I have employed law firms in the USA and UK to look into the question of whether the OSM map data is covered by copyright and to what extent the ODbL would make share-alike terms more enforceable compared to the current licence. Some details can be found in <http://article.gmane.org/gmane.comp.gis.openstreetmap.legal/6459>.
Yesterday and today I have had phone conversations with these lawyers and they have given me some preliminary results. This is a brief summary of a summary - so there may be mistakes or omissions which are entirely my fault. When I receive the full written reports I will make a more detailed report to the LWG and to this list. * USA In the US, the two lawyers found that the OSM map data is copyrightable. They mentioned the explicit inclusion of maps in copyright law and the use of choice and selection in making the OSM data (the idea-expression merger doctrine), plus some relevant case law. However, they did throw up unexpected problems relating to joint authorship. They considered whether individual OSM contributions might be too small to fall within copyright, but decided that based on available precedent, an individual contribution is still copyrightable. Reading the OSM website, they noted that it sometimes appears to disclaim copyright on the map as a whole, saying instead that copyright is held by individual contributors. This might be something to fix. The real difficulty is that under US copyright law, a joint owner of copyright (as for example a co-author of a book) has all rights associated with copyright. You would not be able to sue a person for copyright infringement for using a work of which they were joint copyright owner, although if they got money from it you could demand that every joint owner got a fair cut. Therefore, collecting contributions from large numbers of people could mean that each individual contributor gets carte blanche to do what they wish with the resulting work. This is a slightly absurd result, which I pointed out, but they felt that nonetheless it was a problem. (Clearly an edit made to the map of Austin, TX would not give joint copyright ownership in the map of Hawaii, but it might conceivably give joint ownership in the map of Texas.) They felt that the contributor terms need to be carefully worded to avoid this; contributors need to promise not to exercise their full rights as joint copyright holders. The current CTs on the osm.org site do mitigate the problem but are not as watertight as they could be. I had also asked them to look at the ODbL's contract-law provisions to judge whether they help enforcement. (The database right provisions do not apply in the USA.) However, because they judged that the map data was clearly within the scope of copyright, they did not go on to investigate the ODbL's potency for restricting data which is not copyrightable. That would have been a purely theoretical question. On their own initiative, and based on reading the OSM website, they also looked at the question of attribution and the theoretical problem of having to attribute every contributor individually. They did not see how the ODbL was any better or any worse than CC-BY-SA in this regard. I may have to get more clarification on this, since I don't know the exact reasons put forward for why attribution with CC-BY-SA may be problematic but fixed in ODbL. The summary was that a change of licence to the ODbL does not appear to be justified based on the reasons given in the OSM website. However, there is a necessity for some kind of contributor terms to avoid the joint copyright ownership problem, and the current CTs are not ideal but better than nothing. * United Kingdom (I believe copyright law is the same in all parts of the UK) My barrister in the UK fist considered the situation under the Copyright Act 1911. Here a 'sweat of the brow' doctrine broadly applies, and a database of map data can be considered a literary work for the purposes of copyright. The Street Directory cases are precedent that even a mere collection of facts (in that case, a list of street names) is covered. The 1911 Act was copied widely around the world - in many cases almost word for word. Not just Commonwealth countries but some others such as Israel have copyright statues that are based on this Act. Of course it is possible that recent judgements or statutes have diverged, and it would be necessary to consult an expert in each individual jurisdiction to be quite certain. Now, in the UK the EU Database Directive has superseded the 1911 Act for the purposes of the OSM database. It defines a database copyright which applies instead of the old literary-work-style right. (There is a case pending at the ECJ which argues that the 'classical' copyright continues to apply in addition to the new database copyright, and is not replaced by it, but my lawyer thought this argument unlikely to succeed.) This database copyright is not the same as the sui generis database right. Database copyright applies when the work "by reason of selection or arragement are the author's own creation". A collaborative work still qualifies, since an author can be a "group of natural persons". That is the legal test. I asked the barrister to familiarize himself with OSM's tagging system and common ways of mapping. Based on that research, his opinion was that the process of OSM mapping does involve sufficient judgement and creativity to fall within database copyright. It is not something that can be done without human input; even tracing from aerial photos creates a copyrightable work. GPS traces are not input into the system blindly but used as one data source in deciding how to map the layout of a street. That said, there may be an argument that an extract of one particular subset of the OSM data might not fall within copyright, if the data extracted is particularly non-creative. The problem of joint copyright ownership which the US lawyers identified does not apply in Commonwealth countries. Rather than an 'OR' operation as in the USA, jointly owned copyright is more like an 'AND' in that every copyright holder needs to give permission. Bringing an enforcement action could get interesting as every contributor would have the right to be a party to the case, but perhaps the threat of a huge case with hundreds of parties would be an even more effective deterrent to potential infringers! So far the UK-based counsel has not had time to look into the ODbL and its contract provisions, though he tells me there are some interesting questions. As in the US, the contract-law parts do not appear to be needed for OSM, since our data clearly is within copyright. - That's the summary, as I best translate it from my notes of the two phone calls. I would be happy to meet face to face with anyone interested - unfortunately I am not able to be at SoTM but am in London. I may not be able to publish the full report from the US law firms but I will do everything I can to make it accessible; potentially, I might be able to arrange for others to join in phone calls with the lawyers to discuss these matters. -- Ed Avis <e...@waniasset.com> _______________________________________________ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
