Re: [OSM-legal-talk] Licensability of an employee's work

[Frederik Ramm]

Hi,

On 21.10.19 12:31, Edward Bainton wrote:
> If the employer is to give permission, do we have a way of capturing
> that somehow? Is there a repository of PDFd emails authorising such
> things, for example?

When employees are asked by their employer to contribute data to OSM in
the course of their employment, this is something we call "organised
editing" and we have some rules around that (see
https://wiki.osmfoundation.org/wiki/Organised_Editing_Guidelines).

One part of these guidelines is that there should be proper
documentation of the project (who's running it, what's the goal, who's
participating, etc.) on the OSM wiki.

This documentation would be the natural place to also upload any
statements made by the employer about permissions granted.

In my naive legal understanding I would say that if the employer asks
their employees to upload data to OSM, the employer has thereby
automatically granted the necessary permission, but it can never hurt to
have it in writing.

Best
Frederik

PS: I would strongly advise against using a "corporate account" that
groups the activities of many individuals as it makes communication
between the group/company members and other members difficult, and good
communication is a cornerstone of every successful organised editing
activity.

-- 
Frederik Ramm  ##  eMail frede...@remote.org  ##  N49°00'09" E008°23'33"

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Re: [OSM-legal-talk] Licensability of an employee's work

[Edward Bainton]

Thank you.

If the employer is to give permission, do we have a way of capturing that
somehow? Is there a repository of PDFd emails authorising such things, for
example?

On the Talk-GB list it was suggested an organisation should create a
corporate account, but I don't know that that's any different from a
regular account and so I don't know whether it says clearly that the
employer (i.e., a corporate person) has opened the account, rather than it
being a 'personal' account of an individual employee (but whether *qua
*employee
on behalf of the organisation or *qua *private individual, we can't tell).

If the situation I have in mind goes to the scale it could, then I'm
wondering if it's safer to have a subscription service at £10 per year with
a very basic support portal for this network of (loosely speaking)
"federated" employers, with special support material for their special
mapping needs. It could be totally minimal, but provide an 'excuse' to get
an unambiguous corporate contributor agreement.

Sorry I can't be more specific at this stage about which employers I have
in mind, but if any thoughts can be usefully offered at this stage gladly
received.

Thanks,

Edward

On Sat, 19 Oct 2019 at 11:16, Simon Poole  wrote:

> If it was outside of the UK it is very unlikely that the edits by the
> employee would be considered anything protectable outside of them adding a
> substantial extract of data from a database that is protected by EU
> database regulation.
>
> In the UK however I suppose there is a chance of the edits, assuming they
> are not totally trivial, being a copyrightable work, which would
> potentially require us to remove them if in the end they were not available
> on terms that are compatible with the ODbL. If they don't amount to that I
> don't see any recourse of the employer wrt the data being in OSM.
>
> That said, -don't use OSM behind the back of the employer-, get upfront
> permission to use OSM.
>
> Simon
> Am 19.10.2019 um 10:12 schrieb Edward Bainton:
>
> Ah and perhaps we should distinguish between the employee whose manager
> says, "Put this into OSM" and the employee who thinks, "My employer doesn't
> care how I get the job done, so hang this proprietary GIS she's given me,
> my job is so much easier on OSM and she'll thank me for using it."
>
> On Sat, 19 Oct 2019 at 09:07, Edward Bainton 
> wrote:
>
>> Thank you both. To clarify, this is in the UK, where I am in discussion
>> with two organisations.
>>
>> From a purely legal perspective, can I simply plough on trying to invest
>> them in the usefulness of OSM on the basis that, if any employer became
>> unhappy, their remedy is against their employee for signing the Contributor
>> Agreement without authorisation - anIf it was d not against OSM, which can
>> keep the data?
>>
>> In other words, if later becomes a problem, it's not OSM's problem.
>>
>> Obviously, good practice may dictate a less "not my problem" approach,
>> but I'm trying to find the worst-case scenario before going further.
>>
>> On Sat, 19 Oct 2019 at 00:06, Kathleen Lu  wrote:
>>
>>> Jurisdiction dependant, but here are two general concepts which I think
>>> are relevant:
>>>
>>> As the statute you quoted specifies, when copyright will belong to the
>>> employer, it tends to depend on if the copyrightable work was made within
>>> the scope of the employee's job. (If you're a software programmer, it would
>>> be difficult for your employer to claim ownership a romance novel you
>>> write, but easier to claim ownership of code you write.)
>>>
>>> When an employee signs a contract, whether that contract is binding on
>>> the employer depends on whether the employee had authorization to sign on
>>> behalf of the employer, and sometimes whether it *seems* like to a
>>> reasonably objective person dealing with the employee whether the employee
>>> had authorization.
>>>
>>> These two principles would be in tension with each other in the case of
>>> an employer who claimed, on the one hand, that their employee's job was to
>>> edit OSM, but on the other hand, the employee did not have authorization to
>>> sign the Contributor Agreement, which would have been required for them to
>>> do their job.
>>>
>>> Thus, while it would be easy for an employer to claim ownership of such
>>> edits, I think it would be difficult for that same employer to also claim
>>> the Contributor Agreement does not apply.
>>>
>>> -Kathleen
>>>
>>>
>>> On Fri, Oct 18, 2019 at 3:04 PM Simon Poole  wrote:
>>>
 The question is rather complicated and if at all can really only be
 approached on a per jurisdiction base as both employment regulation and
 certain aspects of intellectual property law differ widely by territory.

