[OSM-legal-talk] License Cut-over and critical mass

Francis Davey fjmd1a at gmail.com
Fri Jul 16 17:44:45 BST 2010


On 16 July 2010 17:11, Rob Myers <rob at robmyers.org> wrote:
>
> Science Commons seem to think copyright doesn't apply to databases, OKFN
> seem to think it might. I'm erring on the side of caution. If you can
> provide any clearer guidance I'd be very grateful. :-)

You might want to read the Supreme Court decision in Feist and subsequent cases:

http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service

is a wikipedia summary (though you should read the case law if you
want to really understand the issues involved). The key point is that
merely having invested a lot of effort in collecting information is
not sufficient on its own to make that information subject to
copyright. How this would fit in with OSM would depend a great deal on
what it was that you were protecting.

In the EU/EEA copyright certainly does attach to a database as a
result of the database directive (96/9/EC):

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML

But there is quite a high threshold for protection since there is a
requirement that databases so protected "by reason of the selection or
arrangement of their contents, constitute the author's own
intellectual creation". There is some recent litigation in the English
High Court as to whether football fixtures lists are subject to
database copyright.

In the EU/EEA we also have a database right which is different (a form
of IP in databases separate from copyright) which is more closely
linked to the amount of work/investment in a database, but it is not
entirely straightforward. For example football fixtures lists aren't
so protected (because the leagues are creating them anyway as a part
of running a football league).

In Australia, there was an important decision last year in the High
Court involving TV schedules:

http://www.copyright.org.au/news/news_items/cases-news/2009-cases/u29768/

Its quite subtle but it represents (in my view) a rejection that mere
investment or effort in creating a collection of information is enough
to give copyright protection, which would make mere data not
protectable.

Sorry to but in (as an outsider) with my legal half-pennyworth but I
hope it is some help. As a copyright lawyer this is all very
fascinating intellectually, but extremely difficult when it comes to
advising clients.

-- 
Francis Davey




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