Jump to: content, navigation, search

Navigation menu

Licence and Legal FAQ/Why CC BY-SA is Unsuitable: Difference between revisions

Licence and Legal FAQ/Why CC BY-SA is Unsuitable (view source)

Revision as of 16:35, 23 October 2009

223 bytes added ,  14 years ago
→‎Lack of Copyright Protection
No edit summary
== Lack of Copyright Protection ==
 
An important case from U.S. law is ''Fiest v. Rural'', which established that facts are not copyrightable. From Wikipedia [1]:
An important case from U.S. law is Fiest v. Rural, which established that facts are not copyrightable. From Wikipedia [1]: It is a long-standing principle of United States copyright law that "information" is not copyrightable, [Justice] O'Connor notes, but "collections" of information can be. Rural claimed a collection copyright in its directory. The court clarified that the intent of copyright law was not, as claimed by Rural and some lower courts, to reward the efforts of persons collecting information, but rather "to promote the Progress of Science and useful Arts" (U.S. Const. 1.8.8), that is, to encourage creative expression. This is in contrast to the U.K., and some other jurisdictions, in which the "sweat of the brow" doctrine does reward the efforts of persons collecting information. The ruling suggests that many parts of OSM data are not copyrightable; for example names, reference codes and house numbers. O'Connor's verdict contains:▼
 
<blockquote>
The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. [...] Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. [...] To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. OSM meets the originality requirement, as long as it isn't copied from other works and it might be argued that the selection of appropriate tags, or the alignment of geometry to GPS traces or aerial imagery requires a "minimal degree of creativity". This is picked up by the Science Commons FAQ [2]:▼
▲An important case from U.S. law is Fiest v. Rural, which established that facts are not copyrightable. From Wikipedia [1]: It is a long-standing principle of United States copyright law that "information" is not copyrightable, [Justice] O'Connor notes, but "collections" of information can be. Rural claimed a collection copyright in its directory. The court clarified that the intent of copyright law was not, as claimed by Rural and some lower courts, to reward the efforts of persons collecting information, but rather "to promote the Progress of Science and useful Arts" (U.S. Const. 1.8.8), that is, to encourage creative expression. This is in contrast to the U.K., and some other jurisdictions, in which the "sweat of the brow" doctrine does reward the efforts of persons collecting information. The ruling suggests that many parts of OSM data are not copyrightable; for example names, reference codes and house numbers. O'Connor's verdict contains:
</blockquote>
 
This is in contrast to the U.K., and some other jurisdictions, in which the "sweat of the brow" doctrine does reward the efforts of persons collecting information.
In the United States, data will be protected by copyright only if they express creativity. Some databases will satisfy this condition, such as a database containing poetry or a wiki containing prose. Many databases, however, contain factual information that may have taken a great deal of effort to gather, such as the results of a series of complicated and creative experiments. Nonetheless, that information is not protected by copyright and cannot be licensed under the terms of a Creative Commons license. And from [3]: The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one - there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work - then the expression of the idea is uncopyrightable because ideas may not be copyrighted. Replacing "idea" with "fact" we can conclude that if there is a canonical form for tags or geometry then we will approach uncopyrightability. Given the "on the ground rule" [4] and "verifiability" rule [5] imply that the representation of a real-world feature in OSM should be independent of the contributor, it isn't clear that there is more than "a drastically limited number" of expressions. Note that although Mason v. Montgomery [6] recognises the copyrightability of the maps themselves; The protection that each map receives extends only to its original expression, and neither the facts nor the idea embodied in the maps is protected. The requirement for creativity seems to be linked to the pictoral display of the information and the skill and judgement used, rather than the selection of sources of facts; Because Mason's maps possess sufficient creativity in both the selection, coordination, and arrangement of the facts that they depict, and as in the pictorial, graphic nature of the way that they do so, we find no error in the district court's determination that Mason's maps are original. Version 3.0 of the CC BY-SA license [10] defines "work" in section 1.h as: "Work" means the literary and/or artistic work offered under the terms of this License... This is followed by a non-exclusive list of things considered "works", which includes maps, but does not include the data underlying the maps to the extent such data is not protected by copyright. While it is possible that the definition includes the data without explicitly mentioning it, it is also possible that data would not fall under the definition of "work", meaning that CC BY-SA would protect the appearance and rendering of OSM data, but not the substance - the data.
 
