Re: [OSM-legal-talk] Brexit & EU database rights

[Simon Poole]

https://www.gov.uk/guidance/sui-generis-database-rights-after-the-transition-period 
is the UKs governments guidance on this.  On re-reading I agree that the 
withdrawal agreement itself is rather ambiguous, and there is a lot of 
conflicting advice on the matter, see for example 
https://www.google.com/url?sa=t=j==s=web==rja=8=2ahUKEwiL38fux83tAhXNCuwKHYHXAjgQFjABegQIAhAC=https%3A%2F%2Fwww.herbertsmithfreehills.com%2Ffile%2F37041%2Fdownload%3Ftoken%3DOr7GPtMf=AOvVaw0jZK9j_3jP6xJNsnbzaKJ5 
or 
https://www.gevers.eu/en/tb8PacLcwp/brexit--copyright-and-sui-generis-database-right.php 
that states just like the UK governments guidance that the rights will 
continue on post end of the transition period in the EEA.


I suspect clarity on this could only come from the official EU side of 
things, not that it really matters as in any case action is required by 
the OSMF.


Simon

Am 14.12.2020 um 13:34 schrieb Tom Hummel:

Hi Simon,

My understanding is that 58.2 covers the rights of UK based entities, 
with other words it extends the directives article 11 to cover UK 
residents and entities.
From 58 II: “The following persons and undertakings shall be deemed to 
comply” … (basically) people and entities in the UK.


Does “deem to comply” mean, those persons have to comply? It reads as 
if the people mentioned in 58 II are subject to an obligation (the 
duty to obey the rights from 58 I) not the beneficiary. 58 seems to 
talk about EU entities that are, essentially, UK based or active 
within the UK.


Art 58 in general seems to be concerned with continuing EU database 
law within the the UK for EU subjects, not the other way around: 
“holder of a right in relation to a database […] maintain an 
enforceable intellectual property right in the United Kingdom, under 
the law of the United Kingdom”.


Meaning, OSMF, or any EU entity ftm, continues to hold database rights 
within the UK, but not within the EU – only under more general 
provisions. Not even art. 4 TRIPs seems to grant any more rights, 
since lack of any other more favorable agreements among trips members.


I have found an english legal opinion:
===
https://www.womblebonddickinson.com/uk/insights/articles-and-briefings/brexit-and-database-rights


Accordingly, in the event no agreement is reached […] whereby:

· the UK will continue to recognise Database Right of EU (and UK) 
qualifiers so they will not lose rights to which they were entitled 
in the UK on the date of withdrawal


· the EU will cease to recognise Database Right of UK qualifiers in 
respect of databases created *before* the date of withdrawal.

Thanks for your courtesy!

Tom









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Re: [OSM-legal-talk] Brexit & EU database rights

[Simon Poole]

My understanding is that 58.2 covers the rights of UK based entities, with 
other words it extends the directives article 11 to cover UK residents and 
entities.

Am 14. Dezember 2020 00:11:25 MEZ schrieb Tom Hummel via legal-talk 
:
>Simon,
>
>sorry for reopening.
>
>> 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 
>
>Thanks, I see you are referring to art. 58 of the withdrawal agreement
>https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1580206007232=CELEX%3A12019W/TXT%2802%29
>
>The UK government explains this as follows: “Database rights that exist
>in the UK or EEA before 1 January 2021 (whether held by UK or EEA
>persons or businesses) *will continue* to exist in the UK *and EEA* for
>the rest of their duration.”
>
>As far as I understand the article, however, there is protection within
>the UK for European entities. Yet, I can’t find a provision which
>covers the issue vice versa, i.e. an UK entity would loose protection
>within EEA.
>
>I think the accepted term for this is ’reciprocity gap’. I am not sure
>if my understanding of english legal communications is good enough for
>this.
>
>The 15y period was not intended to provide protection against change of
>law. I suppose it’s a protection of investment for a certain amount of
>time. Without EU membership the premises for the law changes. According
>to this, OSMF might loose standing in respect to the directive in
>german courts. (EEA too?)
>
>Thanks
>
>Tom
>
>
>
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Re: [OSM-legal-talk] Brexit & EU database rights

[Tom Hummel via legal-talk]

Simon,

sorry for reopening.

> 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 

Thanks, I see you are referring to art. 58 of the withdrawal agreement
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1580206007232=CELEX%3A12019W/TXT%2802%29

The UK government explains this as follows: “Database rights that exist in the 
UK or EEA before 1 January 2021 (whether held by UK or EEA persons or 
businesses) *will continue* to exist in the UK *and EEA* for the rest of their 
duration.”

As far as I understand the article, however, there is protection within the UK 
for European entities. Yet, I can’t find a provision which covers the issue 
vice versa, i.e. an UK entity would loose protection within EEA.

I think the accepted term for this is ’reciprocity gap’. I am not sure if my 
understanding of english legal communications is good enough for this.

