Board/Minutes/2020-10-S2S/Legal team and Brexit implications - resolve how to respond

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Notes by participants. Might be enriched.

This session took place in parallel with " Creating software dispute resolution panel". A summary was provided to the other group.

Participants

Board members

  • Guillaume Rischard (Treasurer)
  • Joost Schouppe (Secretary)

The rest of the board members participated in the parallel session " Creating software dispute resolution panel".

Biographies.

Background by Simon Poole, LWG chairperson, sent to board

As a friendly reminder, the Brexit transition period will end at the end of this year and as you may remember, the question of maintaining sui generis database rights in our data is still open.

It is clear, see https://www.gov.uk/guidance/sui-generis-database-rights-after-the-transition-period, that any newly created databases post 31st December will no longer be afforded sui generis DB rights in the EU. It would seem that the only way around this is to either move the OSMF completely to the EU or create an EU-based subsidiary that will publish in the EU (this potentially creates issues with the contributor terms, but I don't see them ruling such a solution out).

The above is based on the assumption that we are (fsvo) continuously creating new databases that restart the 15 year protection period (if that is not the case then the problem will not be fixable in any case). How often that is the case (as in we have modified the database so substantially that it is considered new) is I suspect a matter of debate, but it is very unlikely to be at the minutely diff level, so we probably have some leeway wrt the December 31st deadline.

Related past minutes:

Notes

  • Main Brexit topic.
  • Rob Nickerson's (OSM UK) suggestion.
    • asset lock is a disadvantage if you want to reorganise. Currently no asset lock, by design, to allow the OSMF to evolve into a final form.
  • GDPR questions: move personal data to Amsterdam?

In favour of moving

  • Existential: Keep sui generis database rights [1](https://www.gov.uk/guidance/sui-generis-database-rights-after-the-transition-period). We still have other protections, but this is a big one and has been useful in the past.
  • Paypal easier.
  • (EUR) banking.
  • Possible to receive tax-free status as a foundation in Luxembourg?
    • We currently pay about £6000 in tax per year. Will increase with iD/SRE (Site Reliability Engineer) funding income.
  • Easier rules regarding membership.
  • EU representative for the OSMF for GDPR purposes (a separate issue which is however solvable by simply determining a rep). Kathleen Lu (lawyer, LWG member) thinks not necessary.
  • Keep .EU domain.

Possible relocation lawyer: Wirtz in Luxembourg

Against

  • It's a lot of work.
  • It's a lot of work.
  • Cost (lawyers, registration...).
  • Time budget/bandwidth of board.

Points to consider

  • Moving assets (IP especially).
  • Articles of Association (AoA) change?
  • Change membership? Does every member need to agree?
  • Fully new company, or same company moving?
  • Would donations be tax-free EU wide?
  • Needs to happen quickly.
    • We would lose .eu domain.
    • By publishing database dumps outside of the EU, we won't have EU database protection after 1 January.
  • Move the whole foundation or just set up a "publishing" subsidiary in the EU?
    • How would it work?
    • Still needs a contributor agreement change?

Decisions

  • Start up a legal analysis of costs, benefits, drawbacks and process, to decide on if we should do it.
  • Talk to an actual lawyer (Wirtz in Luxembourg?)
    • More than one lawyer? One for IP law, one for company law, one UK lawyer?
  • Offset the workload to committee/someone who can do paid work on this?

Action item

  • Guillaume and Paul to spend a maximum of three hours talking to lawyers.