[talk-au] Fwd: [OSM-legal-talk] ODbL License + Outline Procedure

[Ian Sergeant]

James Livingston <doctau at mac.com> wrote on 03/03/2009 12:46:58 PM:

> Copying someone's beautifully drawn map of Sydney is obviously not
> allowed. However the location of the Sydney Opera House is a fact and
> so not copyrightable, and the location and name of Paramatta Road, and
> so on. While I can't copy the map as-is, can I create my own map
> getting the location and name of everything from the original map?

You probably can't do that.  Australian courts, most famously in Telstra
Corporation Ltd v Desktop Marketing Systems Pty Ltd, have held that
collections of facts have originality copyright can subsist in them.

There is little doubt it my mind, that if you took a street directory,
transcribed all the facts and locations, and constructed another street
directory that you would be in breach of copyright, even in the new map had
a different creative design.

> Some countries (including Australia, I think) have something calls a
> "database right" which means that a collection of facts can be
> copyright-able even though individually they can't. The usual example
> where this is used (and I believe what the first Australian court case
> related to this is about) is phone books. The fact that person X lives
> at a certain address and has a certain phone number is an un-
> copyrightable fact, but are you allowed to produce a copy of the phone
> book?

Australia does not have database right, and the phone book case (above) was
concerned with copyright, and not database right.  Database right does
exist in the UK, where the database is hosted though.  Determining
jurisdiction would be interesting, but I would suggest that both UK courts
and Australian courts would claim some link.

> Back to OSM, what we have is pretty much just a collection of
> geospatial facts (locations, names, etc). In countries that don't have
> a database copyright, what stops someone from just copying the whole
> database?

US courts have held that the phone book is just a collection of facts, and
cannot be copyrighted.  Where there is no copyright law, or database right
law, the ODbL depends on contract law.  There are a number of issues with
that, not least of which is the issue of privity, and whether you could
ever sue the end user of the data, but I'll leave others to discuss the
issues.  Ultimately, you can try copyright, database right, and contract,
but in some jurisdictions is might have to be accepted that you can't
really effectively protect a database of facts such as OSM, and still allow
the freedoms that are desirable.

Ian.