Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
-BEGIN PGP SIGNED MESSAGE- Hash: SHA1 On 24/03/11 13:13, Simon Poole wrote: > > The issue wrt to the wording is if to use a strong "must not infringe" > vs. a weak "should not infringe" (in the German translation). This would be an issue if the document stated that it uses the definitions provided by RFC 2119 and the words were capitalised. But this isn't an issue in plain language, where the words are synonyms. So it isn't an issue. - - Rob. -BEGIN PGP SIGNATURE- Version: GnuPG v1.4.11 (GNU/Linux) iQEcBAEBAgAGBQJNi1mlAAoJEOqcdhxmxssCqIoH/1Go1u3XQB8mqUuHKYgTy9aL gmpf8tLXvO3ysDYwSoK3DqqbXDRwVCH5ruZ6O1Alzv+zB0WjLagSQ8mdVtdykDz0 2MmmlqozT62jH/MueHQGc6pcZG55VWTWJAAThhH0lcvCLni49FjGNeq2jYdoZQA6 W8U9uz7OMir0u+3RZyQPZ0ZgoTIUCZOF3XwTYyJKiC09LEKrNinYGM9HCiWtidwp 4ODmCSMfiyLSdAE/FtvUNtxTpYiz/id497R1QcRZ3EyEFhVdMVYdYf7YwSch7lpA /KF9IxjqpY3qIibamo36redO726jnpkB3in4o2lZ++3DFaXjD403WycaWPklD3Y= =jYJ5 -END PGP SIGNATURE- ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
I was referring to the 1.2.4 French translation http://www.osmfoundation.org/images/c/c2/2011-03-08_OSM_Contributor_Terms_1.2.4_FrenchTranslation.pdf What you have is the translation of 1.0. The issue wrt to the wording is if to use a strong "must not infringe" vs. a weak "should not infringe" (in the German translation). Simon Am 24.03.2011 10:40, schrieb Francis Davey: On 24 March 2011 09:29, Francis Davey wrote: In context (which is how all contracts are read) it clearly means that the purpose of the contract is to ensure that the contribution of data does not infringe and to that end the contributor gives a warranty as to their state of knowledge about their right to authorize OSMF to do certain things. This is the 1.2.4 version. The French version: http://www.osmfoundation.org/wiki/License/Contributor_Terms/FR Clearly says something quite different as far as I can see, namely that the contributor agrees _only_ to add content for which they own the intellectual property. There's no clause that says which language contributor terms prevails - presumably whichever a contributor agrees to - so there are a multiplicity of agreements. Also puzzling is the distinction in clause 1. The first sentence says: "Dans le cas où des Contenus comprennent des éléments soumis à un droit d’auteur, Vous acceptez de n’ajouter que des Contenus dont Vous possédez la propriété intellectuelle." But "droit d'auteur" does not (as I understand the term) include database right. Its un droit des producteurs de bases de données rather than un droit d'auteur (forgive my atrocious French - its been nearly 30 years since I studied it). "propriété intellectuelle" is a much wider term, which includes industrial property. Maybe there's a good reason for this wording and I'm not either French or a French lawyer. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
Francis, have a nice holiday. Simon PS: I'm actually completly with you on the interpretation, the issue is that we have a large body of mappers that are German CS students, that just love arguing subtle points, and in formal specifications must, shall, should, etc. have very different meanings. Am 24.03.2011 14:27, schrieb Francis Davey: On 24 March 2011 13:13, Simon Poole wrote: I was referring to the 1.2.4 French translation http://www.osmfoundation.org/images/c/c2/2011-03-08_OSM_Contributor_Terms_1.2.4_FrenchTranslation.pdf What you have is the translation of 1.0. The issue wrt to the wording is if to use a strong "must not infringe" vs. a weak "should not infringe" (in the German translation). But contractual obligations aren't "strong" or "weak". Can you explain what you think that difference means in terms of the obligations either would impose on a contributor? It may be that German law knows of a difference between strong and weak obligations. English law doesn't (yes there's a distinction between terms which do or do not entitle the other party to repudiate, but we aren't worrying about that here). In other words, the proper question is: what obligation does the English contractor terms place on a contributor, and then translate that obligation into German. I'm not sure how close the existing wording is to one of the various ones I suggested, but the intention is that the first part of 1(a) indicates OSMF's goal, and only the second part imposes an obligation, but as I explained earlier I am not sure that is what it does. Can I suggest that it would be a really really good idea to have the contributor terms drafted in one go by a professional lawyer, rather than bit by bit. I've had various requests to look at specific parts of the wording, but really the contract has to hang together as a whole. What needs to happen is that (whoever it is who makes these decisions) decides what they want the terms to do and then have them drafted to do that. Drafting good legal copy is not something that should be done like a wiki document. I realise everyone works very hard over this, but none of the versions I've seen make me happy in numerous ways. I speak as someone who has entirely no view as to what they should do, but since I draft exactly this kind of contract all the time (and sadly litigate others, though not ones I have drafted), I have quite strong sensibilities about how they should read. My "spare time" is pretty limited and my pro bono effort is directed at various other organisations (My Society, ORG and the One Click Organisation) but just to get this settled I'd be happy to take formal instruction from OSMF to sort this out properly without charge. But I don't want to be a self-publicist. It may be that everyone is happy with the CT's and feels no help is needed. There are almost certainly other (large) law firms that would be happy to offer a free consult so they could associate their name with OSMF's (which is now getting pretty famous). Anyway, I'll see what anyone thinks about that when I am back from holiday. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 3/24/2011 5:40 AM, Francis Davey wrote: Also puzzling is the distinction in clause 1. The first sentence says: "Dans le cas où des Contenus comprennent des éléments soumis à un droit d’auteur, Vous acceptez de n’ajouter que des Contenus dont Vous possédez la propriété intellectuelle." I am reading http://www.osmfoundation.org/images/c/c2/2011-03-08_OSM_Contributor_Terms_1.2.4_FrenchTranslation.pdf and that particular text has been removed on Mar 7. Thanks, N. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 13:27, Richard Fairhurst wrote: > > http://www.osmfoundation.org/wiki/License/Contributor_Terms/FR > Excellent. Its nice not to have to work from PDF's. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 13:13, Simon Poole wrote: > > I was referring to the 1.2.4 French translation > > http://www.osmfoundation.org/images/c/c2/2011-03-08_OSM_Contributor_Terms_1.2.4_FrenchTranslation.pdf > > What you have is the translation of 1.0. > > The issue wrt to the wording is if to use a strong "must not infringe" vs. a > weak "should not infringe" (in the German translation). > But contractual obligations aren't "strong" or "weak". Can you explain what you think that difference means in terms of the obligations either would impose on a contributor? It may be that German law knows of a difference between strong and weak obligations. English law doesn't (yes there's a distinction between terms which do or do not entitle the other party to repudiate, but we aren't worrying about that here). In other words, the proper question is: what obligation does the English contractor terms place on a contributor, and then translate that obligation into German. I'm not sure how close the existing wording is to one of the various ones I suggested, but the intention is that the first part of 1(a) indicates OSMF's goal, and only the second part imposes an obligation, but as I explained earlier I am not sure that is what it does. Can I suggest that it would be a really really good idea to have the contributor terms drafted in one go by a professional lawyer, rather than bit by bit. I've had various requests to look at specific parts of the wording, but really the contract has to hang together as a whole. What needs to happen is that (whoever it is who makes these decisions) decides what they want the terms to do and then have them drafted to do that. Drafting good legal copy is not something that should be done like a wiki document. I realise everyone works very hard over this, but none of the versions I've seen make me happy in numerous ways. I speak as someone who has entirely no view as to what they should do, but since I draft exactly this kind of contract all the time (and sadly litigate others, though not ones I have drafted), I have quite strong sensibilities about how they should read. My "spare time" is pretty limited and my pro bono effort is directed at various other organisations (My Society, ORG and the One Click Organisation) but just to get this settled I'd be happy to take formal instruction from OSMF to sort this out properly without charge. But I don't want to be a self-publicist. It may be that everyone is happy with the CT's and feels no help is needed. There are almost certainly other (large) law firms that would be happy to offer a free consult so they could associate their name with OSMF's (which is now getting pretty famous). Anyway, I'll see what anyone thinks about that when I am back from holiday. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
Richard Fairhurst wrote: > [some stuff] Apparently CT 1.2.4 in French have just this moment gone live: http://www.osmfoundation.org/wiki/License/Contributor_Terms/FR cheers Richard -- View this message in context: http://gis.638310.n2.nabble.com/OSM-legal-talk-Request-for-clarification-for-German-translation-of-CTs-1-2-4-tp6203351p6204082.html Sent from the Legal Talk mailing list archive at Nabble.com. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
Francis Davey wrote: > I hope that makes sense and is not too mad. Absolutely. I guess what the Wikipedia article tells us is that informally (if incorrectly) one is often called the other and that, perhaps, is where the confusion in the French translation lies. cheers Richard -- View this message in context: http://gis.638310.n2.nabble.com/OSM-legal-talk-Request-for-clarification-for-German-translation-of-CTs-1-2-4-tp6203351p6203478.html Sent from the Legal Talk mailing list archive at Nabble.com. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 09:46, Richard Fairhurst wrote:
> Francis Davey wrote:
>> "droit d'auteur" does not (as I understand the term) include
>> database right. Its un droit des producteurs de bases de données
>> rather than un droit d'auteur (forgive my atrocious French - its been
>> nearly 30 years since I studied it).