The 15y period was not intended to provide protection against change of law. I 
suppose it’s a protection of investment for a certain amount of time. Without 
EU membership the premises for the law changes. According to this, OSMF might 
loose standing in respect to the directive in german courts. (EEA too?)

Thanks

Tom



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Re: [OSM-legal-talk] Brexit & EU database rights

[Simon Poole]

Am 13.12.2020 um 22:43 schrieb Edward Bainton:

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?


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.


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 > 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
>
>
>
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Re: [OSM-legal-talk] Brexit & EU database rights

[Edward Bainton]

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?

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.)

On Sun, 13 Dec 2020 at 20:52, Simon Poole  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
> >
> >
> >
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Re: [OSM-legal-talk] Brexit & EU database rights

[Simon Poole]

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



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Re: [OSM-legal-talk] Brexit & EU database rights

[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.

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



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Re: [OSM-legal-talk] Brexit & EU database rights

[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 
equivalent, but it likely requires the same. Outside of the UK and EU 
(possibly including Russia), we rely on conventional copyright for 
creative works* and contract law.


Simon

* yes, I'm fully aware of the problematic bit here.

Am 13.12.2020 um 10:21 schrieb Edward Bainton:
Thank you for the link, now read. All you say on substantial changes 
makes sense.


So if we move the database into the EU, are we confident it would be 
all be protected under those terms? Does the hiatus from 1 Jan 2021 
cause any difficulties? I'm reading the bit that says protection runs 
from the date of completion of the database - which is either already 
done, or never to be achieved. Either way I'm struggling to be sure 
that a database imported into the EU (perhaps considered complete on 
the day of import?) would have the protection.


Or do we need two databases - the UK-based one that is protected under 
the legacy agreement (until the UK Parliament decides otherwise, I 
suppose), and the new EU one, and the servers work off them in tandem?


On Thu, 10 Dec 2020 at 23:18, Simon Poole > wrote:


To answer the questions caveat there is no relevant court
decisions that I know of, so this is all likely untested:
insubstantial changes to a database do not create a new one, but
substantial changes do. Where the line is drawn, or better where
the OSMF draws the line, is currently open. See article 10
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009


Simon

Am 10.12.2020 um 22:11 schrieb Edward Bainton:

A pleasure meeting you all at LWG this evening.

I saw Brexit in the minutes for September
"At the end of year we won't be losing database rights immediately."

General guidance I've seen appears to say:
- database rights accrued before 2021-01-01 persist (as I've seen
discussed in minutes)
- database rights accrued from 2021-01-01 will exist only in the
UK (if at all: I can't see any enabling legislation after a quick
look, and this may have gone into the Govt's "later" tray - so
copyright may be the only protection).

The last point suggests to me that any edits made after
2020-01-01 will have less protection than so far has been the case.

Is that your understanding? Or is the database as a whole
protected because the architecture has been built, and subsequent
edits are protected modifications of an already-protected creation?

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Re: [OSM-legal-talk] Brexit & EU database rights

[Tom Hughes via legal-talk]

The primary database and one of the mirrors are already
in the EU and have been for several years.

There are currently two other mirrors both of which
are in the UK.

Tom

On 13/12/2020 09:21, Edward Bainton wrote:
Thank you for the link, now read. All you say on substantial changes 
makes sense.


So if we move the database into the EU, are we confident it would be all 
be protected under those terms? Does the hiatus from 1 Jan 2021 cause 
any difficulties? I'm reading the bit that says protection runs from the 
date of completion of the database - which is either already done, or 
never to be achieved. Either way I'm struggling to be sure that a 
database imported into the EU (perhaps considered complete on the day of 
import?) would have the protection.


Or do we need two databases - the UK-based one that is protected under 
the legacy agreement (until the UK Parliament decides otherwise, I 
suppose), and the new EU one, and the servers work off them in tandem?


On Thu, 10 Dec 2020 at 23:18, Simon Poole > wrote:


To answer the questions caveat there is no relevant court decisions
that I know of, so this is all likely untested: insubstantial
changes to a database do not create a new one, but substantial
changes do. Where the line is drawn, or better where the OSMF draws
the line, is currently open. See article 10
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009


Simon

Am 10.12.2020 um 22:11 schrieb Edward Bainton:

A pleasure meeting you all at LWG this evening.

I saw Brexit in the minutes for September
"At the end of year we won't be losing database rights immediately."

General guidance I've seen appears to say:
- database rights accrued before 2021-01-01 persist (as I've seen
discussed in minutes)
- database rights accrued from 2021-01-01 will exist only in the
UK (if at all: I can't see any enabling legislation after a quick
look, and this may have gone into the Govt's "later" tray - so
copyright may be the only protection).

The last point suggests to me that any edits made after 2020-01-01
will have less protection than so far has been the case.

Is that your understanding? Or is the database as a whole
protected because the architecture has been built, and subsequent
edits are protected modifications of an already-protected creation?

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Re: [OSM-legal-talk] Brexit & EU database rights

[Edward Bainton]

Thank you for the link, now read. All you say on substantial changes makes
sense.

