[OSM-legal-talk] legal-talk Digest, Vol 106, Issue 5

Richard Best richard at besthancock.com
Mon Aug 31 02:56:52 UTC 2015


Hi all

I've done large volumes of legal work in New Zealand relating to, among
other things, the New Zealand Government Open Access and Licensing
framework (NZGOAL) as well as OpenStreetMap. That work has involved
detailed examination of the Creative Commons licences as well as the ODbL
under which OSM data is licensed. I'll make a few comments that I hope
contribute to the discussion here.

CC-BY DOES NOT AUTHORISE SUB-LICENSING BUT OSM CONTRIBUTOR AGREEMENT
REQUIRES IT

For OSMF to be able to license OSM as it does, it needs incoming rights
from contributors. It obtains these rights by requiring contributors, when
they sign up to be contributors, to agree to a set of "contributor terms".
Acceptance of these terms forms a contract (referred to as a "contributor
agreement") between each contributor and OSMF.

The contributor agreement states that, when a person contributes data or
any other content (Contents) to OSM:

(a)       the person is indicating that, as far as the person knows, the
person has the right to authorise OSMF to use and distribute the Contents
under OSMF's current licence terms (clause 1(a));
(b)       the person grants:

"... to OSMF a worldwide, royalty-free, non-exclusive, perpetual,
irrevocable licence to do any act that is restricted by copyright, database
right or any related right over anything within the Contents, whether in
the original medium or any other. These rights explicitly include
commercial use, and do not exclude any field of endeavour. These rights
include, without limitation, the right to sub-license the work through
multiple tiers of sub-licensees and to sue for any copyright violation
directly connected with OSMF's rights under these terms. To the extent
allowable under applicable local laws and copyright conventions, You also
waive and/or agree not to assert against OSMF or its licensees any moral
rights that You may have in the Contents" (clause 2); and

(c)       "OSMF agrees that it may only use or sub-license Your Contents as
part of a database and only under the terms of one or more of the following
licences: ODbL 1.0 for the database and DbCL 1.0 for the individual
contents of the database; CC-BY-SA 2.0; or such other free and open licence
... as may from time to time be chosen by a vote of the OSMF membership and
approved by at least a 2/3 majority vote of active contributors" (clause 3).

In plain English, each contributor is allowing OSMF to use the contributed
Contents for any purpose, including commercial purposes and including OSMF
allowing others to use the contributed Contents, as long as OSMF's use is
as part of a database and its sub-licensing uses the specified licences.

Turning to CC-BY, like all CC licences, it prohibits sub-licensing. But
that's exactly what the contributor agreement requires (see quoted excerpt
above). This means one cannot simply take CC-BY licensed VicMap data and
absorb it into OSM. To do that one would need the express permission of the
Victorian State Government.

Simply attributing the Victorian State Government, as Stephan Knauss has
suggested, would not be sufficient. I also don't agree with Alex Barth's
view that "[y]ou don't need DELWP to give you any ... permission in order
to import their data to OpenStreetMap". You do. Steve Bennett is correct
when he says "when you import data into OSM, you assign special permission
to the OSMF to re-license the data under ODbL, so you need more than just
CC-BY licensing to begin with". To be clear, the terms of CC-BY are not
"clearly compatible with an import in[to] OSM".

NEW ZEALAND PRECEDENT

Perhaps helpfully, there is a New Zealand Government precedent for the
situation you're facing here. Land Information New Zealand licenses a wide
range of geospatial data under CC-BY licences. However, it has also allowed
data to be made available on OSM under the ODbL. See here for details:
http://wiki.openstreetmap.org/wiki/LINZ

CC0

I wouldn't rate your chances of the Victorian State Government releasing
its data under CC0. In addition to CC-BY being the primary preferred
licence for open government licensing in Australia, there are probably
legal complications in Australia relating to the use of CC0. In addition,
if the Victorian State Government was to use it, there would be little if
no further need for CC-BY.

CC-BY vs ODbL

I agree with the Victorian State Government that ODbL isn't as open as
CC-BY. They are clearly right on this point.

