copyright not applicable to geodata?

[Jo Walsh]

dear all,

I tried to sum up the highlights of the discussion that's been
hammering the osgeo/geodata and openstreetmap/legal-talk lists over
the last few days. Word is that Science Commons say "copyright based
licenses don't apply to geographic information (as fact collection)"
so there's no point applying a CC- or GPL- derivative license to it.

http://blog.okfn.org/2007/04/01/copyright-not-applicable-to-geodata/

As usual where data licensing is concerned I Am Frustrated, OSGeo has
a mandate to offer sane and helpful advice to those wishing to open
license geographic data, there is a chance to set a precedent with a
couple of different public bodies but advice such as the above seems
like a setback from the rough consensus there was a couple of years ago.

I quite like the idea of a click-use contract if it is machine-negotiable,
cf the project that John Sheridan has going with OPSI right now.
But this all sounds novel, I want to be able to point at solid prior art.

Argh!


jo
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[Rufus Pollock]

Jo Walsh wrote:
> dear all,
>
> I tried to sum up the highlights of the discussion that's been
> hammering the osgeo/geodata and openstreetmap/legal-talk lists over
> the last few days. Word is that Science Commons say "copyright based
> licenses don't apply to geographic information (as fact collection)"
> so there's no point applying a CC- or GPL- derivative license to it.

That is simply not correct in many jurisdictions outside of the US where
there is copyright for 'data' (or, as in the EU, a similar sui generis
right). For this very reason the Dutch CC team explicitly wrote database
rights into their CC license (in no small part because one of the world
experts on database rights, Bernt Hugenholtz, heads the centre where
CC-Netherlands is based).

There was actually some recent discussion of this on this list see in
particular this post (and the links therein):

http://lists.okfn.org/pipermail/okfn-discuss/2007-March/000360.html

I also know that John Willbanks (of Science Commons) has particularly
strong views on these issues -- I had a lengthy exchange on this issue
with him back around december time on the SPARC open-data list:

https://mx2.arl.org/Lists/SPARC-OpenData/Message/100.html

> http://blog.okfn.org/2007/04/01/copyright-not-applicable-to-geodata/
>
> As usual where data licensing is concerned I Am Frustrated, OSGeo has
> a mandate to offer sane and helpful advice to those wishing to open
> license geographic data, there is a chance to set a precedent with a
> couple of different public bodies but advice such as the above seems
> like a setback from the rough consensus there was a couple of years ago.

As I said above this advice is plain wrong in many jurisdictions outside
of the US (even in the US it is not clear how far the Feist exclusion
extends). Also does it matter what CC think about this? As Paula LeDieu
said at OK 1.0: just draft your own (see e.g. the efforts of Talis whose
licensed is aimed at bibliographic community:
http://www.talis.com/tdn/tcl). Since you have got the rights (at least
outside of the US) you are free to do what you want (I have made several
noises to CC-EW about incorporating database rights explicitly into the
license but as yet I don't think anything has happened on this point).

> I quite like the idea of a click-use contract if it is machine-negotiable,
> cf the project that John Sheridan has going with OPSI right now.
> But this all sounds novel, I want to be able to point at solid prior art.

The technological implementation (e.g. click-use) is quite separate from
whether the license is valid -- i.e. is enforceable. The general point
is that in some jurisdictions there are no existing IP rights in the
data so there is nothing to license and hence the license, and
specifically thinks like the share-alike provisions, aren't enforceable.
  This is very clearly not the case in the EU since we have DB rights
and even in many other jurisdictions there is simply copyright in the data.

Thus the simple message to the openstreetmap and other list should be:
stop worrying and keep licensing.

~rufus

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[Richard Fairhurst]

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.

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.

We (OSM) are asking lawyers about this.

cheers
Richard


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[Rufus Pollock]

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

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[pgc]

Some parts of this message have been removed. Learn more about Nabble's security policy.

Second trial (my message "Re: [geo-discuss] copyright not applicable to geodata?" has been rejected by the list moderator: "... too big for the mailing list (the list limit is
40kb)".

All,
a part from DB european directive (96/9/EC) we'd better add some other EU directives + dozen WIPO documents + hundreds National laws (EU 25 members) on copyright and related rights.
You can download a couple of docs here, I do hope they can be useful:

1.
List of International and EU normatives on copyright and IP (kindly provided to CEN/TC287 WG5 by dr. M.Travostino, an italian lawyer and IP expert, also working on geodata issues - reading in cc)
2.
National laws ist (from WIPO database)

Jo:

>> Local and regional authorities in Italy and in New Zealand among others, have been looking into whether it is appropriate to use a Creative Commons license for geodata.

Are you really sure about that?
I do know local and regional authorities in Italy quite well: just few examples are seriously doing this (say 3 or 4 out of 20 Regions + 103 Provinces + 8000 Municipalities).
So, please, do not generalize: unfortunately it's not a national-wide phenomenon.


Direct link to docs:
1.  http://www.freegis-italia.org/index.php?option=com_docman&task=doc_download&gid=27&Itemid=65
2. http://www.freegis-italia.org/index.php?option=com_docman&task=doc_download&gid=28&Itemid=65


pg


---------- Forwarded message ----------
From: Piergiorgio Cipriano <pg.cipriano@...>
Date: Apr 2, 2007 2:59 PM
Subject: Re: [geo-discuss] copyright not applicable to geodata?
To: Rufus Pollock <rufus.pollock@...>, geo-discuss@...
Cc: massimo.travostino@...

[...]

On 4/2/07, Rufus Pollock <rufus.pollock@...> wrote:

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

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--
Piergiorgio Cipriano
pg.cipriano@...

--
Piergiorgio Cipriano
pg.cipriano@...
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