[OSM-legal-talk] 'Contents'

[Francis Davey]

2011/5/8 Ed Avis <eda at waniasset.com>:
>
> If I understand you rightly, you're saying that the 'contents' referred to here
> is not meant to be something meaningful in the context of OSM, but rather a
> catch-all term for whatever a court might find to be 'database contents' in the
> future.
>

Hmmmm, maybe a little more explanation would help.

The ODbL takes a number of inputs defined by the licensor. One of them
is a specification of what the "database" being licensed under the
ODbL.

There is a constraint on that input, namely that it must be a
"database" as defined in the ODbL:

“Database” – A collection of material (the Contents) arranged in a
systematic or methodical way and individually accessible by electronic
or other means offered under the terms of this License.

(or the licensing would be meaningless or at best confusing). This
definition is close to the definition in Article 1 of the database
directive which is:

'database` shall mean a collection of independent works, data or other
materials arranged in a systematic or methodical way and individually
accessible by electronic or other means.

A court is almost certain to conclude that they are meant to mean the
same thing even though the wording is different.

The ODbL definition of "database" implicitly contains a definition of
"contents", namely the things that are arranged in a systematic etc
way. What the "contents" are will depend on the terms of OSMF's
licence, but I suspect that the definition of "database" will be in
computer science terms the OSM database described here:

http://wiki.openstreetmap.org/wiki/Database_schema

I'm not an OSM expert, so I've never read this before, but fortunately
its in a language (SQL) that I understand. If that is the "database"
then the "contents" (in ODbL terms) is almost certainly the material
contained in the rows (or individual fields) of the database, since
they can be individually accessed.

Some of this material is almost certainly not going to attract
copyright protection in any jurisdiction _even_ in the UK (which I
think is the slackest jurisdiction in the developed world in terms of
subsistence). Others clearly will, for example:

CREATE TABLE diary_entries (
    id bigint NOT NULL, --autoincrement primary key
    user_id bigint NOT NULL, -- references users(id)
    title character varying(255) NOT NULL,
    body text NOT NULL,
    created_at timestamp without time zone NOT NULL,
    updated_at timestamp without time zone NOT NULL,
    latitude double precision,
    longitude double precision,
    language_code character varying(255) DEFAULT 'en'::character
varying NOT NULL -- references languages(code)
);

contains a field "body" of type "text" which could contain (and
probably does contain in some cases) a literary work.

So, in the UK an entire table (and certainly the entire database),
considered as a table, would attract database right and one or two
forms of copyright (probably only the one, maybe none), but some of
the data in the database might attract its own copyright. That
copyright would not be licensed under ODbL which expressly does not
deal with the licence terms of the "contents" of the database.

So, if you want to licence people to be able to use the individual
bits of the database that themselves attract copyright protection (of
which there won't be many) then you need some other licensing scheme
for them.

Problem: what if I take a map and enter points on it into the OSM
database? Assume that that map-maker is happy with that and that it is
an OK thing to do. That map is a graphical/artistic work which will
almost certainly have its own copyright. One might loosely say that
the OSM database will "contain" that map after I have entered it - and
certainly there's an argument that OSMF would need to licence it (and
have the right to do so) when it displayed that part of the map.

However the map is not (as a map) "contents" of the database (in ODbL
terms) because it is not "individually accessible". Its unclear to me
whether ODbL does, or is intended, to licence that map's copyright as
part of the "database" somehow or not.

ODbL 2.2 says "Copyright. Any copyright or neighbouring rights in the
Database." which suggests only those rights that subsist in the
database _qua database_ and not any rights that might exist otherwise.

On the other hand it seems natural that the map be "Your Contents" as
understood by the contributor terms, because it is very much something
contributed  by the contributor who enters it.

My understanding is that geodata legal specialists have thought about
all this, but I'm not clear what conclusions they have come to.

> That seems a little bit dangerous since you can reasonably argue that almost
> everything in OSM is 'database contents', with the 'database' itself providing
> very little.  (Yes, even if you remember the difference between a database and
> a database management system.)  Once you start saying that the map can be divided
> into 'database' and 'contents', you naturally invite the question of where the
> dividing line is.  It might have been better not to muddy the waters in this way
> and just say that the whole thing - whether considered by law as database, as
> database contents, or anything else - is licensed under the ODbL.

Not possible. The ODbL expressly applies only to a database and not
the contents of a database (hopefully clear from what I have written).
The sorts of applications intended for the ODbL mean that it is
supposed to work that way I suspect.

>
> Otherwise (and I realize this is a far-fetched scenario, but no more outlandish
> than some of the others thrown about here) we run the risk of someone taking the
> whole OSM map data but then arguing in court that what they took is 'database
> contents' and therefore they are entitled to use it under the DbCL.

No. That's clearly not so.

-- 
Francis Davey