SUGGESTION

I suggest you draw the Victorian State Government's attention to the
approach taken by Land Information in New Zealand, with a view to asking
the Victorian State Government to take the same approach. I completely
understand their position of not wanting to "get into creating one-off
variations for every potential user with a preference" but I think it's
important to appreciate that we're talking here about a global project
which has decided on the ODbL, that it would be extremely difficult to
change the current regime to another one and that there is no real downside
to the Victorian State Government dual-licensing its data, once under CC-BY
and separately under the ODbL (or, actually, allowing OSMF to license under
the ODbL). It's perfectly entitled to do that and people who want to use
the data directly from the Victorian State Government's site under CC-BY
can always do so. Most significantly, dual-licensing under CC-BY (via a
government site) and the ODbL (via OSM) allows the data to be used in a
wider range of contexts and for it to be mashed up with other rich datasets
already in OSM or that may be added to OSM in the future. Allowing this
could result in cultural, environmental, economic or social benefits for
Australians. This is all entirely consistent with the rationale for open
licensing in the first place.

This isn't legal advice, but I hope it helps.

Richard Best
Principal
Richard Best Law

On Mon, Aug 31, 2015 at 1:54 PM, <legal-talk-request at openstreetmap.org>
wrote:

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> Today's Topics:
>
>    1. Any expert CC-BY -> ODbL negotiators? (Steve Bennett)
>    2. Re: Any expert CC-BY -> ODbL negotiators? (Stephan Knauss)
>    3. Re: Any expert CC-BY -> ODbL negotiators? (Alex Barth)
>    4. Re: Any expert CC-BY -> ODbL negotiators? (Steve Bennett)
>    5. Re: Any expert CC-BY -> ODbL negotiators? (Alex Barth)
>    6. Re: Any expert CC-BY -> ODbL negotiators? (Paul Norman)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Mon, 31 Aug 2015 01:14:09 +1000
> From: Steve Bennett <stevagewp at gmail.com>
> To: "Licensing and other legal discussions."
>         <legal-talk at openstreetmap.org>
> Subject: [OSM-legal-talk] Any expert CC-BY -> ODbL negotiators?
> Message-ID:
>         <CA+z=q=
> sxz6MaYgUDpHxNuPDfKQ+tX7vx8WL50Wy_2zWTGyRAPQ at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Hi all,
>   I've been trying to convince the state government of Victoria (southeast
> Australia) to allow their VicMap raw data to be imported into OSM. It's
> currently CC-BY, and they've told me they're happy in principle for it to
> be used this way, but they're uncomfortable making the recommended
> statement "DELWP has no objections to geodata derived in part from Vicmap,
> either traced from Vicmap map products, or directly from spatial extracts,
> being incorporated into the OpenStreetMap project geodata database and
> released under a free and open license".
>
> Specifically, they don't think ODbL is as "free and open" as CC-BY, and
> they don't particularly want to make a one-off statement for OSM.
>
> >The only other requirement is not to apply legal terms or technological
> measures that legally restrict others from doing anything the license
> permits. If the ODbL is more restrictive than our CC by Attribution this
> presents a problem for OSM, not for us. My initial response is that we
> wouldn't want OSM to apply a more restrictive license than ours, and in
> respect of the statement Steve wants us to provide, DELWP doesn't want to
> get into creating one-off variations for every potential user with a
> preference - Google, HERE, etc.
> ...
>
> >We believe the CC by Attribution appropriate to sufficiently and equitably
> provide our data to all/anyone, and if Steve is concerned he should take it
> up with OSM. I'll refer it to Legal (not ours, DataVic's) if he wants to
> pursue it further.
>
>