>
> Nearly 20 years here, but FWIW, http://fr.wikipedia.org/wiki/Droit_d'auteur
> claims that "la directive 96/9/CE accorde... la protection du droit
> d’auteur... aux bases de données".
>
Right. I'm not sure how that tells us very much.
The point is that databases are protected in two ways by the
directive: (1) as copyright and (2) as a new "database right" which is
distinct thing ("sui generis"), so the directive:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:FR:HTML
says at article 3(1):
Conformément à la présente directive, les bases de données qui, par le
choix ou la disposition des matières, constituent une création
intellectuelle propre à leur auteur sont protégées comme telle par le
droit d'auteur. Aucun autre critère ne s'applique pour déterminer si
elles peuvent bénéficier de cette protection.
i.e. databases that are their author's own intellectual creation
obtain protection under Droit d'auteur.
But article 7(1) introduces a new database right:
Les États membres prévoient pour le fabricant d'une base de données le
droit d'interdire l'extraction et/ou la réutilisation de la totalité
ou d'une partie substantielle, évaluée de façon qualitative ou
quantitative, du contenu de celle-ci, lorsque l'obtention, la
vérification ou la présentation de ce contenu attestent un
investissement substantiel du point de vue qualitatif ou quantitatif.
Where the condition for qualification is substantial investment
(rather than traditional authorship). The shape of the new right is
different.
There's a translation of the French code here:
http://www.legifrance.gouv.fr/html/codes_traduits/cpialtext.htm
>From which (I hope) you can see that droit d'auteur and droit des
producteurs de base de données are quite different things. See:
http://www.legifrance.gouv.fr/affichCode.do;jsessionid=CFFB5CB2278C47661B863BC58EA5C281.tpdjo03v_2?idSectionTA=LEGISCTA06161660&cidTexte=LEGITEXT06069414&dateTexte=20110324
Where it is plainly said:
"Cette protection est indépendante et s'exerce sans préjudice de
celles résultant du droit d'auteur ou d'un autre droit sur la base de
données ou un de ses éléments constitutifs."
i.e. droit d'auteur is a separate concept.
I hope that makes sense and is not too mad.
--
Francis Davey
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Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
Francis Davey wrote: > "droit d'auteur" does not (as I understand the term) include > database right. Its un droit des producteurs de bases de données > rather than un droit d'auteur (forgive my atrocious French - its been > nearly 30 years since I studied it). Nearly 20 years here, but FWIW, http://fr.wikipedia.org/wiki/Droit_d'auteur claims that "la directive 96/9/CE accorde... la protection du droit d’auteur... aux bases de données". cheers Richard -- View this message in context: http://gis.638310.n2.nabble.com/OSM-legal-talk-Request-for-clarification-for-German-translation-of-CTs-1-2-4-tp6203351p6203428.html Sent from the Legal Talk mailing list archive at Nabble.com. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 09:17, Simon Poole wrote: > > Thomas Ineichen has been so nice to update the (unofficial) German > translation to 1.2.4 > (http://wiki.openstreetmap.org/wiki/DE:Open_Database_License/Contributor_Terms). > There is a small mater of dispute wrt to the intent of the English original > in 1 (a): > > "your contribution of data should not infringe .." > > Is the intent that the "should" is a legal mandatory "shall" or is it a > legal non-mandatory "should"? It seems that the French translation (based on > my awful French skills) would support the former. > I have no idea what the difference between a legal mandatory "shall" or a legal non-mandatory "should" is. Its not a distinction I've met in practice. In context (which is how all contracts are read) it clearly means that the purpose of the contract is to ensure that the contribution of data does not infringe and to that end the contributor gives a warranty as to their state of knowledge about their right to authorize OSMF to do certain things. This is the 1.2.4 version. That clause doesn't sit well with the grant of a non-exclusive licence in clause 2 or clause 6.1 for that matter which is a no-warranty clause, but it can't mean anything else. If you explain the distinction you are making it may help. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
