Forwarding what accidentally went offlist back onlist. Apologies.
Thanks Jordan Begin forwarded message: > From: Jordan S Hatcher <[email protected]> > Date: 14 June 2011 21:38:53 GMT+01:00 > To: "Brehm, Elke" <[email protected]> > Subject: Re: [odc-discuss] Does ODC by v1.0 contain a share-alike clause? > > Hi Elke > > Thanks for the email. Comments inline. > On 7 Jun 2011, at 12:55, Brehm, Elke wrote: > >> Dear all >> I would like to discuss the following points with you. Since I am new to >> this list I do not know if these issues have been discussed already J. >> >> Clause 4.2a of the license requires that Derivative Databases(as defined in >> the license) must be licensed under this license. > > I disagree with this assertion, as set out below: >> >> The definition of "Collective Database" in 1.0 only applies to a newly >> formed database made up of several databases (containing the licensed >> database in unmodified form) and explicitly excludes all modifications of >> the licensed database which fulfil the requirements of the definition for >> "Derivative Database", which also comprises the extraction or reutilisation >> of the "whole or a Substantial part of the Contents in a new Database". >> >> Would you agree, that as a consequence modifications falling under the >> definition of "Collective Database" can be licensed under a different >> license, whereas modifications falling under the definition "Derivative >> Database" must be licensed under the ODC by v. 1.0? > > A collective database can always be licensed under whatever the collective > database rightsholder wants. However the ODC-BY database within that > collective database must be ODC-BY licensed. A parallel example would be a > picture in a newspaper. The newspaper photo can have a separate copyright to > the article that accompanies. it, and the publisher can have a copyright over > the collection. > > Same with derivative databases, the portion of the derivative database that > is under the ODC-BY license remains ODC-BY licensed. > > >> Is it correct to assume, that the definition Derivative Database only >> applies, if the licensed database still constitutes the main element of the >> modified object? > > I don't know about a test around "the main element", however I think it would > be true to say that if there was no copying from the database then there can > be no infringement in a copyright sense. Also the local law may well apply > some sort of de minimis test in applying the license (and thus IP law and > contract) to any copying. > >> Does the definition of "Derivative Database" (and in consequences 4.2a of >> the license) also apply if a Substantial part of the licensed Database is >> extracted and united with other independent databases? > > I'm not quite sure what you mean in the context of the Database/Contents > distinction within the license. > > "Substantial" refers to the Contents: > > ""Substantial" – Means substantial in terms of quantity or quality or a > combination of both. The repeated and systematic Extraction or > Re-utilisation of insubstantial parts of the Contents may amount to the > Extraction or Re-utilisation of a Substantial part of the Contents." > > Similar to the above, at the "Database layer, whether someone has copied is a > question of fact (and law as to what is protectable).l > >> In consequence this license would contain a limited share alike clause >> regarding the Derivative Databases. > > > Hopefully the above helps explain things. > >> >> An additional question: What if the rights granted in the license do not >> exist in a certain country, because a database does not fulfil the >> conditions to merit copyright protection and a Database right does not exist >> (such as for example USA)? > > Just to note, databases are potentially protectable in the United States > under copyright for their selection and arrangement. > > So what happens when a database is clearly and unequivocally not protectable > under copyright or database rights? That's the reason that the ODC licenses > are also contracts. > > If it is not unequivocally unprotectable by copyright and database rights, > then (just as with open source licenses) everyone has an option: (1) take the > database under the liberal license offered and comply with it; or (2) try to > fight it out in a court > > Anywho, hope this helps. > > Thanks! > > Jordan > >> >> Thanks for your help. >> Elke >> >> >> ______________________________________________ >> Elke Brehm, LL.M. >> Project Manager SCOAP3-DH / Legal Affairs >> >> German National Library of Science and Technology >> Welfengarten 1B, 30167 Hannover, Germany >> Tel.: +49 (0)511/762-19473, Fax: +49 (0)511/762-2686 >> >> mailto: [email protected] >> http://www.tib-hannover.de/ >> >> _______________________________________________ >> odc-discuss mailing list >> [email protected] >> http://lists.okfn.org/mailman/listinfo/odc-discuss > > ____ > Mr. Jordan S Hatcher, JD, LLM > > More at: <http://www.jordanhatcher.com> > Co-founder: <http://www.opendatacommons.org> > Open Knowledge: <http://www.okfn.org/> > ____ Mr. Jordan S Hatcher, JD, LLM More at: <http://www.jordanhatcher.com> Co-founder: <http://www.opendatacommons.org> Open Knowledge: <http://www.okfn.org/> _______________________________________________ odc-discuss mailing list [email protected] http://lists.okfn.org/mailman/listinfo/odc-discuss