The ruling suggests that many parts of OSM data are not copyrightable; for example names, reference codes and house numbers. O'Connor's verdict contains:
CC BY-SA licenses are licenses in copyright only and were created with copyright specifically in mind. OSM's factual data is not copyrightable in most jurisdictions, except with respect to some "thin" copyright in the structure or organization of the databases that is not particularly valuable to the project. Conclusion: It is quite likely that OSM data is not protected by U.S. (and other jurisdictions') copyright laws. This means it is also quite likely that CC BY-SA, which relies on copyright in the data, not the data collection, does not protect OSM data. Consequently, a different type of license and/or agreement would better protect the data we care about.▼
 
<blockquote>
▲The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. [...] Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. [...] To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. OSM meets the originality requirement, as long as it isn't copied from other works and it might be argued that the selection of appropriate tags, or the alignment of geometry to GPS traces or aerial imagery requires a "minimal degree of creativity". This is picked up by the Science Commons FAQ [2]:
</blockquote>
 
OSM meets the originality requirement, as long as it isn't copied from other works and it might be argued that the selection of appropriate tags, or the alignment of geometry to GPS traces or aerial imagery requires a "minimal degree of creativity". This is picked up by the Science Commons FAQ [2]:
 
<blockquote>
In the United States, data will be protected by copyright only if they express creativity. Some databases will satisfy this condition, such as a database containing poetry or a wiki containing prose. Many databases, however, contain factual information that may have taken a great deal of effort to gather, such as the results of a series of complicated and creative experiments. Nonetheless, that information is not protected by copyright and cannot be licensed under the terms of a Creative Commons license.
</blockquote>
 
And from [3]:
 
<blockquote>
The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one - there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work - then the expression of the idea is uncopyrightable because ideas may not be copyrighted.
</blockquote>
 
Replacing "idea" with "fact" we can conclude that if there is a canonical form for tags or geometry then we will approach uncopyrightability. Given the "on the ground rule" [4] and "verifiability" rule [5] imply that the representation of a real-world feature in OSM should be independent of the contributor, it isn't clear that there is more than "a drastically limited number" of expressions.
 
Note that although Mason v. Montgomery [6] recognises the copyrightability of the maps themselves;
 
<blockquote>
The protection that each map receives extends only to its original expression, and neither the facts nor the idea embodied in the maps is protected. </blockquote>
 
The requirement for creativity seems to be linked to the pictoral display of the information and the skill and judgement used, rather than the selection of sources of facts;
 
<blockquote>
Because Mason's maps possess sufficient creativity in both the selection, coordination, and arrangement of the facts that they depict, and as in the pictorial, graphic nature of the way that they do so, we find no error in the district court's determination that Mason's maps are original.
</blockquote>
 
Version 3.0 of the CC BY-SA license [10] defines "work" in section 1.h as:
 
<blockquote>
"Work" means the literary and/or artistic work offered under the terms of this License...
</blockquote>
 
This is followed by a non-exclusive list of things considered "works", which includes maps, but does not include the data underlying the maps to the extent such data is not protected by copyright. While it is possible that the definition includes the data without explicitly mentioning it, it is also possible that data would not fall under the definition of "work", meaning that CC BY-SA would protect the appearance and rendering of OSM data, but not the substance - the data.
 
CC BY-SA licenses are licenses in copyright only and were created with copyright specifically in mind. OSM's factual data is not copyrightable in most jurisdictions, except with respect to some "thin" copyright in the structure or organization of the databases that is not particularly valuable to the project.
 
▲CC BY-SA licenses are licenses in copyright only and were created with copyright specifically in mind. OSM's factual data is not copyrightable in most jurisdictions, except with respect to some "thin" copyright in the structure or organization of the databases that is not particularly valuable to the project. ''Conclusion''': It is quite likely that OSM data is not protected by U.S. (and other jurisdictions') copyright laws. This means it is also quite likely that CC BY-SA, which relies on copyright in the data, not the data collection, does not protect OSM data. Consequently, a different type of license and/or agreement would better protect the data we care about.
 
== Combining CC BY-SA with Other Data ==
Retrieved from "https://osmfoundation.org/wiki/Special:MobileDiff/190"