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

[Robert Whittaker (ODC lists)]

On 7 November 2012 20:42, Anthony <osm at inbox.org> wrote:
> 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).

I'd have to disagree here. If there are rights in P that you cannot
license under L, then surely you cannot tell people that you are
licensing P under L, at least not without further qualification. Such
a statement contains the implicit assumption that other people could
use P under the terms (and only the terms) of L. The best you can do
in this case is to say something like  "I release my IP in this
produced work under L." And if you wanted to be helpful, you'd then
explain what other IP there is in P, and how it may (or may not) be
used.

> No.  First of all, database rights only apply in certain jurisdictions.

Isn't the point of the "contract" aspect of the ODbL to protect those
rights using contract law even in those jurisdictions which don't have
a notion of database rights?

> 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.

I'm not sure that's the case. When coupled with a statement about a
CC-By license, the "Contains information from DATABASE NAME, which is
made available here under the Open Database License (ODbL)."  could be
read as an attribution statement, that re-users are simply required to
maintain under the terms of CC-By.

>> (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.

Ok, change "formally agree to" to "be aware that they need to comply
with the terms of". Back to what I said originally: If you are given P
and told it's licensed under L, then you would expect to be able to
use it under the terms of L, without further restrictions. If you're
not made aware that there are additional terms you need to comply
with, then how are you to know that you need to do so. I don't think
that the ODbL attribution statement necessarily gives that awareness.

I've probably been thinking in terms of sub-licensing, when I
shouldn't have been. So maybe I should re-phrase my question: Suppose
I have used an ODbL database to create a produced work. I want others
to be able to use the produced work, so I need to provide potential
users with a clear statement of the terms under which they may do so.
I'd like the terms to be as liberal as possible, and am happy to
license my IP in the produced work under eg CC0. What do I need to
tell people about the terms under which they may re-use the produced
work? Presumably I need to tell them that they must comply with the
ODbL terms as far as the produced work and its underlying data are
concerned.

Many thanks,

Robert.