[geo-discuss] copyright not applicable to geodata?

Mon Apr 2 09:35:29 UTC 2007

Richard Fairhurst wrote:
> Rufus Pollock wrote:
> 
>> Thus the simple message to the openstreetmap and other list should be:
>> stop worrying and keep licensing.
> 
> Mmm, but I'm not convinced there's nothing for us to worry about.
> 
> OSM is licensed as CC-BY-SA 2.0, which expressly defines the "Work" as 
> "the copyrightable work of authorship offered under the terms of this 
> License" (1e). Now it looks like OSM, and other geodata, may not be 
> copyrightable - it's database-rightable (sorry, that's not a word). At 
> this point the applicability of the licence starts to look a little 
> shaky, because we aren't using CC-Netherlands/Belgium.

In the EU at least there is both copyright and the sui-generis right 
though with some restrictions on when you can use the copyright (old 
common-law jurisdictions and many others allowed copyright in simple 
data no matter how 'unoriginal'). Specifically here is the quote from 
Cornish and Llewelyn, *Intellectual Property* 5th Edition (one of the 
standard treatises) paras 19-37 and following:

(i) Copyright in the Compilation. ... First, it [the DB directive] 
defines what is meant by a "database": "a collection of independent 
works, data or other materials arranged ina  systematic or methodical 
way and individually accessible by electronic or other means." [DB Dir 
Art 3] Then it allows copyright in a database (as distinct from its 
contents), but only on the basis of authorship involving involving 
personal intellectual creativity. This is a new limitation, so far as 
common law countries are concerned, and one which must presage a raising 
of the standard or originality throughout British Copyright law. 
Intellectual judgment which is in some sense the author's own must go 
either into choosing contents or into the method of arrangement. The 
selective dictionary will doubtless be a clearer case than the 
classificatory telephone directory but each may have some hope; the 
merely comprehensive will be precluded -- that is the silliness of the 
whole construct.

...

(ii) Database right. In addition there is a separate sui generis right 
given to the maker of a database (the investing initiator) against 
extraction or reutilisation of the database. Four essential points may 
be highlighted:

   (1) The right applies to databases whether or not their arrangement 
justifies copyright and whatever position may be regarding copyright in 
individual items in its contents.

   ...

> I do agree with your point on the SPARC-OpenData list about the "social 
> contract", but unfortunately if someone exploits it _despite_ that, the 
> result is either big fat legal fees or an unenforced licence.

I agree, and the social contract point was a secondary one.

> We (OSM) are asking lawyers about this.

That is great to hear and let me know what the result is. Even if the 
current CC license is insufficient it should only be a small mod to make 
it sufficient. On this point, I don't know whether you recall but two 
years after the original open geodata forum Giles Lane instigated work 
on modifying the CC licenses specicifically for use with geodata:

   http://lists.okfn.org/pipermail/geo-discuss/2005-April/000012.html

The effort rather ran out of steam due to a perceived lack of immediate 
need for it. Details, plus link to last version of the license are on: 
http://www.okfn.org/geo/access.html#license.

~rufus