Am 13.12.2020 um 22:43 schrieb Edward Bainton:
IMHO the above questions are unanswerable at the moment, the fuzziness with respect to when we consider the database last published is however really not related to the BREXIT question, but more to the provisions in article 10 which I've already pointed to. Would the OSMF successor be required to show that it had made changes as in 10 III to the database after it had been founded and domiciled in the EU? There is really just no way to know and nobody is chomping at the bit to go to court to find out.Ok, so let me rephrase about 'moving the database'.I mean moving the domicile of OSMF, as legal owner of the database. This is being discussed. (See LWG minutes for September)Does anyone have a clear idea what that would do for the protection of the database as it currently stands? Would it be strengthened versus the protection that covers the database at the moment (which is 15 years of UK database right mimicking EU database right, under the Brexit 'withdrawal agreement'. It seems the start-date of those 15 years is unclear).Or does the current database not get any greater protection once the owner is domiciled in the EU?
What does moving domicile to the EU do for the protection of the edits added to the database after domicile has moved into the EU - are these protected under the EU database rights or not? I feel this question reduces to,- are the edits a new database to which EU database rights attach?- or are they insubstantial modifications of a database that came into the EU without EU database rights attached, and therefore the new edits are not covered by EU database right?
The database as a whole is protected, not the edits (outside of potentially collectively being a database themself). Making insubstantial changes to the database doesn't change protection of its contents or newly added or changed data, making substantial changes will create a new database.
Are these questions clear?(Not that OSMF can strictly *move* domicile: it will have to register a subsidiary legal person in an EU country, move its intellectual property into the subsidary, then possibly admit all current OSMF members as members of the subsidary and close the parent (ie, close the current London-registered OSMF. Or an equivalent process.)
If it was easy it would have been done a long time ago. The additional complication is that I expect (who knows what the OSMF board is thinking) that we would want to create a proper membership based organisation which, using a broad brush here, can't be subsidiaries of other legal entities.
Simon
On Sun, 13 Dec 2020 at 20:52, Simon Poole <si...@poole.ch <mailto:si...@poole.ch>> wrote:Am 13.12.2020 um 20:12 schrieb Tom Hummel via legal-talk: > Hi all, > > Am Sonntag, 13. Dezember 2020, 15:58:48 CET schrieb Simon Poole: >> The relevant bit of the directive is in article 11. As you can see the >> rights are dependent on being domiciled in the EU, not on the physical >> location of the "database". I would need to check up on the UK > Do the legal contributors have formed an opinion towards this, already? > > Seeing the Foundation being situated in the UK, and the absence of any agreement acc. to art. 11 III, it looks like the foundation is loosing its entitlement acc. to art. 11 II of the directive. This was the subject of the original message in this thread. The situation post December 31st 2020 is such that protection for sui generis databases will remain for database published before that date in the UK till the protection term runs out. In the case of OSM when the 15 years start is naturally a bit fuzzy, but at least the reworking of the database in 2012 for the licence change was clearly a substantial change that required a significant investment by the OSMF, so it is reasonable to assume that protection will remain at least till September 2026 (IMHO there are more than enough arguments for December 2034, but I suspect that will be moot by 26). Simon > > German courts adhere to the „modified seat of management rule“ since 2002 (BGH NJW 2002, 3539), meaning some capacity to sue and be sued. OTOTH liability for associates is personal and unrestricted. > > For Germany, it looks like there is some entitlement on behalf of FOSSGIS. The governing agreement (OpenStreetMap Foundation Local Chapters Agreement) does not grant any derivative rights without additional agreement, § 7.1 Conduct. > > Am I missing something? > > Tom > > > > _______________________________________________ > legal-talk mailing list > legal-talk@openstreetmap.org <mailto:legal-talk@openstreetmap.org> > https://lists.openstreetmap.org/listinfo/legal-talk <https://lists.openstreetmap.org/listinfo/legal-talk> _______________________________________________ legal-talk mailing list legal-talk@openstreetmap.org <mailto:legal-talk@openstreetmap.org> https://lists.openstreetmap.org/listinfo/legal-talk <https://lists.openstreetmap.org/listinfo/legal-talk> _______________________________________________ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
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