Re: [OSM-legal-talk] Someone already had a look at the BingTermsofUse?
Anthony o...@inbox.org wrote None of that even shows that German courts use the term derivative work, let alone define tracings of aerial photographs to be under the definition of that term. It's extremly unlikely that a German court would use English :-). But in the specific case they did considered the derived work, the German equivalent of a derived work. In the absence of specific case law, naturally nobody will make any definite statement (just as I believe the discussion here http://wiki.openstreetmap.org/wiki/Copyright_in_deriving_from_aerial_photography doesn't), but you can compare similar cases. PS: and the relevance is that very likely the majority of bing tracing right now is going on in -Germany- And that matters why, exactly? Because: If you go back to the statement that I was responding to, you'll see that it said that the Microsoft license makes no grants of rights to publish derived works. Does MS even have the rights to grant such a license in Germany? Simon ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Someone already had a look at the BingTermsofUse?
On Sun, Dec 19, 2010 at 4:32 PM, Simon Poole si...@poole.ch wrote: Anthony o...@inbox.org wrote None of that even shows that German courts use the term derivative work, let alone define tracings of aerial photographs to be under the definition of that term. It's extremly unlikely that a German court would use English :-). Well yeah, exactly. When I say that probably...tracing a map doesn't create a derived work, I certainly don't preclude the fact that some German law might impose some copyright-like, but not actually copyright, restrictions on the results of such tracing. Though I have yet to see any evidence that it does. But in the specific case they did considered the derived work, the German equivalent of a derived work. What case are you talking about? It wasn't one where someone was tracing an aerial photograph, was it? What is the German equivalent of a 'derived work'? And, if you're saying it's different, then how can you say it's equivalent? It's quite a leap to go from the fact that aerial photographs are protected by copyright law, which is probably true even here in the United States (with the note that aerial photographs are not the same as satellite photographs), to saying that a tracing of an aerial photograph is a derivative work. PS: and the relevance is that very likely the majority of bing tracing right now is going on in -Germany- And that matters why, exactly? Because: If you go back to the statement that I was responding to, you'll see that it said that the Microsoft license makes no grants of rights to publish derived works. Does MS even have the rights to grant such a license in Germany? Do they have the rights to grant such a license in the US? I doubt it. If you're concerned that tracing aerials might create a derived work (which I'm not), then you need a license from the copyright owner of the image, which is probably not Microsoft. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Someone already had a look at the BingTermsofUse?
On 19/12/10 21:52, Anthony wrote: What is the German equivalent of a 'derived work'? And, if you're saying it's different, then how can you say it's equivalent? Your local copyright law almost certainly mentions adaptation rather than derived work. Your referring to derived work is therefore the use of an equivalent concept in your own legal system. It's quite a leap to go from the fact that aerial photographs are protected by copyright law, which is probably true even here in the United States (with the note that aerial photographs are not the same as satellite photographs), to saying that a tracing of an aerial photograph is a derivative work. If there isn't a copyright in the original, work that copies from it cannot infringe that copyright because it doesn't exist. If there is a copyright then producing a recognisable copy of some part of it will, modulo fair dealing (or fair use, which is its equivalent concept) it will infringe on that copyright. Tracing in the tracing paper sense will certainly do this. It was possible to infringe on copyright before digital copying existed... Now if you're talking about tracing ways from photos I would agree, philosophically, that it is a leap to regard those as derivatives. But if it's a leap the courts have made or that companies with more lawyers than OSM've got have made then that's what we have to deal with. If you're concerned that tracing aerials might create a derived work (which I'm not), then you need a license from the copyright owner of the image, which is probably not Microsoft. You need a licence from someone with sufficient rights to grant you that licence. Which in this case is Microsoft. - Rob. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Someone already had a look at the BingTermsofUse?
On Sun, Dec 19, 2010 at 5:30 PM, Rob Myers r...@robmyers.org wrote: On 19/12/10 21:52, Anthony wrote: What is the German equivalent of a 'derived work'? And, if you're saying it's different, then how can you say it's equivalent? Your local copyright law almost certainly mentions adaptation rather than derived work. Your referring to derived work is therefore the use of an equivalent concept in your own legal system. You mean the US legal system? The US code uses the term derivative work (http://www.copyright.gov/title17/92chap1.html#103), as does much of the case law. It's quite a leap to go from the fact that aerial photographs are protected by copyright law, which is probably true even here in the United States (with the note that aerial photographs are not the same as satellite photographs), to saying that a tracing of an aerial photograph is a derivative work. If there isn't a copyright in the original, work that copies from it cannot infringe that copyright because it doesn't exist. Sure, but the reverse is not true. There can be copyright in the original, yet a work that copies (non-copyright parts) from it do not infringe that copyright. That is probably the situation with OSM-style tracing of aerial photographs. If there is a copyright then producing a recognisable copy of some part of it will, modulo fair dealing (or fair use, which is its equivalent concept) it will infringe on that copyright. I'm not sure if we disagree on substance, or if it's just a terminology thing. How would you reconcile that statement with Bauman v Fussell? There was copyright in the original. A recognisable copy of some part of the original was made. Would you call it a case of fair dealing? Now if you're talking about tracing ways from photos I would agree, philosophically, that it is a leap to regard those as derivatives. Yes, that is what I was talking about. Isn't that what this thread is about? But if it's a leap the courts have made or that companies with more lawyers than OSM've got have made then that's what we have to deal with. Is it a leap the courts have made? If it's just something being claimed by companies with more lawyers than OSM've got, then how should we deal with it? If you're concerned that tracing aerials might create a derived work (which I'm not), then you need a license from the copyright owner of the image, which is probably not Microsoft. You need a licence from someone with sufficient rights to grant you that licence. Which in this case is Microsoft. What makes you think Microsoft has sufficient rights to grant that license? ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