So if we move the database into the EU, are we confident it would be all be
protected under those terms? Does the hiatus from 1 Jan 2021 cause any
difficulties? I'm reading the bit that says protection runs from the date
of completion of the database - which is either already done, or never to
be achieved. Either way I'm struggling to be sure that a database imported
into the EU (perhaps considered complete on the day of import?) would have
the protection.

Or do we need two databases - the UK-based one that is protected under the
legacy agreement (until the UK Parliament decides otherwise, I suppose),
and the new EU one, and the servers work off them in tandem?

On Thu, 10 Dec 2020 at 23:18, Simon Poole  wrote:

> To answer the questions caveat there is no relevant court decisions that I
> know of, so this is all likely untested: insubstantial changes to a
> database do not create a new one, but substantial changes do. Where the
> line is drawn, or better where the OSMF draws the line, is currently open.
> See article 10
> https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009
>
> Simon
> Am 10.12.2020 um 22:11 schrieb Edward Bainton:
>
> A pleasure meeting you all at LWG this evening.
>
> I saw Brexit in the minutes for September
> "At the end of year we won't be losing database rights immediately."
>
> General guidance I've seen appears to say:
> - database rights accrued before 2021-01-01 persist (as I've seen
> discussed in minutes)
> - database rights accrued from 2021-01-01 will exist only in the UK (if at
> all: I can't see any enabling legislation after a quick look, and this may
> have gone into the Govt's "later" tray - so copyright may be the only
> protection).
>
> The last point suggests to me that any edits made after 2020-01-01 will
> have less protection than so far has been the case.
>
> Is that your understanding? Or is the database as a whole protected
> because the architecture has been built, and subsequent edits are protected
> modifications of an already-protected creation?
>
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Re: [OSM-legal-talk] Brexit & EU database rights

[Edward Bainton]

*sigh

No, it's not remotely clear!

Thank you.


On Thu, 10 Dec 2020, 23:02 Simon Poole,  wrote:

> Legal talk is not the LWG list if that isn't clear, that is
> le...@osmfoundation.org
>
> Simon
> Am 10.12.2020 um 22:11 schrieb Edward Bainton:
>
> A pleasure meeting you all at LWG this evening.
>
> I saw Brexit in the minutes for September
> "At the end of year we won't be losing database rights immediately."
>
> General guidance I've seen appears to say:
> - database rights accrued before 2021-01-01 persist (as I've seen
> discussed in minutes)
> - database rights accrued from 2021-01-01 will exist only in the UK (if at
> all: I can't see any enabling legislation after a quick look, and this may
> have gone into the Govt's "later" tray - so copyright may be the only
> protection).
>
> The last point suggests to me that any edits made after 2020-01-01 will
> have less protection than so far has been the case.
>
> Is that your understanding? Or is the database as a whole protected
> because the architecture has been built, and subsequent edits are protected
> modifications of an already-protected creation?
>
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Re: [OSM-legal-talk] Brexit & EU database rights

[Simon Poole]

To answer the questions caveat there is no relevant court decisions that 
I know of, so this is all likely untested: insubstantial changes to a 
database do not create a new one, but substantial changes do. Where the 
line is drawn, or better where the OSMF draws the line, is currently 
open. See article 10 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009


Simon

Am 10.12.2020 um 22:11 schrieb Edward Bainton:

A pleasure meeting you all at LWG this evening.

I saw Brexit in the minutes for September
"At the end of year we won't be losing database rights immediately."

General guidance I've seen appears to say:
- database rights accrued before 2021-01-01 persist (as I've seen 
discussed in minutes)
- database rights accrued from 2021-01-01 will exist only in the UK 
(if at all: I can't see any enabling legislation after a quick look, 
and this may have gone into the Govt's "later" tray - so copyright may 
be the only protection).


The last point suggests to me that any edits made after 2020-01-01 
will have less protection than so far has been the case.


Is that your understanding? Or is the database as a whole protected 
because the architecture has been built, and subsequent edits are 
protected modifications of an already-protected creation?


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Re: [OSM-legal-talk] Brexit & EU database rights

[Simon Poole]

Legal talk is not the LWG list if that isn't clear, that is 
le...@osmfoundation.org


Simon

Am 10.12.2020 um 22:11 schrieb Edward Bainton:

A pleasure meeting you all at LWG this evening.

I saw Brexit in the minutes for September
"At the end of year we won't be losing database rights immediately."

General guidance I've seen appears to say:
- database rights accrued before 2021-01-01 persist (as I've seen 
discussed in minutes)
- database rights accrued from 2021-01-01 will exist only in the UK 
(if at all: I can't see any enabling legislation after a quick look, 
and this may have gone into the Govt's "later" tray - so copyright may 
be the only protection).


The last point suggests to me that any edits made after 2020-01-01 
will have less protection than so far has been the case.


Is that your understanding? Or is the database as a whole protected 
because the architecture has been built, and subsequent edits are 
protected modifications of an already-protected creation?


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