[OSM-legal-talk] Brexit & EU database rights

Edward Bainton bainton.ete at gmail.com
Sun Dec 13 21:43:05 UTC 2020


Ok, so let me rephrase about 'moving the database'.

I mean moving the domicile of OSMF, as legal owner of the database. This is
being discussed. (See LWG minutes for September)

Does anyone have a clear idea what that would do for the protection of the
database as it currently stands? Would it be strengthened versus the
protection that covers the database at the moment (which is 15 years of UK
database right mimicking EU database right, under the Brexit 'withdrawal
agreement'. It seems the start-date of those 15 years is unclear).

Or does the current database not get any greater protection once the owner
is domiciled in the EU?

What does moving domicile to the EU do for the protection of the edits
added to the database after domicile has moved into the EU - are these
protected under the EU database rights or not? I feel this question reduces
to,
- are the edits a new database to which EU database rights attach?
- or are they insubstantial modifications of a database that came into the
EU without EU database rights attached, and therefore the new edits are not
covered by EU database right?

Are these questions clear?

(Not that OSMF can strictly *move* domicile: it will have to register a
subsidiary legal person in an EU country, move its intellectual property
into the subsidary, then possibly admit all current OSMF members as members
of the subsidary and close the parent (ie, close the current
London-registered OSMF. Or an equivalent process.)

On Sun, 13 Dec 2020 at 20:52, Simon Poole <simon at poole.ch> wrote:

>
> Am 13.12.2020 um 20:12 schrieb Tom Hummel via legal-talk:
> > Hi all,
> >
> > Am Sonntag, 13. Dezember 2020, 15:58:48 CET schrieb Simon Poole:
> >> The relevant bit of the directive is in article 11. As you can see the
> >> rights are dependent on being domiciled in the EU, not on the physical
> >> location of the "database". I would need to check up on the UK
> > Do the legal contributors have formed an opinion towards this, already?
> >
> > Seeing the Foundation being situated in the UK, and the absence of any
> agreement acc. to art. 11 III, it looks like the foundation is loosing its
> entitlement acc. to art. 11 II of the directive.
>
> This was the subject of the original message in this thread. The
> situation post December 31st 2020 is such that protection for sui
> generis databases will remain for database published before that date in
> the UK till the protection term runs out. In the case of OSM when the 15
> years start is naturally a bit fuzzy, but at least the reworking of the
> database in 2012 for the licence change was clearly a substantial change
> that required a significant investment by the OSMF, so it is reasonable
> to assume that protection will remain at least till September 2026 (IMHO
> there are more than enough arguments for December 2034, but I suspect
> that will be moot by 26).
>
> Simon
>
> >
> > German courts adhere to the „modified seat of management rule“ since
> 2002 (BGH NJW 2002, 3539), meaning some capacity to sue and be sued. OTOTH
> liability for associates is personal and unrestricted.
> >
> > For Germany, it looks like there is some entitlement on behalf of
> FOSSGIS. The governing agreement (OpenStreetMap Foundation Local Chapters
> Agreement) does not grant any derivative rights without additional
> agreement, § 7.1 Conduct.
> >
> > Am I missing something?
> >
> > Tom
> >
> >
> >
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>
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