[OSM-legal-talk] Contributor Terms draft changes

Francis Davey fjmd1a at gmail.com
Sun Feb 14 20:42:30 GMT 2010


On 14 February 2010 19:33, Mike Collinson <mike at ayeltd.biz> wrote:
> We are wanting to introduce dual-licensing for *new* registrants as soon as
> we have the new Contributor Terms nailed down. That means a final review of
> the current wording by legal counsel and then I'll ask for any last(?)
> comments from this list.
>

Good stuff. I've not give it a thorough reading, but thought you might
be interested in a couple of comments (I realise you have counsel to
do this, but since I am also a copyright lawyer, my half-pennyworth
might be of some interest).

[1] "....as part of a database only under the terms of one of the
following licenses..."

has two parsings: "only" may modify "database" or the following
phrase. I.e. you might mean (a) that when you sub-license it will only
be as part of a database and only under one of the licences given, or
(b) that when you sub-license it as part of a database (but not when
you otherwise sub-license it) that sub-licensing will only be on one
of the following terms....

I hate ambiguity in a contract or licence and usage (a) is the less
usual of the two ways in which "only" is used as a modifier in
English.

[snip]

>
> 1) License violations - can someone sue on the basis of misuse of their
> data?  Our understanding from Counsel is: Yes.  OSMF can on the basis of
> collective/database rights. An individual contributor can if it concerns
> data that they added.  Board suggested that we deal with this via Community
> Guidelines ... for example, asking contributors to be courteous; setting up
> how and when the OSMF would expected to act; name and shame where possible;
> etc. We have therefore made no addition to the Contributor Terms, it is
> already long.

OK. That's clear. At the moment you probably cannot take advantage of
section 101A of the Copyright Designs and Patents Act 1988 which
allows a licensee to sue in certain circumstances. Are you quite clear
that the advantage of short contributor terms outweighs the
flexibility of being able to sue for violation of copyright (rather
than database right)?

The sort of change I envisage would be to insert after "These rights
include, without limitation, the right to sublicense the work through
multiple tiers of sublicensees" the phrase "and to sue for any
copyright violation directly connected with OSMF's rights under these
terms."

Something like that.

[snip]

>
>
> 3) and a tiny plain language change to make it more obvious that an active
> contributor is a person not a bot by using the word "who".

Why not put it beyond doubt by replacing "contributor" with "natural
person", so that you have:

"a natural person (whether using a single or multiple accounts) who...."

Since you never defined "contributor" having the term there doesn't
add very much.

Lastly, I am sure this has come up on the list before, so forgive me
as a newcomer not knowing the thinking on it, but if this is a
contract/licence governed by English law, then wouldn't it be sensible
to use the spelling used in the courts of the jurisdiction, i.e.
British English? I have in mind all those uses of "license" for
"licence". I'm happy to go through and make the changes if it would
help 8-).

Good work on this.

-- 
Francis Davey




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