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Copyright not applicable to geodata?

April 1, 2007 in Ideas and musings, Open Geodata

Over the last couple of weeks, I’ve heard new questions and opinions about open licensing of geographic information, coming from several different directions. Specifically:

  • Local and regional authorities in Italy and in New Zealand among others, have been looking into whether it is appropriate to use a Creative Commons license for geodata.
  • Richard Fairhurst of the OpenStreetmap project are attempting to find out whether database right, rather than CC-style copyright, is a potential option for open licensing its data.
  • Chris Holmes, having submitted repackaged public domain data with service configurations, the lot under a CC-SA license, to the OSGeo geodata repository, has been seeking informal legal advice from Science Commons, the data licensing arm of Creative Commons.

Chris’s email to the osgeo/geodata list offers some context and the conclusion that copyright-based licenses are inapplicable to geographic information in its state as a “collection of facts”. CC, by this reading, just does not apply to geographic data (though it may apply to a rendered map as a creative expression of the underlying facts). In using a copyright-based license for open data, we risk imposing constraints that are new and unenforceable.

… the Science Commons initiative is about getting
science data more available, which unlike geospatial data is something
that traditionally has been available for all, only published papers about
the data were under copyright. So they would be very hesitant to create a
regime for data licensing that would make it easier for people to put more
restrictions on their data. They are launching a ‘facts are free’
campaign soon to get across to the world that one can’t copyright
scientific data.

The Science Commons FAQ on databases and copyright goes into more detail on to-CC-or-not-to-CC for “factual” information. It mentions that the Creative Commons licenses specific to Belgium and the Netherlands include the database right, but other territory-specific European CC licenses do not. If a Belgium-specific OpenStreetmap clone were to use this license, could it be safely recombined with the global body of open geodata, or not?

Richard pointed to this cogent paper going through some of the relevant case law for database right as it impacts geodata. I’m reminded of James Boyle’s classic FT article on the European Commission’s assessment of the negative economic impact of database right in Europe.

  • What does all this imply about the use of Crown Copyright to cover state-collected geographic information in the UK, Canada and elsewhere?
  • If a CC- or GPL- derived, copyright-based license is not apt for geodata, what standard forms of “click-use contract” can be recommended now to state agencies looking to provide open access to geodata?

  • http://okblogfarm.org/members/admin/ Open Knowledge

    There are two separate questions here:

    a) Are there rights in data you can license if you wanted to (if not there is no point creating a license as it is not enforceable)

    b) If there are rights is a CC license suitable.

    The answer to (a) is that it depends on your jurisdiction. In particular because of the Feist decision in the US it may well be the case that there are no IP rights in large bodies of data (e.g. geodata). However in many other jurisdictions — the EU in particular — it is most definitely the case that there are IP rights in the data and thus licensing makes sense.

    Coming to (b) the simple answer is that most CC-licenses, with a few special exceptions such as the Dutch license, do not really deal with data well. Nevertheless one could see the CC-licenses as a good interim solution as they express all the relevant concepts even if they are not perfectly tailored to the subject matter. The other alternative is simply to take a bit of time to make a new license or mod one of the existing CC ones to do what you want (as you may recall Jo, Giles Lane proposed a redraft of the CC licenses specifically for geodata about 2 years ago which we now host: http://www.okfn.org/geo/access.html#license).

  • Harlan Onsrud

    Dear Jo, et. al.,

    Let me respond from a U.S. perspective to keep the discussion bounded in my response. I quote below from an article that Jim Campbell and I have recently submitted to the CODATA Journal. We argue that you can eliminate the need to address the copyrightability of factual compilations on a case by case basis by simply always licensing your data compilations to the public domain or commons whether a court would ultimately find them copyrightable or not. The poem “Fleas” or “Lines on the Antiquity of Microbes” is less than three words long yet was completely protected by copyright law until it entered the public domain. We argue that courts will support similar full protection in the selection, coordination and arrangement of even a very few data elements.

    Quote from an upcoming article:

    “A simple compilation of facts alone, absent originality in selection or arrangement, does not merit copyright protection in the U.S. (or most other countries). There is, Justice O’Connor pointed out, a clear difference between “discovery” and “authorship.” A census taker, for example, who records how many people live in a building is simply discovering and recording a fact – there is no originality hence no protectable authorship involved. The only source of originality, from a copyright perspective, lies in the way that those facts are creatively selected or arranged.

    But where is the line that separates the absence of originality from the required level of even a “slight amount” of creativity that will trigger copyright protection? A commons of scientific and technical data infrastructure cannot know. It must leave the choice of whether to assert copyright to the contributor and should offer the contributor a limited set of options for making his or her work available if asserting copyright. Further, if reasonable people might disagree as to whether a slight amount of creativity might exist in the selection, coordination or arrangement of data in a dataset, the need to resolve the question is eliminated by creators conveying to the world any rights they may have in the dataset through a public domain or open access license (e.g. creative commons licenses).”

    One can distinguish the selection, coordination and arrangement of data in a database from that of data in a data file but ultimately we argue that our approach resolves the uncertainty. When in doubt, license the scientific and technical data to the public domain … or if you really want to retain attribution, to the commons.

    P.S. The poem is “Adam had’em.”

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  • Mike Smith

    As a member who fed into the GRADE report (by Charlotte Waelde) on database right and copyright for geodata, I subsequently blogged (http://www.journalofmaps.com/cgi-bin/blosxom.cgi/GIS/GRADE_Waelde.html) on the salient points that Charlotte raises in the report. Regardless of whether you believe geodata should be open/CC, Charlotte writes that copyright cannot be claimed and that database right is the one the subsists (for OS Mastermap in this instance) in the UK. This has important implications for how Mastermap is licensed in the UK. Of course, the big debate will be whether there is agreement that database right, rather than copyright, is appropriate.

  • http://okblogfarm.org/members/jwalsh/ jwalsh

    I saw a couple of interesting related links today. One was a blog entry about a Guardian article covering the “database right affects copyright for Ordnance Survey data” angle

    http://www.allpointsblog.com/archives/2708-Report-OS-Data-Not-as-Copyrighted-as-We-Thought.html

    Another blog post discussing the implications of the EDINA/GRADE paper that Richard cited: http://www.journalofmaps.com/cgi-bin/blosxom.cgi/GIS/GRADE_Waelde.html

    • http://relationshipadvicereport.com Karen Holland

      I noted from your first link the European Database Directive states, “allows users to copy information, provided that it is not a “substantial” part of a database”. It always goes a bit wrong when vague words like “substantial” are used. What counts as substantial? It’s too subjective.

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