 So the 1st thing to clarify would be where this is taking place and
 which law is relevant.

 Simon

 Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton <
 bainton@gmail.com>:
>
> Hi all
>
> Quick 

Re: [OSM-legal-talk] Licensability of an employee's work

[Simon Poole]

If it was outside of the UK it is very unlikely that the edits by the
employee would be considered anything protectable outside of them adding
a substantial extract of data from a database that is protected by EU
database regulation.

In the UK however I suppose there is a chance of the edits, assuming
they are not totally trivial, being a copyrightable work, which would
potentially require us to remove them if in the end they were not
available on terms that are compatible with the ODbL. If they don't
amount to that I don't see any recourse of the employer wrt the data
being in OSM.

That said, -don't use OSM behind the back of the employer-, get upfront
permission to use OSM.

Simon

Am 19.10.2019 um 10:12 schrieb Edward Bainton:
> Ah and perhaps we should distinguish between the employee whose
> manager says, "Put this into OSM" and the employee who thinks, "My
> employer doesn't care how I get the job done, so hang this proprietary
> GIS she's given me, my job is so much easier on OSM and she'll thank
> me for using it."
>
> On Sat, 19 Oct 2019 at 09:07, Edward Bainton  > wrote:
>
> Thank you both. To clarify, this is in the UK, where I am in
> discussion with two organisations.
>
> From a purely legal perspective, can I simply plough on trying to
> invest them in the usefulness of OSM on the basis that, if any
> employer became unhappy, their remedy is against their employee
> for signing the Contributor Agreement without authorisation - anIf
> it was d not against OSM, which can keep the data?
>
> In other words, if later becomes a problem, it's not OSM's problem.
>
> Obviously, good practice may dictate a less "not my problem"
> approach, but I'm trying to find the worst-case scenario before
> going further.
>
> On Sat, 19 Oct 2019 at 00:06, Kathleen Lu  > wrote:
>
> Jurisdiction dependant, but here are two general concepts
> which I think are relevant:
>
> As the statute you quoted specifies, when copyright will
> belong to the employer, it tends to depend on if the
> copyrightable work was made within the scope of the employee's
> job. (If you're a software programmer, it would be difficult
> for your employer to claim ownership a romance novel you
> write, but easier to claim ownership of code you write.)
>
> When an employee signs a contract, whether that contract is
> binding on the employer depends on whether the employee had
> authorization to sign on behalf of the employer, and sometimes
> whether it *seems* like to a reasonably objective person
> dealing with the employee whether the employee had authorization. 
>
> These two principles would be in tension with each other in
> the case of an employer who claimed, on the one hand, that
> their employee's job was to edit OSM, but on the other hand,
> the employee did not have authorization to sign the
> Contributor Agreement, which would have been required for them
> to do their job.
>
> Thus, while it would be easy for an employer to claim
> ownership of such edits, I think it would be difficult for
> that same employer to also claim the Contributor Agreement
> does not apply.
>
> -Kathleen
>
>
> On Fri, Oct 18, 2019 at 3:04 PM Simon Poole  > wrote:
>
> The question is rather complicated and if at all can
> really only be approached on a per jurisdiction base as
> both employment regulation and certain aspects of
> intellectual property law differ widely by territory.
>
> So the 1st thing to clarify would be where this is taking
> place and which law is relevant.
>
> Simon
>
> Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton
> mailto:bainton@gmail.com>>:
>
> Hi all
>
> Quick question arising from a 'lobbying' conversation: 
>
> *If an employee edits the map in the course of their
> employment, has the work been adequately licensed to
> OSM/the big wide Open?*
>
> According to UK Copyright Act 1988, 
> s. 11 (2) Where a literary, dramatic, musical or
> artistic work [F1
> 
> ,
> or a film,] is made by an employee in the course of
> his employment, his employer is the first owner of any
> copyright in the work subject to any agreement to the
> contrary.
>  
> Can the employee be regarded, as far as OSM is
> concerned, as having authority to license the work? 

