[OSM-legal-talk] Some questions about using ODbL "Produced Work" maps in Wikipedia

[Paul Norman]

> From: Frederik Ramm [mailto:frederik at remote.org]
> Sent: Saturday, July 21, 2012 2:30 PM
> To: legal-talk at openstreetmap.org
> Subject: Re: [OSM-legal-talk] Some questions about using ODbL "Produced
> Work" maps in Wikipedia
> 
> Hi,
> 
> On 21.07.2012 21:33, Paul Norman wrote:
> > CC 4.0 licenses explicitly include database rights (sec. 1 (b) of
> draft 1).
> > How will this work when 4.0 is published and CC BY-SA tiles include
> > the database rights?
> 
> Also an interesting question but one that would probably have to be
> addressed to the CC people; there are likely many works that are
> currently licensed under CC-BY-SA but where the database rights are not
> included on purpose. I cannot imagine that all these should suddenly be
> "upgraded" to include database rights without the rights holders having
> further say. That would be, to continue my example, as if CC4 were to
> suddenly include all patent rights, no matter if those who licensed
> something *had* those rights to begin with ;)

I think it's important to distinguish between the case where someone
publishes another's ODbL work and doesn't have any special permissions and
OSMF publishing CC tiles where they clearly can grant database rights under
CC.

The only precedent I'm aware of is GPL v2 -> v3 with patents. The FSF has a
FAQ item about this at
http://www.gnu.org/licenses/gpl-faq.html#v2OrLaterPatentLicense

Clearly, if the OSMF publishes tiles under CC 4.0 it includes the DB rights
where DB rights apply.

The OSMF publishing CC <4 tiles is a more interesting case. An argument
similar to the implied license argument the FSF argues could apply here. I
think this argument would be particularly strong in the case of current CC
2.0 tiles where without an implied license you couldn't carry out what CC
2.0 allows you to do where DB rights exist. In fact, accepting the argument
that has been made that CC 2.0 doesn't give you the necessary permissions
where DB rights exist, it is the only way under which OSM would be usable
right now, so I expect that the courts would be likely to accept that there
is an implied license.

It would also be strong for any CC <4 tiles published after CC 4 is
released. There the OSMF would be publishing under a license knowing that
the terms allow you to change to a license that includes DB rights. To avoid
this OSMF would need to stop publishing CC tiles, with the possible
exception of CC BY-ND which does not allow derivatives.

None of this analysis for the OSMF depends on the ODbL. 

For someone other than the OSMF, the analysis now depends on the ODbL and
exactly what it grants, particularly around any implied licenses. It may be
that the ODbL does not grant sufficient permissions in which case no one
should use CC licenses for works derived from ODbL works.

Of course, if you're publishing in one of the many parts of the world
without DB rights this is a moot point - it's all copyright and no one can
stop you from publishing because of DB rights since they don't exist. If
ODbL gives you the permission to publish as, say, CC BY, then you can take
those tiles and do whatever you want, so long as you preserve attribution.

> If CC4 comes out with such indiscrimante inclusion of database rights
> then my guess is that it will either be automatically impossible to
> licene Produced Works under CC, or we will have to explicitly disallow
> it.

I'm not sure who you mean by we in that statement. If ODbL allowed produced
works under CC4 the only people who could disallow it would be ODC with a
license upgrade. OSMF couldn't stop produced works under CC4 licenses.

And I find some irony in getting involved into the intersection of copyright
laws and other laws which apply more to "information" when I am doing the
same at work, although not with DB rights.