A question about open databases license

[Heiki “Repentinus” Ojasild]

On 12/04/2014 10:16 PM, Michel Roche wrote:
> While I agree at a philosophical/ethical level, the fact is that the
> organization has spent time and efforts (even some [public] money) to
> produce the data. They want to see reuses of it, and they also want to
> be granted, rewarded in a way. I see the Open License (or CC-BY or ODBL)
> licence as an appropriate tool to adress this will while still providing
> openness and freedom for the published databases.
> OK, we are already less than perfect, but it sounds like a fair trade, no ?

Public administrations that act like businesses should be reminded that
they are not businesses.

>> It is absolutely necessary for an European public administration to 
>> waive any database rights they may have in the data collection (or 
>> license those rights ­– IIRC new CC licences cover that avenue). 
>> Otherwise a two tier system will result where European data users
>> will be restricted by database rights, and the American ones will be
>> not (the US does not recognize db rights).
>>
> Thanks for pointing that out as I wasn't aware at all that things could
> be that different outside europe. I have a question about your wording :
> when
> you say waiving rights, do you mean Public Domain only, or do you mean
> any Attribution licence (Open LIcence, odbl, cc-by v4) does the job of
> clarifying the situation ?

In my opinion any licence with a permissive, non-copyleft database
rights licence grant resolves  the issue. ODBL is not such a licence.
Sui generis database rights are a horrible mistake of the European
parliament. In jurisdictions where they do not exist (the US), any
licensee cannot tell whether they have to consider these restrictions or
not: the answer will not be uniform for the US and the answer will not
be uniform for any specific copyleft DB licence, because any disputes
would be solved according to contract law, and whether or not a contract
exists will vary based on the manner the database is accessed, the
manner the licence is presented, and the state of the US user.

In my opinion, the only decent thing to do would be to license the
contents of the database using a free content licence (e.g., CC; I am
assuming that the contents are sufficiently original to warrant
copyright protection, not simply factual information) and waive the
database rights. Free licences should aim to provide legal clarity, not
make things fuzzier than they are.

> http://opendatacommons.org/faq/licenses/#Are_Share-Alike_Provisions_Such_as_Those_in_the_ODbL_Enforceable_In_All_Jurisdictions
> drawing the conclusion that licensing even with a controversial
> share-alike provision is better than nothing since it, at least, clearly
> states your intentions, eventually postponing the decision of its
> applicability in a particular country to be drawn by the relevant court.

The intentions of the licensor are irrelevant here. When most of us make
Free Software, we don't intend it to be used for illegal surveillance,
yet we do not loudly proclaim that we do not intend our software to be
used for illegal surveillance. We recognize that software freedom is the
greater good, and we cannot guard against every wrong.

Similarly, legal clarity throughout the world is a greater good than
ensuring RoI. An arrangement of information should not preclude others
from making use of that same arrangement simply because someone has
invested resources into arranging that information. If editorial control
is exercised and the arrangement is a selection that possesses
originality, then such an arrangement is protected by compilation
copyright anyway. Facts, however, do not receive copyright protection,
and a systematic collection of facts that lacks originality should
receive no protection either. Unfortunately, this is not the case in
Europe; however, this does not mean that these unfortunate restrictions
should be exported to other regions as legal uncertainty and contractual
terms.

> Well, that's a path I'd like to explore a little much further to be able
> to formulate an educated answer. Sure I'm not looking to play the match
> before it occurs, but I'd like some hints.
> 
> Do you think it would be a relevant question to ask to the legal team ?

I think they would be able to explain the relevant factors in the
infringement analysis for the particular case, but without a specific
case, they will not be able to determine the probable outcome.


-- 
Heiki “Repentinus” Ojasild
Fellowship Representative
Free Software Foundation Europe
mailto:repentinus at fsfe.org
xmpp:repentinus at jabber.fsfe.org
http://blogs.fsfe.org/repentinus/