[OSM-legal-talk] PD declaration non binding?
Richard Fairhurst
richard at systemed.net
Fri Jul 23 14:37:24 BST 2010
TimSC wrote:
> Richard Fairhurst wrote:
>> The database is available under a particular licence which is separate to
>> the licence of the contributions.
> This is the bit I guess I still don't fully understand. If I have only
> agreed to CC-BY-SA, how does this relate to what you have said? What
> are the separate licenses? I guess you are going to say CC-BY-SA
> completely fails to address the database rights issue.
Ok. There are two types of rights in "OSM" in its broadest sense:
a) the rights in the individual contributions
b) the rights in the database as a whole
The user preference refers to (a). The right in question will generally be
copyright, where it exists.[1]
(b) covers "the selection and arrangement of the contents" in the database.
It belongs to the "author" of the database. Two separate rights cover this
in the UK: EU-law database right, and a small amount of UK-law copyright as
applied to databases. (The scope of the latter was significantly narrowed
when the former was introduced.) But this varies vastly across the world.
The US does not have a dedicated database right, and databases only merit
copyright protection there if significant, individual "creative expression"
was involved in selecting the contents. And so on.
In OSM, the users hold (a). OSMF _probably_ holds (b), but it may perhaps be
possible to postulate that "the community" has some stake in it, too. The
law doesn't expressly cater for large collaborative projects and I'm sure
lawyers would lick their lips at the thought of it.
So to return to your question, how does this relate to your agreement to
contribute under CC-BY-SA?
First of all, this agreement only relates to (a). You have agreed to licence
your contributions under CC-BY-SA for use by OSM. OSMF has not promised to
you that it will only distribute the database (i.e. (b)) under CC-BY-SA. It
could in theory decide to distribute the database under a different licence.
How that might interact with _contents_ which have a share-alike derivative
clause is really very complicated.
Secondly, CC-BY-SA does not address the EU or other database right, only
copyright. Copyright may or may not subsist in the database (depending where
you draw the line between EU-law database right and UK-law database
copyright[2]). It may or may not subsist in the individual contributions,
either (that's the old sweat-of-the-brow vs originality argument). So it
might not be relevant anyway. Hooeee.
To recap, at present:
- you have agreed to offer your contributions under CC-BY-SA, which may or
may not be appropriate
- OSMF has not promised anything about how it will make these contributions
available to other people, and basically goes along with CC-BY-SA out of
entropy even though it's not entirely suitable
- my head hurts.
The current process is an attempt to sort this out by giving us a licence
that should work in more circumstances; by giving users more security by,
for the first time, obliging OSMF to distribute the results under an open
licence; and by making our heads hurt less.
> Imagine if several users upload their own PD data to a central server
> (imagine it is exclusively PD on this server). Is a database right
> automatically created and who owns it? It can't be the contributors
> because they waived their IP rights(?). Does the server owner get the
> database rights? If so, we can ask them to waive their rights. To what
> extent is our mixed licensing situation different?
Yes, a database right exists. The "author" of the database is probably the
person/organisation who created the schema, wrote and enforced the criteria
for acceptance into the database. (You see my point that "the community" may
have a stake in this.)
Yes, we could ask them to waive their rights. ODC's PDDL does this. This
would effectively mean use of the database and its contents was completely
unrestricted. As a PD advocate I'd like this but there are certainly people
in OSM who wouldn't.
Our mixed licensing situation is more complex. For example, let's say you
contribute some factual data in which (in certain jurisdictions) no rights
exist, because it's not original or substantial enough to merit copyright
protection. (In the US, this may include most of the street network.) If
OSMF has waived its EU database right and its copyright, and is not
requiring agreement to a contract, then this data can be freely copied with
no attribution or share-alike requirement. Again, as a PD advocate I
wouldn't mind that, but others would.
cheers
Richard
[1] It is possible there may be some db rights in these, too, but that gets
really really hairy.
[2] Really interesting case about this recently which I'll write about some
time...
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