[odc-discuss] Fwd: [OSM-legal-talk] LWN article on license change and Creative Commons

[Rufus Pollock]

On 24 January 2011 16:39, Jonathan Rochkind <rochkind at jhu.edu> wrote:
> On 1/23/2011 1:32 AM, Mike Linksvayer wrote:
>>
>>
>>  The issue is whether the instrument in question grants permissions which
>> can be thought of as carve outs from copyright and related restrictions, or
>> whether the instrument also attempts to create new restrictions which are
>> not present by default. I assume the latter extremely dangerous until proven
>> otherwise -- exceptions and limitations ought be increased, not diminished.
>> Any public license that attempts to work around limitations had better have
>> a truly massive and clear win for doing so.
>
> I think you're absolutely right here -- but the problem with 'data' is that
> in general it is NOT covered by copyright (or, in general, any other IP) in
> the U.S.  So there is no way to 'carve out exceptions' from existing
> protections -- there are no existing protections. The only way to make
> restrictions is create new ones which are not present by default.

Jonathan: you've got to be careful here. The US does provide for
various kinds of 'protection' in relation to collections of data
(termed a 'database' -- by definition -- in ODC licenses) -- of course
this protection varies (and e.g. a plain telephone book may not
receive protection) but such protection can exist.

Furthermore no jurisdiction (i know of) provides monopoly protection
in the form of IP rights for individual 'data' facts (e.g. London is
long/lat x/y). It is the variety of meanings of the term 'data -- from
individual (or small number) of items to large collections -- that
makes using the simple 'data' in these discussions very confusing and
why using the term database (for the collection) is probably a good
idea.

> This recognition, combined with an agreement with your analysis that it's
> very dangerous to try and do this -- is one of the major factors which led
> so many entities looking at this before to arrive at the "public domain"
> solution.

Maybe but I don't really see why this necessarily leads to a PD
solution (one can advocate a PD solution for many other reasons
though).

> There will be no way to apply a copyright-with-license solution to "open
> access with restrictions" for data(bases) in the U.S. in the general case,
> because in the U.S. in the general case, according to current law,
> data(bases) are not covered by copyright. (Unless the contents of the

I don't believe this is correct as an analysis of the law in the US,
at least as I understand it (and IANAL etc :) ), see:

<http://www.opendefinition.org/guide/data/#us>

There is particularly good overview of the case law here:

<http://carrollogos.blogspot.com/2009/02/copyright-in-databases.html>

Summary: yes the US does limit protection for databases in the wake of
Feist but depending on the originality, structure etc the DB may get
protection (see, as a clear example Red Book decision on a listing of
used car prices).

If there are any other experts out there with knowledge of relevant
case-law please send it along (it can also get incorporated in that
guide).

> database are copyrightable 'content', in which case existing CC licenses are
> perfectly sufficient and there's no need for anything else -- the different
> legal status of 'data' in general vs 'content' is exactly why we're having
> this discussion). Of course, current law could change -- but we probably
> don't want to be pushing for a legal change that takes more data(bases)
> _out_ of the commons they are already in in the US, by applying IP controls
> to them!  That's not what "our side" roots for.

I think we should be a bit cautious about drawing the exact lessons of
the affect of DB rights on the commons.

I remember talking at some length with a world-renowned expert of DB
'protection' and asking why the US did not have a DB law (after all,
sad to say it, most of the time when big holders of info get together
to get more rights they get them ...). His response was that most of
the people with valuable DBs already could get sufficient protection
via access control mechanisms etc and hence didn't see a lot of value
in an explicit DB right -- I also note there are lots of people in the
US making and selling non-open dbs, from geodata to legal decisions,
from chemistry to restaurants.

Rufus