Re: [OSM-legal-talk] Licensability of an employee's work

[Edward Bainton]

Ah and perhaps we should distinguish between the employee whose manager
says, "Put this into OSM" and the employee who thinks, "My employer doesn't
care how I get the job done, so hang this proprietary GIS she's given me,
my job is so much easier on OSM and she'll thank me for using it."

On Sat, 19 Oct 2019 at 09:07, Edward Bainton  wrote:

> Thank you both. To clarify, this is in the UK, where I am in discussion
> with two organisations.
>
> From a purely legal perspective, can I simply plough on trying to invest
> them in the usefulness of OSM on the basis that, if any employer became
> unhappy, their remedy is against their employee for signing the Contributor
> Agreement without authorisation - and not against OSM, which can keep the
> data?
>
> In other words, if later becomes a problem, it's not OSM's problem.
>
> Obviously, good practice may dictate a less "not my problem" approach, but
> I'm trying to find the worst-case scenario before going further.
>
> On Sat, 19 Oct 2019 at 00:06, Kathleen Lu  wrote:
>
>> Jurisdiction dependant, but here are two general concepts which I think
>> are relevant:
>>
>> As the statute you quoted specifies, when copyright will belong to the
>> employer, it tends to depend on if the copyrightable work was made within
>> the scope of the employee's job. (If you're a software programmer, it would
>> be difficult for your employer to claim ownership a romance novel you
>> write, but easier to claim ownership of code you write.)
>>
>> When an employee signs a contract, whether that contract is binding on
>> the employer depends on whether the employee had authorization to sign on
>> behalf of the employer, and sometimes whether it *seems* like to a
>> reasonably objective person dealing with the employee whether the employee
>> had authorization.
>>
>> These two principles would be in tension with each other in the case of
>> an employer who claimed, on the one hand, that their employee's job was to
>> edit OSM, but on the other hand, the employee did not have authorization to
>> sign the Contributor Agreement, which would have been required for them to
>> do their job.
>>
>> Thus, while it would be easy for an employer to claim ownership of such
>> edits, I think it would be difficult for that same employer to also claim
>> the Contributor Agreement does not apply.
>>
>> -Kathleen
>>
>>
>> On Fri, Oct 18, 2019 at 3:04 PM Simon Poole  wrote:
>>
>>> The question is rather complicated and if at all can really only be
>>> approached on a per jurisdiction base as both employment regulation and
>>> certain aspects of intellectual property law differ widely by territory.
>>>
>>> So the 1st thing to clarify would be where this is taking place and
>>> which law is relevant.
>>>
>>> Simon
>>>
>>> Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton <
>>> bainton@gmail.com>:

 Hi all

 Quick question arising from a 'lobbying' conversation:

 *If an employee edits the map in the course of their employment, has
 the work been adequately licensed to OSM/the big wide Open?*

 According to UK Copyright Act 1988,
 s. 11 (2) Where a literary, dramatic, musical or artistic work [F1
 ,
 or a film,] is made by an employee in the course of his employment,
 his employer is the first owner of any copyright in the work subject to any
 agreement to the contrary.

