[OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons

[Anthony]

On Wed, Sep 1, 2010 at 6:04 PM, Francis Davey <fjmd1a at gmail.com> wrote:
> "maps" are expressly treated as "artistic works" by s.4(2)(a) of the
> Copyright Designs and Patents Act 1988 (to give a UK perspective).

Pretty much the same thing in the US.  "pictorial, graphic, and
sculptural works" are included as examples of copyrightable works, and
"maps" are included under "pictorial, graphic, and sculptural works".

> Whether some or all of the OSM is a "map" is another question - which
> I guess is the one you are asking.

Well, not really.  First of all, I'd say Mapnik tiles are clearly part
of OSM, and I don't think there's any dispute that Mapnik tiles are
maps.  But furthermore, when it comes to the OSM database itself, I
agree with Assistant County Attorney Lori Peterson Dando that "a GIS
database [is] essentially a computerized map" and "may be entitled to
protection under copyright law, not only as a compilation, but as a
'pictorial' or 'graphic' work as well" (see Open Records Law, GIS, and
Copyright Protection:  Life after Feist,
https://www.urisa.org/files/Dandovol4no1-4.pdf).

> I just wanted to make the point that "images" isn't a category much used in copyright
> definitions

Well, in this case we were talking about the definition as used in CC-BY-SA 3.0.

I'd certainly argue that "maps", as used in that license, include GIS
databases like the OSM database, and I'd use Ms. Peterson Dando's
comment that a GIS database is "essentially a computerized map" as
evidence.  Ultimately, if it became a matter of dispute, and judge
and/or jury would decide, and we can only make educated guesses about
whether or not they'd agree.

On the other hand, it might not matter, as I'd also argue that the OSM
database is a copyrightable compilation.  As to that, Ms. Peterson
Dando says "in the context of copyright law, GIS databases are
compilations which may be copyrighted".

Finally, I want to be fair and point out that while (or even if) the
OSM database is copyrightable, that doesn't mean the copyright on it
extends very far.  Again quoting Lori Peterson Dando, "Even though a
GIS database may be copyrightable as a compilation or a map, the
protection afforded by copyright may be thin in light of the Feist and
Mason decisions."

To give a specific example, I'd say a routing database created from
OSM data, suitable for running a shortest path algorithm and providing
driving directions, would be completely public domain and
non-copyrightable, in the US and in many other jurisdictions.

And that, I'd say, is a flaw in CC-BY-SA.  Because it means someone in
a sui generis database rights jurisdiction could take OSM, make a
routing database out of it, improve that routing database, and then
sue people under database rights law for using those improvements.  At
least, under CC-BY-SA 3.0, I think they could.

Yes, the ODbL fixes that.  Unfortunately it "fixes" too many other
things, that weren't broken in the first place.