> It's all getting quite subtle and possibly out of my depth. I'm not sure if
> the concern is a misunderstanding about the implications of dual licensing,
> a philosophical objection to "free" licences that impose share-alike
> restrictions like ODbL, or something different.
>
> I wonder if there are any expert licence negotiators here who might be able
> to get involved in the discussion.
>
> Thanks very much,
> Steve
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> ------------------------------
>
> Message: 2
> Date: Sun, 30 Aug 2015 20:33:05 +0200
> From: Stephan Knauss <osm at stephans-server.de>
> To: legal-talk at openstreetmap.org
> Subject: Re: [OSM-legal-talk] Any expert CC-BY -> ODbL negotiators?
> Message-ID: <55E34C61.1030009 at stephans-server.de>
> Content-Type: text/plain; charset=utf-8; format=flowed
>
> Hello Steve,
>
> On 30.08.2015 17:14, Steve Bennett wrote:
> > I wonder if there are any expert licence negotiators here who might be
> > able to get involved in the discussion.
>
> I'm no such expert, but they just require attribution. Did they state
> any specific way of doing so? If not, then maybe just mentioning in the
> wiki is fine for them?
>
> http://wiki.openstreetmap.org/wiki/Contributors
>
> Stephan
>
>
>
>
> ------------------------------
>
> Message: 3
> Date: Sun, 30 Aug 2015 20:41:22 -0400
> From: Alex Barth <alex at mapbox.com>
> To: "Licensing and other legal discussions."
>         <legal-talk at openstreetmap.org>
> Subject: Re: [OSM-legal-talk] Any expert CC-BY -> ODbL negotiators?
> Message-ID:
>         <CABxUzDvJODNtXah7sfAQqEpzc4rFf7KWN=
> b0XKqKDuh9N2hXKA at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> On Sun, Aug 30, 2015 at 2:33 PM, Stephan Knauss <osm at stephans-server.de>
> wrote:
>
> > Hello Steve,
> >
> > On 30.08.2015 17:14, Steve Bennett wrote:
> >
> >> I wonder if there are any expert licence negotiators here who might be
> >> able to get involved in the discussion.
> >>
> >
> > I'm no such expert, but they just require attribution. Did they state any
> > specific way of doing so? If not, then maybe just mentioning in the wiki
> is
> > fine for them?
> >
> > http://wiki.openstreetmap.org/wiki/Contributors
> >
> >
> Right. You don't need DELWP to give you any statement or permission in
> order to import their data to OpenStreetMap or derive data  for
> OpenStreetMap from their data.
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> ------------------------------
>
> Message: 4
> Date: Mon, 31 Aug 2015 11:04:48 +1000
> From: Steve Bennett <stevagewp at gmail.com>
> To: "Licensing and other legal discussions."
>         <legal-talk at openstreetmap.org>
> Subject: Re: [OSM-legal-talk] Any expert CC-BY -> ODbL negotiators?
> Message-ID:
>         <CA+z=q=
> tmtT6Tx_i0j8w0-0zvsvajzs-JS3455c70iPsJR4mrXQ at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> Huh. Really? Did I completely misunderstand this?
> http://wiki.openstreetmap.org/wiki/Import/GettingPermission
>
> My understanding was that when you import data into OSM, you assign special
> permission to the OSMF to re-license the data under ODbL, so you need more
> than just CC-BY licensing to begin with. Did something change, or have I
> just been mistaken for a long time?
>
> Steve
>
> On Mon, Aug 31, 2015 at 10:41 AM, Alex Barth <alex at mapbox.com> wrote:
>
> >
> > On Sun, Aug 30, 2015 at 2:33 PM, Stephan Knauss <osm at stephans-server.de>
> > wrote:
> >
> >> Hello Steve,
> >>
> >> On 30.08.2015 17:14, Steve Bennett wrote:
> >>
> >>> I wonder if there are any expert licence negotiators here who might be
> >>> able to get involved in the discussion.
> >>>
> >>
> >> I'm no such expert, but they just require attribution. Did they state
> any
> >> specific way of doing so? If not, then maybe just mentioning in the
> wiki is
> >> fine for them?
> >>
> >> http://wiki.openstreetmap.org/wiki/Contributors
> >>
> >>
> > Right. You don't need DELWP to give you any statement or permission in