 Can the employee be regarded, as far as OSM is concerned, as having
 authority to license the work? Or rather, which is what I take to be the
 more important question, if the employer became unhappy with OSM using
 their employee's edits, would her remedy be against OSM, or against her
 employee?

 Thanks!

>>>
>>> --
>>> Diese Nachricht wurde von meinem Android-Mobiltelefon mit Kaiten Mail
>>> gesendet.
>>> ___
>>> legal-talk mailing list
>>> legal-talk@openstreetmap.org
>>> https://lists.openstreetmap.org/listinfo/legal-talk
>>>
>>
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Re: [OSM-legal-talk] Licensability of an employee's work

[Edward Bainton]

Thank you both. To clarify, this is in the UK, where I am in discussion
with two organisations.

>From a purely legal perspective, can I simply plough on trying to invest
them in the usefulness of OSM on the basis that, if any employer became
unhappy, their remedy is against their employee for signing the Contributor
Agreement without authorisation - and not against OSM, which can keep the
data?

In other words, if later becomes a problem, it's not OSM's problem.

Obviously, good practice may dictate a less "not my problem" approach, but
I'm trying to find the worst-case scenario before going further.

On Sat, 19 Oct 2019 at 00:06, Kathleen Lu  wrote:

> Jurisdiction dependant, but here are two general concepts which I think
> are relevant:
>
> As the statute you quoted specifies, when copyright will belong to the
> employer, it tends to depend on if the copyrightable work was made within
> the scope of the employee's job. (If you're a software programmer, it would
> be difficult for your employer to claim ownership a romance novel you
> write, but easier to claim ownership of code you write.)
>
> When an employee signs a contract, whether that contract is binding on the
> employer depends on whether the employee had authorization to sign on
> behalf of the employer, and sometimes whether it *seems* like to a
> reasonably objective person dealing with the employee whether the employee
> had authorization.
>
> These two principles would be in tension with each other in the case of an
> employer who claimed, on the one hand, that their employee's job was to
> edit OSM, but on the other hand, the employee did not have authorization to
> sign the Contributor Agreement, which would have been required for them to
> do their job.
>
> Thus, while it would be easy for an employer to claim ownership of such
> edits, I think it would be difficult for that same employer to also claim
> the Contributor Agreement does not apply.
>
> -Kathleen
>
>
> On Fri, Oct 18, 2019 at 3:04 PM Simon Poole  wrote:
>
>> The question is rather complicated and if at all can really only be
>> approached on a per jurisdiction base as both employment regulation and
>> certain aspects of intellectual property law differ widely by territory.
>>
>> So the 1st thing to clarify would be where this is taking place and which
>> law is relevant.
>>
>> Simon
>>
>> Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton <
>> bainton@gmail.com>:
>>>
>>> Hi all
>>>
>>> Quick question arising from a 'lobbying' conversation:
>>>
>>> *If an employee edits the map in the course of their employment, has the
>>> work been adequately licensed to OSM/the big wide Open?*
>>>
>>> According to UK Copyright Act 1988,
>>> s. 11 (2) Where a literary, dramatic, musical or artistic work [F1
>>> ,
>>> or a film,] is made by an employee in the course of his employment, his
>>> employer is the first owner of any copyright in the work subject to any
>>> agreement to the contrary.
>>>
>>> Can the employee be regarded, as far as OSM is concerned, as having
>>> authority to license the work? Or rather, which is what I take to be the
>>> more important question, if the employer became unhappy with OSM using
>>> their employee's edits, would her remedy be against OSM, or against her
>>> employee?
>>>
>>> Thanks!
>>>
>>
>> --
>> Diese Nachricht wurde von meinem Android-Mobiltelefon mit Kaiten Mail
>> gesendet.
>> ___
>> legal-talk mailing list
>> legal-talk@openstreetmap.org
>> https://lists.openstreetmap.org/listinfo/legal-talk
>>
>
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Re: [OSM-legal-talk] Licensability of an employee's work

[Kathleen Lu via legal-talk]

Jurisdiction dependant, but here are two general concepts which I think are
relevant:

As the statute you quoted specifies, when copyright will belong to the
employer, it tends to depend on if the copyrightable work was made within
the scope of the employee's job. (If you're a software programmer, it would
be difficult for your employer to claim ownership a romance novel you
write, but easier to claim ownership of code you write.)

