[OSM-legal-talk] [talk-au] Statement from nearmap.com regarding submission of derived works from PhotoMaps to OpenStreetMap

[Francis Davey]

2011/6/18 John Smith <deltafoxtrot256 at gmail.com>:
>
> The problem is this, ODBL is very complicated, much more so than a
> simple copyright license.
>
> In light of that, I'm trying establish if produced work (eg tiles) can
> really be distributed under a non-ODBL contract.

OK. So what I mean by "some of the questions don't make sense" is
exactly this. I'm afraid you and lots of others who ask questions use
a lot of short-hand (lawyers sometimes do this too). The problem is
then I don't know what assumptions are built into that short-hand and
what exactly you are trying to say.

In this case obviously a tile _can_ be distributed under any licence
you like. Are you in fact asking: (1) assume that OSM is licensed
under ODbL; (2) assume that someone distributes a tile or tiles from
OSM; (3) assume also that someone licenses or contracts for the use of
that tile under some other licence or agreement; (4) would that be an
infringement of the ODbL by that someone?

Is that what you are asking? I.e. are the tiles you talk about meant
to be licensed by OSM under ODbL and by "can" do you mean "without
infringing the ODbL"?

Now I don't know what OSMF's licence will look like, OSM is still made
available under CC-BY-SA (version 2.0 in France). So if you mean to
ask that question, I'm not quite sure what the answer is because I
don't know quite what the shape of the licence might be.

But just looking at the ODbL. If the OSM were released under the ODbL then:

(1) Making a tile doesn't infringe on the database right in the ODbL
(since making a work from information in a database isn't one of the
cats protected by database right).

(2) In so far as the database is protected by copyright (see my
examples above) then making a tile probably amounts to an infringement
of that coypright (in the EU certainly, at least on the authority of
Infopaq) and so can only be done under licence.

(3) ODbL appears to give that licence, but on the conditions set out in ODbL.

(4) Use of that tile in any jurisdiction that accepts that the tile
infringes on copyright in the OSM database (which seems likely in most
places since clearly intellectually creative effort has gone into
putting together that database - there might be controversy as to the
substantiality of the tile, but I think in old common law
jurisdictions it would be found to be infringed). So, the user would
need a licence to use it, that licence would only be valid if the
licensor had a right to grant it.

(5) Obviously if copyright and database right are not infringed in a
target jurisdiction then there is no infringement by a down-stream
user, but that user may be liable for some form of tortious
interference or its equivalent in some circumstances, on the
assumption that ODbL prohibited the original distributor from doing
what they did.

So, I'm afraid that's not clear enough for you probably because there
are too many variables (what are the source and target jurisdictions,
what licence is being used by OSMF etc) but hopefully you can see the
broad range of issues.

>
> If PD tiles are distributed, outside the EU, it is my belief that
> those tiles can be derived from, which makes for a pretty big loop
> hole.

Again, I'm not sure what you mean precisely but maybe this will help.

If A has a database and releases it under ODbL in the EU. B takes the
database and releases it in the USA under a public domain licence. Let
us assume that the database has no copyright (on the lines of the
database in Feist). C receives the database released by B in the USA
and uses it in the USA in a way that would not be permitted by A.

What then?

A cannot sue C for infringement of copyright or database right
because, we have assumed, neither exists. A may well be able to sue B
for releasing PD but let us assume B is a straw person and not worth
suing, that will get us nowhere. In some circumstances A may be able
to claim that C is guilty of a tortious infringement, but that would
require more than just using the database (the elements of these
things vary across jurisdictions, but there might have to be an
intention to harm A, or that B breaks its contract with A or the
equivalent). In most circumstances A can do nothing to C.

If C then brings the database back into the EU of course A can now
pursue them for infringement of database right.

So, ODbL doesn't do the whole job. It can't stop someone laundering
the database into a country without database right. That is a well
known problem and not one that can be fixed by changing the licence.
Its inherent in the difference between IP laws.

If that's what concerns you, its a known bug as it were.

Tiles are clearly *maps* and so protected as artistic works under
article 2(1) of the Berne Convention and therefore (one hopes) in
every country which is a signatory to Berne which includes the US and
the EU. What you can do with tiles will depend on how OSMF chooses to
licence the OSM.

-- 
Francis Davey