[Aust-NZ] Anyone able to get/offer proper legal advice over ODBL? [SEC=UNCLASSIFIED]

[Bruce Bannerman]

Roger,

Many thanks.

Its good to get an authoritative response.

Bruce


________________________________________
From: Roger Longhorn [ral at alum.mit.edu]
Sent: Tuesday, 8 December 2009 9:08 PM
To: Bruce Bannerman
Cc: aust-nz at lists.osgeo.org
Subject: Re: [Aust-NZ] Anyone able to get/offer proper legal advice over        ODBL? [SEC=UNCLASSIFIED]

Bruce,

The EU adopted a legally enforceable Directive on the Protection of
Databases (attached) in 1996 which came into full operation in 1998 -
and now applies to all 27 EU Member States - so we now have a decade of
experience with it. See
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML
for the Directive. Member States enacted their own national legislation
to implement the Directive, which was completed many years ago.

Such protection does not exist outside the EU (generally), although
Article 10 of TRIPS - the AGREEMENT ON TRADE-RELATED ASPECTS OF
INTELLECTUAL PROPERTY RIGHTS - of the World Trade Organisation (WTO),
does protect both computer programmes and 'compilations of data'
(http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm#generalprovisions):

====
Article 10 - Computer Programs and Compilations of Data

1. Computer programs, whether in source or object code, shall be
protected as literary works under the Berne Convention (1971).

2. Compilations of data or other material, whether in machine readable
or other form, which by reason of the selection or arrangement of their
contents constitute intellectual creations shall be protected as such.
Such protection, which shall not extend to the data or material itself,
shall be without prejudice to any copyright subsisting in the data or
material itself.

<end extract>

The Berne Convention for the Protection of Literary and Artistic Works
(administered by WIPO - http://www.wipo.int/treaties/en/ip/berne/),
while protecting 'maps' (listed specifically in Article 2), also
protects 'collections' (as defined below), but this does not cover
databases, especially electronic databases:

(5) Collections of literary or artistic works such as encyclopaedias and
anthologies which, by reason of the selection and arrangement of their
contents, constitute intellectual creations shall be protected as such,
without prejudice to the copyright in each of the works forming part of
such collections.
<ends extract>

WIPO (World Intellectual Property Organisation) mounted initiatives over
the past 15 years to extend coverage to databases, especially after the
EU's adoption of its database protection Directive in 1996, creating
what many consider to be an uneven playing field between the (now) 27 EU
Member States and the rest of the world - but these have always been
stopped due to refusal of certain main signatories (such as the USA) to
agree to such an amendment.

So, yes, the databases of Ordnance Survey - and any other organisation
based in the EU - are protected by national law, harmonized across
Europe by the Directive. Specifically in the UK, the Directive is
enacted and enforced via "The Copyright and Rights in Databases
Regulations of 1997", (Statutory Instrument SI 3032).

Coverage (as per the Directive) is for 15 years and is extended
automatically based on how often a database is updated. Since OS claims
that their primary datasets are updated up to 50,000 times daily (the
lowest reported figure is 5,000), which is purported to involve new
investment in the database, then these datasets are effectively
protected in perpetuity, as per Article 10 of the Directive:

Article 10 - Term of Protection (Database Protection Directive)

3. Any substantial change, evaluated qualitatively or quantitatively, to
the contents of a database, including any substantial change resulting
from the accumulation of successive additions, deletions or alterations,
which would result in the database being considered to be a substantial
new investment, evaluated qualitatively or quantitatively, shall qualify
the database resulting from that investment for its own term of protection.
<ends>

Sorry to go on for so long - but you asked for it! (See you in April.)

Kind regards

Roger
ral at alum.mit.edu
roger at geoconnexion.com


Bruce Bannerman wrote:
>> The assumption here I think is based on US law where a
>> database of facts aren't copyrightable.
>>
>>
>
> I vaguely recall a study from the UK based on Ordnance Survey data in a database that came up with the argument that data in a database could be subject to copyright.
>
> RAL, would you care to comment?
>
>
> Bruce_______________________________________________
> Aust-NZ mailing list
> Aust-NZ at lists.osgeo.org
> http://lists.osgeo.org/mailman/listinfo/aust-nz
>
>
>