Hi James,
Le 30/11/2017 à 23:54, James Heald a écrit :
Mathieu,
You don't seem to grasp the essential legal point, though several
people in this thread have already tried to tell you.
Copyright protects expression and creative originality. It does not
protect merely a collation of facts.
Well, let's recall
https://meta.wikimedia.org/wiki/Wikilegal/Database_Rights#Copyright_protection_in_the_US:
A database is protected by copyright when the selection or
arrangement is original and creative.^[2]
<https://meta.wikimedia.org/wiki/Wikilegal/Database_Rights#cite_note-2>
The level of creativity required is low, so it doesn’t have to be
very creative — as long as the author had some discretion and made
some choices in what to include or how to organize it, the database
is likely to be protected.
So, depending on how creative your collation arrangement is, copyright
might apply (in the US). In Europe, as you point bellow, /sui generis/
rights might be enforceable.
The CC-SA licence is based on copyright. Anything that is not
protected by copyright is not protected by the CC-SA licence.
To the extent that an article can be reduced to a mere collation of
facts, it is not protected by copyright. What is protected is any
originality or creativity in how those facts are organised and
presented -- the expression, the sequence of thought, the selections
of words, all the authorial choices in the text.
The problem not addressed in this reasoning is that all this "creative
choices" can themselves be exposed as factual statements. This could be
exposed in extensive development of several concurrent theses regarding
the problem of knowledge and creativity from both a gnoseologic and
epistemic perspectives. But admittedly, here this would be useless
offtopic logorrhoea. So in short, through history people developed,
inter alias, theories which states that everything is creative, nothing
is creative, only some things are creative.
So the problem here is not that I can't grasp the legal point about the
creativity argument, but that I'm not in position of enforcing what is
considered creative nor predict whatever some undetermined legal entity
might prefer to declare to be creative or not.
For that, you have to get the answer from some legal entity which
through their mystic power inaccessible to mere mortal like me will be
able to operate the magical performative statement
<https://en.wikipedia.org/wiki/Performative_utterance> that will seal
the destiny of a work into the realm of creativity or relegate it to
vulgar combinatorial material for the rest of eternity (in the scope of
its jurisdiction, until some other legal decision states otherwise).
*That* is the difference between a copyright-protected Wiki article on
the one hand, and a Wikidata collection of facts on the other.
In the European Union collections of facts can be protected by
database rights.
That is the path Open Streetmap chose, when they designed the ODbL, to
prevent their work being eaten up and assimilated by closed commercial
rivals.
It is not the choice Wikidata made. And it is not the choice any of
the Wiki projects made before Wikidata -- CC-SA disclaims database
rights.
Actually, as far as I know, CC-by-sa-3.0-undeed states nothing about
/suis generis/ rights, and so don't disclaim it but let it applied in
all its extensiveness.
And that is the license that cover all other Wikimedia wiki projects
(with a dual GFDL 1.3), except Commons where users chose whatever free
licenses they want, and Wikidata which permit exclusively CC0.
And a large part of the inquiry on this topic is to determine who
decided to use exclusively CC0, through which process and with which
goals/perspectives. Some answers stated "long discussions on the topic",
but I wasn't given any link so far with something like a vote on the
topic, and until something like that is provided, it can't be checked
that indeed the community made this decision. So a statement like "the
choice Wikidata made" is inconvenient, as what denotation is supposed to
be done of "Wikidata" in this context is all but trivial.
Yes, CC0 causes us some difficulties.
It means what we can import from OpenStreetmap is very restricted --
mass import falls foul of OSM's database rights; and also coordinates
and boundaries are somewhat susceptible to judgment, so there is
probably a copyright element to.
It also makes it difficult to import from official sources (eg the UK
Open Government Licence) that use database rights to require
attribution -- that is not an obligation we are prepared to pass on to
out re-users, which means we generally have to forego such sources.
I think that with the solution already previously proposed to integrate
a license attribute, it would be extremely easy for end user to filter
items and statements that come with license they don't want to respect,
while still enabling other to benefit from their presence in Wikidata.
The important point though is that this boat has sailed. Wikidata is
CC0, and it is not going to change now.
Why not? It was envisioned and explicitly stated from the very beginning
of Wikidata that it might switch license at some point. And actually,
I'm not even supporting such a move, but simply to also open Wikidata to
sources with other free licenses.
Yes, somebody could fork the data from Wikidata into their own ODbL
project if they wanted to. CC0 allows that. (The reverse direction
is what is difficult). You might have preferred ODBL on viral
GPL-style community-building (or community-isolating) grounds. But
that is not going to happen.
I would prefer to avoid fork if possible, this is scattering of
resources. And personally I'm not favourable to enforce a single
license. ODbL alone would keep entire the legal uncertainty issue of
massive import from incompatible licenses such as Wikipedia. However if
there was a community driven decision on this topic going in this
direction, I would follow it.
Also a fork would not be accessible from other Wikimedia projects, which
is as far as I'm concerned the main interest of Wikidata (indeed I have
no interest in how it might be used by some random organisation where I
don't have any possibility to contribute). Now if the foundation would
be interested to run and integrate such a fork, that might begin to
become interesting, but otherwise a fork would be useless for the
Wikimedia environment.
But there is no restriction, not from copyright law, nor from the
CC-BY-SA licence, to stop Wikidata -- or anyone else -- extracting and
systematically storing standard uncontroversial facts, so long as
nothing of original expression is taken.
Please confirm that you understand this.
I understand that "uncontroversial facts" and "original expression" is
too subject to interpretation for enabling any accurate prediction on
what will be qualified as covered under it by some undetermined legal
entity, all the more as I am not a lawyer. If you have some
jurisprudence references that pertain to this topic, surely that would
be far more interesting than what I might understand and opinion.
I'm afraid this will not be the reply you would have preferred, but I
greet your educational effort toward me and deeply thank you for taking
time to write such an extensive and detailed answer.
Cheers,
mathieu
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