You're right, it is a complicated legal terrain, esp in the US.
But I think most of the entities in the US "making and selling non-open
dbs, from geodata to legal decisions, from chemistry to restaurants"
protect them with contract law and licenses, not with Intellectual
Property restrictions. That is, they are using the methods that Mike
was somewhat resistant to use -- binding people to contractual
agreements that add restrictions not to share the data, rather than
relying on inherent intellectual property protections against copying or
use and then licensing certain uses, as CC and open source licenses
(which rely on copyright) do.
But yeah, it's really complicated. In some cases , there are copyright
protections for databases in aggregate (it can be hard to predict if you
are one of those cases without going to court to see what the judge
says, which is not a great platform for a CC-like solution) -- but in
many/most of those cases taking individual elements out of that data set
and re-using them for your own needs would not be protected by
copyright. As I understand it. Fortunately (hopefully), the CC has
actual lawyers involved who are expert at IP; if they can come up with
some way that legal experts think is defensible, under US law, to
protect general "data" through copyright protections rather than use
contracts (say, click-throughs) that impose new restrictions by
contractual agreement -- I'll be surprised.
On 2/1/2011 8:31 AM, Rufus Pollock wrote:
On 24 January 2011 16:39, Jonathan Rochkind<[email protected]> wrote:
On 1/23/2011 1:32 AM, Mike Linksvayer wrote:
The issue is whether the instrument in question grants permissions which
can be thought of as carve outs from copyright and related restrictions, or
whether the instrument also attempts to create new restrictions which are
not present by default. I assume the latter extremely dangerous until proven
otherwise -- exceptions and limitations ought be increased, not diminished.
Any public license that attempts to work around limitations had better have
a truly massive and clear win for doing so.
I think you're absolutely right here -- but the problem with 'data' is that
in general it is NOT covered by copyright (or, in general, any other IP) in
the U.S. So there is no way to 'carve out exceptions' from existing
protections -- there are no existing protections. The only way to make
restrictions is create new ones which are not present by default.
Jonathan: you've got to be careful here. The US does provide for
various kinds of 'protection' in relation to collections of data
(termed a 'database' -- by definition -- in ODC licenses) -- of course
this protection varies (and e.g. a plain telephone book may not
receive protection) but such protection can exist.
Furthermore no jurisdiction (i know of) provides monopoly protection
in the form of IP rights for individual 'data' facts (e.g. London is
long/lat x/y). It is the variety of meanings of the term 'data -- from
individual (or small number) of items to large collections -- that
makes using the simple 'data' in these discussions very confusing and
why using the term database (for the collection) is probably a good
idea.
This recognition, combined with an agreement with your analysis that it's
very dangerous to try and do this -- is one of the major factors which led
so many entities looking at this before to arrive at the "public domain"
solution.
Maybe but I don't really see why this necessarily leads to a PD
solution (one can advocate a PD solution for many other reasons
though).
There will be no way to apply a copyright-with-license solution to "open
access with restrictions" for data(bases) in the U.S. in the general case,
because in the U.S. in the general case, according to current law,
data(bases) are not covered by copyright. (Unless the contents of the
I don't believe this is correct as an analysis of the law in the US,
at least as I understand it (and IANAL etc :) ), see:
<http://www.opendefinition.org/guide/data/#us>
There is particularly good overview of the case law here:
<http://carrollogos.blogspot.com/2009/02/copyright-in-databases.html>
Summary: yes the US does limit protection for databases in the wake of
Feist but depending on the originality, structure etc the DB may get
protection (see, as a clear example Red Book decision on a listing of
used car prices).
If there are any other experts out there with knowledge of relevant
case-law please send it along (it can also get incorporated in that
guide).
database are copyrightable 'content', in which case existing CC licenses are
perfectly sufficient and there's no need for anything else -- the different
legal status of 'data' in general vs 'content' is exactly why we're having
this discussion). Of course, current law could change -- but we probably
don't want to be pushing for a legal change that takes more data(bases)
_out_ of the commons they are already in in the US, by applying IP controls
to them! That's not what "our side" roots for.
I think we should be a bit cautious about drawing the exact lessons of
the affect of DB rights on the commons.
I remember talking at some length with a world-renowned expert of DB
'protection' and asking why the US did not have a DB law (after all,
sad to say it, most of the time when big holders of info get together
to get more rights they get them ...). His response was that most of
the people with valuable DBs already could get sufficient protection
via access control mechanisms etc and hence didn't see a lot of value
in an explicit DB right -- I also note there are lots of people in the
US making and selling non-open dbs, from geodata to legal decisions,
from chemistry to restaurants.
Rufus
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