
> licence. Which in this case is Microsoft.

What makes you think Microsoft has sufficient rights to grant that license?