[OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?

80n 80n80n at gmail.com
Sun Apr 17 22:39:33 BST 2011


On Sun, Apr 17, 2011 at 8:23 PM, Francis Davey <fjmd1a at gmail.com> wrote:
> On 17 April 2011 19:29, 80n <80n80n at gmail.com> wrote:
>> I'm not clear about what you mean here.  Can you spell it out please?
>> What does 'it' refer to in this sentence? why do you say obviously?
>> And in what sense you mean can?
>>
>
> Sorry, all I meant was that there is nothing to stop you *doing*
> something whether it is legal or not.
>
> There's a point to this pedantry (or at least part of one). Its often
> confusing to talk about being able to do X or Y when what's really
> important is what the legal consequences of it might be. I am sorry if
> I was less than clear.

Understood.

>
>>>
>>> (3) CC-BY-SA does not give you the authority to sublicence under an
>>> arbitrary licence, so you would have no authority to give the licence
>>> in CT 1.2.4 or something like it and that grant of licence would be
>>> void as against the original copyright owner (though binding on you)
>>
>> Ok, but can you explain what "void as against the orginal copyright
>> owner" means?  Does it mean the grant of license has no effect on the
>> license granted by the owner of the orginal work?
>
> I meant that the grant had no effect on the legal rights of the
> original copyright owner. It won't stop them from enforcing any right
> that they were able to enforce before the grant.
>
>>
>> This point seems to me to be the crux of what I was trying to
>> understand.  But it leads to the subsiduary question, is the act of
>> submitting content to OSM an act of distribution or publication as
>> defined by CC-BY-SA?
>
> Well, assuming we are worried only by copyright (since CC-BY-SA says
> nothing about database rights) then the first question is what acts by
> a contributor might require the permission of he copyright owner (or
> they would otherwise infringe) then the second question is: does
> CC-BY-SA give that permission.
>
> If I obtain a work subject to copyright then contributing it to the
> project involves: (i) an act of copying (or reproduction); (ii)
> possibly an authorisation; and (iii) possibly an act of making
> available to the public (depending on whether the work was public or
> not beforehand).
>
> For simplicity lets assume (iii) doesn't apply as it will not in most cases.
>
> So, reproduction requires the permission of the copyright owner.
> CC-BY-SA grants a right to "to reproduce the Work", so reproduction by
> the contributor won't infringe the copyright owner's copyright because
> the contributor has permission via the CC licence.
>
> "distribution" and "publication" aren't terms used in UK copyright law
> for classes of activity that require permission of the copyright
> owner. You can find a list of acts restricted by copyright at:
>
> http://www.legislation.gov.uk/ukpga/1988/48/section/16

Distribution is a term used in CC-BY-SA, but I guess this is
effectively embraced by the term Copy in the UK legislation, as you
cannot distribute something without first making a copy.

Section 16 (2) of the Copyright, Designs and Patents Act 1988 says:
"Copyright in a work is infringed by a person who without the licence
of the copyright owner does, or authorises another to do, any of the
acts restricted by the copyright".

>From this it seems to me that giving of a copy of a CC-BY-SA licensed
work to OSM by someone who has agreed to the contributor terms would
violate this clause.  They are authorising OSMF to do acts that are
restricted by copyright and are not permitted by CC-BY-SA, and that
therefor is an explicit infringment of copyright.  Have I missed
something here?

>
> "distribution" is a term used in the EU Copyright Directive (in article 4):
>
> http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
>
> and corresponds to s16(b) and s16(ba) in the Copyright Act. But you
> are more likely to be concerned with the rights in article 3
> concerning communication to the public.
>
> "distribution" is a permitted act under CC-BY-SA under 3(d).
> Restricted by 4(a) as only being under "this license" (USians don't
> know how to spell :-).

License, licence, דערלויבעניש ,דערלויבעניש ;)

>
> "distribution" doesn't appear to be defined under the CC licence, but
> it seems to me that the sense of 3(c) and 3(d) must be wide enough to
> permit distribution in the EU/UK sense.
>
> A contributor's uploading of a work would not, on its own, amount to a
> "distribution" it seems to me,

Why not?  They are making a copy and providing that copy to a third
party.  Is there anything in copyright legislation that permits a copy
to be made "in private", where "in private" is between two consenting
but separate parties?  If I copy something and then give it to someone
else under a private agreement between the two of us, am I violating
copyright?


> but the contributor is almost certainly
> engaged in a joint enterprise with others (including the OSMF) to do
> so and again almost certainly authorises it as well. So the
> distinction probably isn't very important.
>
>
>>
>>>
>>> Does that help?
>>
>> Yes that helps a lot.
>>
>
> I'm glad. I'm sorry I haven't had a chance to give this any serious
> thought, so all the above is rather impressionistic and off the top of
> my head. There are subtleties.
>
> I can't see any difficulty with contributing your own work to OSMF.
>
> --
> Francis Davey
>



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