[OSM-legal-talk] Licensability of an employee's work
Simon Poole
simon at poole.ch
Sat Oct 19 09:50:13 UTC 2019
If it was outside of the UK it is very unlikely that the edits by the
employee would be considered anything protectable outside of them adding
a substantial extract of data from a database that is protected by EU
database regulation.
In the UK however I suppose there is a chance of the edits, assuming
they are not totally trivial, being a copyrightable work, which would
potentially require us to remove them if in the end they were not
available on terms that are compatible with the ODbL. If they don't
amount to that I don't see any recourse of the employer wrt the data
being in OSM.
That said, -don't use OSM behind the back of the employer-, get upfront
permission to use OSM.
Simon
Am 19.10.2019 um 10:12 schrieb Edward Bainton:
> Ah and perhaps we should distinguish between the employee whose
> manager says, "Put this into OSM" and the employee who thinks, "My
> employer doesn't care how I get the job done, so hang this proprietary
> GIS she's given me, my job is so much easier on OSM and she'll thank
> me for using it."
>
> On Sat, 19 Oct 2019 at 09:07, Edward Bainton <bainton.ete at gmail.com
> <mailto:bainton.ete at gmail.com>> wrote:
>
> Thank you both. To clarify, this is in the UK, where I am in
> discussion with two organisations.
>
> From a purely legal perspective, can I simply plough on trying to
> invest them in the usefulness of OSM on the basis that, if any
> employer became unhappy, their remedy is against their employee
> for signing the Contributor Agreement without authorisation - anIf
> it was d not against OSM, which can keep the data?
>
> In other words, if later becomes a problem, it's not OSM's problem.
>
> Obviously, good practice may dictate a less "not my problem"
> approach, but I'm trying to find the worst-case scenario before
> going further.
>
> On Sat, 19 Oct 2019 at 00:06, Kathleen Lu <kathleen.lu at mapbox.com
> <mailto:kathleen.lu at mapbox.com>> wrote:
>
> Jurisdiction dependant, but here are two general concepts
> which I think are relevant:
>
> As the statute you quoted specifies, when copyright will
> belong to the employer, it tends to depend on if the
> copyrightable work was made within the scope of the employee's
> job. (If you're a software programmer, it would be difficult
> for your employer to claim ownership a romance novel you
> write, but easier to claim ownership of code you write.)
>
> When an employee signs a contract, whether that contract is
> binding on the employer depends on whether the employee had
> authorization to sign on behalf of the employer, and sometimes
> whether it *seems* like to a reasonably objective person
> dealing with the employee whether the employee had authorization.
>
> These two principles would be in tension with each other in
> the case of an employer who claimed, on the one hand, that
> their employee's job was to edit OSM, but on the other hand,
> the employee did not have authorization to sign the
> Contributor Agreement, which would have been required for them
> to do their job.
>
> Thus, while it would be easy for an employer to claim
> ownership of such edits, I think it would be difficult for
> that same employer to also claim the Contributor Agreement
> does not apply.
>
> -Kathleen
>
>
> On Fri, Oct 18, 2019 at 3:04 PM Simon Poole <simon at poole.ch
> <mailto:simon at poole.ch>> wrote:
>
> The question is rather complicated and if at all can
> really only be approached on a per jurisdiction base as
> both employment regulation and certain aspects of
> intellectual property law differ widely by territory.
>
> So the 1st thing to clarify would be where this is taking
> place and which law is relevant.
>
> Simon
>
> Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton
> <bainton.ete at gmail.com <mailto:bainton.ete at gmail.com>>:
>
> Hi all
>
> Quick question arising from a 'lobbying' conversation:
>
> *If an employee edits the map in the course of their
> employment, has the work been adequately licensed to
> OSM/the big wide Open?*
>
> According to UK Copyright Act 1988,
> s. 11 (2) Where a literary, dramatic, musical or
> artistic work [F1
> <https://www.legislation.gov.uk/ukpga/1988/48/section/11#commentary-c13754611>,
> or a film,] is made by an employee in the course of
> his employment, his employer is the first owner of any
> copyright in the work subject to any agreement to the
> contrary.
>
> Can the employee be regarded, as far as OSM is
> concerned, as having authority to license the work? Or
> rather, which is what I take to be the more important
> question, if the employer became unhappy with OSM
> using their employee's edits, would her remedy be
> against OSM, or against her employee?
>
> Thanks!
>
>
> --
> Diese Nachricht wurde von meinem Android-Mobiltelefon mit
> Kaiten Mail gesendet.
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