[odc-discuss] Licensing of produced works from an ODbL database

[Anthony]

On Wed, Nov 7, 2012 at 1:21 PM, Robert Whittaker (ODC lists) <
robert.whittaker+odc at gmail.com> wrote:

> On 4 November 2012 21:21, Anthony <osm at inbox.org> wrote:
> > A license is, by definition, a grant of permission to do something.  If
> you
> > don't accept the license, then your rights are limited to the exceptions
> to
> > database right / copyright which are granted by law.
>
> Yes, but if you're told you can use something under license X, you
> could reasonably have the expectation that there wouldn't be any
> additional restrictions on what you can do.
>

I'm not sure what you mean by that.  If you're doing something under ODbL,
there aren't any additional restrictions on what you can do.

If you're *not* doing something under ODbL, then you have to question
whether or not you're violating copyright and/or database right, as
applicable.

Anyway, if I've understand what you're saying correctly, the situation
> is roughly this:
>
> 1/ Users are free to license the copyright in any Produced Works from
> an ODbL database to others under any license they wish, provided that
> the license:
>
> (a) Is compatible with whatever content license the ODbL database uses
> for the contents that went in to making the Produced Work.
>
> (b) Ensures that the ODbL attribution text remains on any re-uses of
> the work (in order to comply with a conservative reading of ODbL 4.3).
>
> (And obviously that the user must also comply with the other terms of
> the ODbL regarding attribution and making available any derivative
> databases / added data / transformation algorithms.)
>

No.  What I'm saying is that a user can say "I release this Produced Work
(P) under L (the license)", and that L can be any license they want.
However, if P is a derivative work of O, then the license L does not apply
to P to the extent the derivative work P contains copyrightable elements of
O.  (You can't license the parts of a derivative work which you don't own
the copyright on, unless you have permission to sublicense, and ODbL
explicitly prohibits sublicensing.)  Furthermore, extracting data from O
via P may constitute extraction for which permission is needed under
database rights (on this point I'm not particularly familiar with database
rights law, but this seems to be the contention).

2/ However, any database rights in the Produced Work cannot be so
> licensed, and the ODbL still applies to them. So anyone else publicly
> using the Produced Work or any derivatives thereof needs to be bound
> by the ODbL. In particular, they must comply with 4.3 and 4.6 if they
> publicly use a Produced Work.
>

No.  First of all, database rights only apply in certain jurisdictions.
Furthermore, even in those jurisdictions, it is my understanding (though
again on this I am not well versed) that database rights only cover
"extraction and/or re-utilization".  Publicly using a Produced Work may or
may not constitute "extraction and/or re-utilization".  But I'm guessing in
most cases probably not.  Reverse engineering the Produced Work back into a
database, on the other hand, almost certainly would constitute "extraction
and/or re-utilization".

On the other hand, if you upload the Produced Work to archive.org, and
someone in the USA or some other non-database-rights jurisdiction reverse
engineers the data...  Well, I don't know for sure, and I hesitate to say
anything further on that.

On the other, other hand, if the database is *copyrighted*, and the
Produced Work is a derivative work (under copyright law, which is
completely separate from whether or not it is a Derivative Database under
ODbL), then you can't upload to archive.org or otherwise copy, distribute,
etc., without permission of both copyright holders - the copyright on the
original work, and the copyright on the derivative work.  In this case, at
the very least, 4.3 and 4.6 would apply (it's actually arguable based on
the plain text that ODbL doesn't apply at all, because Section 4.8 does not
mention Produced Works, but if so this is probably an unintended
consequence which can be easily fixed).

Given point 2, I think it is (at a minimum) rather misleading for
> someone to simply state that a Produced Work can be re-used under a
> copyright license such as CC-By.


I agree.  At least, in a case where the database is copyrighted, I agree.

(Though I should point out that it is not enough to "simply state that a
Produced Work can be re-used under", say, CC-BY.  You must also state
"Contains information from DATABASE NAME, which is made available here
under the Open Database License (ODbL).")

As an analogy, say I told you "This work is released under CC-BY.  Contains
the trademarks of TRADEMARK HOLDER which are made available here under the
Open Trademark License (OTrL)."  I think it would be clear that the work is
under CC-BY, but its use may be restricted by trademark rights, which are
licensed under OTrL.

A reasonable person might assume that
> as long as they comply with the CC-By terms, they can then do what
> they want with the Produced Work. But there are additional
> restrictions imposed by the database rights in point 2, which might
> not be expected.


If the database is not copyrighted, but merely protected by database
rights, then I think the terms are clear.  A Produced Work is supposed to
contain the statement "Contains information from DATABASE NAME, which is
made available here under the Open Database License (ODbL)."  A reasonable
person will read that and understand that if they want to extract the
information, and they are in a jurisdiction which recognizes database
rights, then they have to follow ODbL.


> (In fact, it could be argued that the receiver of
> the produced work would need to formally agree to the ODbL before they
> could use the produced work themselves, so does that mean that the
> person offering the produced work needs to include this as a term /
> requirement in whatever license they offer the Produced work under?).
>

I'm not sure what you mean by formally agree to the ODbL. The best I can
find about the method of acceptance is the statement that ODbL is an
"agreement in contract for users of this Database to act in certain ways in
return for accessing this Database".  Though the exact method of acceptance
is a bit unclear, there definitely doesn't seem to be anything formal about
it.
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