[odc-discuss] Fwd: Does ODC by v1.0 contain a share-alike clause?

Fri Jun 24 19:08:45 UTC 2011

Forwarding what accidentally went offlist back onlist.

Apologies.

Thanks

Jordan

Begin forwarded message:

> From: Jordan S Hatcher <jordan at opencontentlawyer.com>
> Date: 14 June 2011 21:38:53 GMT+01:00
> To: "Brehm, Elke" <Elke.Brehm at tib.uni-hannover.de>
> Subject: Re: [odc-discuss] Does ODC by v1.0 contain a share-alike clause?
> 
> Hi Elke
> 
> Thanks for the email.  Comments inline.
> On 7 Jun 2011, at 12:55, Brehm, Elke wrote:
> 
>> Dear all
>> I would like to discuss the following points with you. Since I am new to this list I do not know if these issues have been discussed already J.
>> 
>> Clause 4.2a of the license requires that Derivative Databases(as defined in the license) must be licensed under this license.
> 
> I disagree with this assertion, as set out below:
>> 
>> The definition of "Collective Database" in 1.0 only applies to a newly formed database made up of several databases (containing the licensed database in unmodified form) and explicitly excludes all modifications of the licensed database which fulfil the requirements of the definition for "Derivative Database", which also comprises the extraction or reutilisation of the "whole or a Substantial part of the Contents in a new Database".
>> 
>> Would you agree, that as a consequence modifications falling under the definition of "Collective Database" can be licensed under a different license, whereas modifications falling under the definition "Derivative Database" must be licensed under the ODC by v. 1.0?
> 
> A collective database can always be licensed under whatever the collective database rightsholder wants.  However the ODC-BY database within that collective database must be ODC-BY licensed.  A parallel example would be a picture in a newspaper.  The newspaper photo can have a separate copyright to the article that accompanies. it, and the publisher can have a copyright over the collection.
> 
> Same with derivative databases, the portion of the derivative database that is under the ODC-BY license remains ODC-BY licensed. 
> 
> 
>> Is it correct to assume, that the definition Derivative Database only applies, if the licensed database still constitutes the main element of the modified object?
> 
> I don't know about a test around "the main element", however I think it would be true to say that if there was no copying from the database then there can be no infringement in a copyright sense.  Also the local law may well apply some sort of de minimis test in applying the license (and thus IP law and contract) to any copying.
> 
>> Does the definition of "Derivative Database" (and in consequences 4.2a of the license) also apply if a Substantial part of the licensed Database is extracted and united with other independent databases?
> 
> I'm not quite sure what you mean in the context of the Database/Contents distinction within the license.  
> 
> "Substantial" refers to the Contents:
> 
> ""Substantial" – Means substantial in terms of quantity or quality or a
> combination of both. The repeated and systematic Extraction or
> Re-utilisation of insubstantial parts of the Contents may amount to the
> Extraction or Re-utilisation of a Substantial part of the Contents."
> 
> Similar to the above, at the "Database layer, whether someone has copied is a question of fact (and law as to what is protectable).l
> 
>> In consequence this license would contain a limited share alike clause regarding the Derivative Databases.
> 
> 
> Hopefully the above helps explain things.
> 
>> 
>> An additional question: What if the rights granted in the license do not exist in a certain country, because a database does not fulfil the conditions to merit copyright protection and a Database right does not exist (such as for example USA)?
> 
> Just to note, databases are potentially protectable in the United States under copyright for their selection and arrangement.
> 
> So what happens when a database is clearly and unequivocally not protectable under copyright or database rights? That's the reason that the ODC licenses are also contracts.
> 
> If it is not unequivocally unprotectable by copyright and database rights, then (just as with open source licenses) everyone has an option: (1) take the database under the liberal license offered and comply with it; or (2) try to fight it out in a court
> 
> Anywho, hope this helps.
> 
> Thanks!
> 
> Jordan
> 
>> 
>> Thanks for your help.
>> Elke
>> 
>> 
>> ______________________________________________
>> Elke Brehm, LL.M.
>> Project Manager SCOAP3-DH / Legal Affairs
>> 
>> German National Library of Science and Technology
>> Welfengarten 1B, 30167 Hannover, Germany
>> Tel.: +49 (0)511/762-19473, Fax: +49 (0)511/762-2686
>> 
>> mailto: elke.brehm at tib.uni-hannover.de
>> http://www.tib-hannover.de/
>> 
>> _______________________________________________
>> odc-discuss mailing list
>> odc-discuss at lists.okfn.org
>> http://lists.okfn.org/mailman/listinfo/odc-discuss
> 
> ____
> Mr. Jordan S Hatcher, JD, LLM
> 
> More at: <http://www.jordanhatcher.com>
> Co-founder:  <http://www.opendatacommons.org>
> Open Knowledge: <http://www.okfn.org/>
> 

____
Mr. Jordan S Hatcher, JD, LLM

More at: <http://www.jordanhatcher.com>
Co-founder:  <http://www.opendatacommons.org>
Open Knowledge: <http://www.okfn.org/>