When an employee signs a contract, whether that contract is binding on the
employer depends on whether the employee had authorization to sign on
behalf of the employer, and sometimes whether it *seems* like to a
reasonably objective person dealing with the employee whether the employee
had authorization.

These two principles would be in tension with each other in the case of an
employer who claimed, on the one hand, that their employee's job was to
edit OSM, but on the other hand, the employee did not have authorization to
sign the Contributor Agreement, which would have been required for them to
do their job.

Thus, while it would be easy for an employer to claim ownership of such
edits, I think it would be difficult for that same employer to also claim
the Contributor Agreement does not apply.

-Kathleen


On Fri, Oct 18, 2019 at 3:04 PM Simon Poole  wrote:

> The question is rather complicated and if at all can really only be
> approached on a per jurisdiction base as both employment regulation and
> certain aspects of intellectual property law differ widely by territory.
>
> So the 1st thing to clarify would be where this is taking place and which
> law is relevant.
>
> Simon
>
> Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton <
> bainton@gmail.com>:
>>
>> Hi all
>>
>> Quick question arising from a 'lobbying' conversation:
>>
>> *If an employee edits the map in the course of their employment, has the
>> work been adequately licensed to OSM/the big wide Open?*
>>
>> According to UK Copyright Act 1988,
>> s. 11 (2) Where a literary, dramatic, musical or artistic work [F1
>> ,
>> or a film,] is made by an employee in the course of his employment, his
>> employer is the first owner of any copyright in the work subject to any
>> agreement to the contrary.
>>
>> Can the employee be regarded, as far as OSM is concerned, as having
>> authority to license the work? Or rather, which is what I take to be the
>> more important question, if the employer became unhappy with OSM using
>> their employee's edits, would her remedy be against OSM, or against her
>> employee?
>>
>> Thanks!
>>
>
> --
> Diese Nachricht wurde von meinem Android-Mobiltelefon mit Kaiten Mail
> gesendet.
> ___
> legal-talk mailing list
> legal-talk@openstreetmap.org
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>
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Re: [OSM-legal-talk] Licensability of an employee's work

[Simon Poole]

The question is rather complicated and if at all can really only be approached 
on a per  jurisdiction base as both employment regulation and certain aspects 
of intellectual property law differ widely by territory.

So the 1st thing to clarify would be where this is taking place and which law 
is relevant.

Simon

Am 18. Oktober 2019 19:41:59 MESZ schrieb Edward Bainton 
:
>Hi all
>
>Quick question arising from a 'lobbying' conversation:
>
>*If an employee edits the map in the course of their employment, has
>the
>work been adequately licensed to OSM/the big wide Open?*
>
>According to UK Copyright Act 1988,
>s. 11 (2) Where a literary, dramatic, musical or artistic work [F1
>,
>or a film,] is made by an employee in the course of his employment, his
>employer is the first owner of any copyright in the work subject to any
>agreement to the contrary.
>
>Can the employee be regarded, as far as OSM is concerned, as having
>authority to license the work? Or rather, which is what I take to be
>the
>more important question, if the employer became unhappy with OSM using
>their employee's edits, would her remedy be against OSM, or against her
>employee?
>
>Thanks!

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[OSM-legal-talk] Licensability of an employee's work

[Edward Bainton]

Hi all

Quick question arising from a 'lobbying' conversation:

*If an employee edits the map in the course of their employment, has the
work been adequately licensed to OSM/the big wide Open?*

According to UK Copyright Act 1988,
s. 11 (2) Where a literary, dramatic, musical or artistic work [F1
,
or a film,] is made by an employee in the course of his employment, his
employer is the first owner of any copyright in the work subject to any
agreement to the contrary.

Can the employee be regarded, as far as OSM is concerned, as having
authority to license the work? Or rather, which is what I take to be the
more important question, if the employer became unhappy with OSM using
their employee's edits, would her remedy be against OSM, or against her
employee?

Thanks!
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