> > order to import their data to OpenStreetMap or derive data  for
> > OpenStreetMap from their data.
> >
> >
> >
> > _______________________________________________
> > legal-talk mailing list
> > legal-talk at openstreetmap.org
> > https://lists.openstreetmap.org/listinfo/legal-talk
> >
> >
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>
> ------------------------------
>
> Message: 5
> Date: Sun, 30 Aug 2015 21:38:15 -0400
> From: Alex Barth <alex at mapbox.com>
> To: "Licensing and other legal discussions."
>         <legal-talk at openstreetmap.org>
> Subject: Re: [OSM-legal-talk] Any expert CC-BY -> ODbL negotiators?
> Message-ID:
>         <CABxUzDsAR-gxd5Vbop9e=n=
> qD9DUgePxMDP_bCYXFda9TLeyYA at mail.gmail.com>
> Content-Type: text/plain; charset="utf-8"
>
> On Sun, Aug 30, 2015 at 9:04 PM, Steve Bennett <stevagewp at gmail.com>
> wrote:
>
> > My understanding was that when you import data into OSM, you assign
> > special permission to the OSMF to re-license the data under ODbL, so you
> > need more than just CC-BY licensing to begin with. Did something change,
> or
> > have I just been mistaken for a long time?
>
>
> Not quite, you only need special permission if terms aren't clearly
> compatible with an import in OSM:
>
> > Sometimes the exact terms under which data can used is unclear and
> clarification is needed.
>
> http://wiki.openstreetmap.org/wiki/Import/GettingPermission
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> ------------------------------
>
> Message: 6
> Date: Sun, 30 Aug 2015 18:54:00 -0700
> From: Paul Norman <penorman at mac.com>
> To: "Licensing and other legal discussions."
>         <legal-talk at openstreetmap.org>
> Subject: Re: [OSM-legal-talk] Any expert CC-BY -> ODbL negotiators?
> Message-ID: <fbdaa8f3-886d-4766-8893-6146d0f51678 at mac.com>
> Content-Type: text/plain; charset=utf-8
>
> The problem is that they have specified a license with attribution that is
> unreasonable for geodata (CC BY 3.0 and earlier).
>
> Neither OpenStreetMap.org or most data consumers (e.g. MapBox) would meet
> the CC BY 3.0 and earlier attribution requirements.
>
> There are a few options for permission. The easiest might be to get them
> to grant permission to everyone under the CC0 license. This would meet the
> needs of us, as well as anyone else who would want to use their data
>
> Another option is to educate them about data licenses. I'd only go this
> route if you can't get the data under CC0. They've talked about concern
> about their data being used under less-free license. Leaving aside what
> less-free means, a feature of attribution only licenses like CC BY is that
> you are allowed to do this.
>
> On Aug 30, 2015 5:41 PM, Alex Barth <alex at mapbox.com> wrote:
> >
> >
> > On Sun, Aug 30, 2015 at 2:33 PM, Stephan Knauss <osm at stephans-server.de>
> wrote:
> >>
> >> Hello Steve,
> >>
> >> On 30.08.2015 17:14, Steve Bennett wrote:
> >>>
> >>> I wonder if there are any expert licence negotiators here who might be
> >>> able to get involved in the discussion.
> >>
> >>
> >> I'm no such expert, but they just require attribution. Did they state
> any specific way of doing so? If not, then maybe just mentioning in the
> wiki is fine for them?
> >>
> >> http://wiki.openstreetmap.org/wiki/Contributors
> >>
> >
> > Right. You don't need DELWP to give you any statement or permission in
> order to import their data to OpenStreetMap or derive data  for
> OpenStreetMap from their data.
> >
> >
>
> ------------------------------
>
> Subject: Digest Footer
>
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> ------------------------------
>
> End of legal-talk Digest, Vol 106, Issue 5
> ******************************************
>



-- 
*Richard Best*
Principal
Richard Best Law


Mobile: 021 927 291
Email: richard at besthancock.com
Web: www.besthancock.com
Level 8, 23 Waring Taylor Street, Wellington 6011

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