[OSM-legal-talk] local copyright law on government data and OSM license

[Eugene Alvin Villar]

Hi Kathleen, all,

Just as a bit of reference, the original intellectual property law from
1924, back when the Philippines was a territory of the United States,
didn't have this commercial-with-prior-approval second sentence and was
basically modeled after the U.S. law (government works are fully in the
public domain). This additional sentence was added in 1972 and was retained
in the present law of 1997. Previous analysis of the current law by
Wikimedia volunteers with respect to copyright can be seen here and which
concludes that this second sentence is some sort of additional
non-copyright-based government right:
https://commons.wikimedia.org/wiki/Commons:Deletion_requests/Template:PD-PhilippineGov

This situation actually raises a lot of questions especially in the context
of OSM. For instance, if a government agency published a dataset of
polygons of places, it would probably be best to get the agency's prior
approval to import such dataset in order to waive the requirement of "prior
approval [...] for exploitation of such work for profit" because end users
of OSM should not have to ask the agency for approval if they want to use
the data that was included in OSM for profit.

On the other hand, if an OSM mapper *derives* new data from such a dataset
(for example, generating a representative point for each polygon, maybe at
the centroid, or maybe at at the "admin centre" if the polygon represents
settlements and the mapper used their best judgement and research to place
such points), then this new dataset is no longer the same as the government
dataset. If the OSM mapper added the new derived data to OSM, then one
could perhaps argue that prior approval from the government agency is no
longer needed because the very act of mapping in OSM is not "for
exploitation of such work for profit". And furthermore, end users of OSM
would also perhaps not need to seek "prior approval" as well since they are
not exploiting the original government dataset but rather a derived dataset
(ex., points), and which cannot be used to reverse engineer the original
government dataset (ex., polygons).

Regards,
Eugene



On Thu, Jul 16, 2020 at 10:57 AM Kathleen Lu via legal-talk <
legal-talk at openstreetmap.org> wrote:

> A few thoughts:
>
> I'd want to talk to a Philippine lawyer, because frankly, these two
> sentences seem to contradict each other:
> *No copyright shall subsist in any work of the Government of the
> Philippines. However, prior approval of the government agency or office
> wherein the work is created shall be necessary for exploitation of such
> work for profit*
>
> What would be the consequences of not getting permission? A violation of
> the government's non-copyright rights? Rights of what? I didn't think the
> Philippines had database rights, but there could well be some other
> non-copyright law.
>
> Looking online, I found this on the National Mapping authority's website:
> Can I edit and use the NAMRIA maps for business? Article III of NAMRIA
> Memorandum of Agreement (MOA) states that "the second party shall use the
> digital data acquired from NAMRIA only for its own authorized purpose and
> not for commercial purpose. If digital is sold to other parties, the Second
> Party shall pay the full cost of the digital data and its royalties". This
> applies only to digital maps (scanned/vector) purchased from NAMRIA.
> http://www.namria.gov.ph/faq.aspx
>
> So one question I would have is whether the data source in question is
> digital data acquired from NAMRIA?
>
> I also found this list
> http://www.geoportal.gov.ph/resources/PGPDataInventorywithSW&Trng.pdf
> which seems to indicate that at least some government geodata has no
> restrictions on it. With respect to at least those datasets, it would seem
> that *explicit permission with respect to OSM* is unnecessary. I didn't see
> a source for the letters mentioned in this list, but it's possible that
> some of the data restrictions would not be a problem for OSM, but they'd
> have to be examined on a letter by letter basis.
>
> Best,
> -Kathleen
>
>
> On Wed, Jul 15, 2020 at 6:17 PM Erwin Olario <govvin at gmail.com> wrote:
>
>> Recently, some edits in the country came to the  attention of the
>> community and have been found to be derived from government data.
>> Volunteers in the community, after advising the DWG of the process and
>> action plan, are undertaking the rollback of affected edits.
>>
>> In our community, the current practice follows the general
>> recommendation, that  no (Philippine government) data should be added into
>> OpenStreetMap, unless explicit permission has been obtained from the
>> originating agency/office/owners that the data will be added in OSM, under
>> ODbL.
>>
>> The relevant local law on government data, states Republic Act 8293
>> <https://www.officialgazette.gov.ph/1997/06/06/republic-act-no-8293/>,
>> section 176:
>> "*Works of the Government. ‑ 176.1. No copyright shall subsist in any
>> work of the Government of the Philippines. However, prior approval of the
>> government agency or office wherein the work is created shall be necessary
>> for exploitation of such work for profit. Such agency or office may, among
>> other things, impose as a condition the payment of royalties. No prior
>> approval or conditions shall be required for the use for any purpose of
>> statutes, rules and regulations, and speeches, lectures, sermons,
>> addresses, and dissertations, pronounced, read or rendered in courts of
>> justice, before administrative agencies, in deliberative assemblies and in
>> meetings of public character. (Sec. 9, first par., P.D. No. 49)"*
>>
>> In the discussions by contributors, there are some who expressed favor a
>> more liberal interpretation of this section of the law, that government
>> data is ineligible to copyright, hence no permission is necessary from the
>> government. And if the end-user has commercial plans for said data, it is
>> up to them to apply for said permission from the relevant government
>> agencies.
>>
>> However, this government permission requirement appears to oppose the OSM
>> license, wherein OSM data users are only required to attribute, and not
>> seek any additional permissions. Hence, our promoted practice of seeking
>> the informed consent of data owners.
>>
>> While the interpretation of the law is not a question of popularity,
>> there's no doubt that a more liberal interpretation is desirable for our
>> community but I'm wondering if somebody from the licensing WG can provide
>> us specific guidance whether a liberal interpretation of this law is
>> aligned with the OSM license.
>>
>> /Erwin
>>
>>
>> - - - - - - - - - - - - - - - - - - -
>> » email: erwin@ <erwin at ngnuity.net>*n**gnu**it**y**.xyz*
>> <http://ngnuity.net/> | govvin at gmail.com
>> » mobile: https://t.me/GOwin
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>> D56B
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