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Re: licensing of library data - article in LIBER quarterly

From: Owen Stephens <owen@ostephens.com>
Date: Fri, 18 Mar 2011 14:00:58 +0000
Message-ID: <AANLkTimPGvTsbFQ0rQcr4qYXLx8tJcFnWF66CkYy7JF=@mail.gmail.com>
To: public-lld <public-lld@w3.org>
I don't claim any legal expertise but here is my take on the rights conveyed
in the EU directive mentioned by Simon - this is more to generate discussion
than an attempt to be definitive - so please challenge anything that doesn't
look right!

*COPYRIGHT*

Under Directive 96/9/EC of the European Parliament and of the Council of 11
March 1996, databases can be protected by copyright in EU member states.
This right applies to databases which:

"by reason of the selection or arrangement of their contents, constitute the
author's own intellectual creation" (Article 3 of
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML
)

While there are no hard and fast tests for 'originality', a clear example of
a database not considered worthy of Copyright protection is Television
Listings (see
http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf
-
page 8, which in turn references "Judgment of 6 April 1995, Radio Telefis
Eireann (RTE) and Independent Television Publications Ltd (ITP) v.
Commission of the European Communities, Joined cases C-241/91 P and C-242/91
P)".

The current interpretation in Wikipedia suggests further than no database
which aims to be 'complete' ("that is where the entries are selected by
objective criteria") would qualify as "the author's own intellectual
creation" (http://en.wikipedia.org/wiki/Database_Directive).

While I'm not sure the statement from Wikipedia is accurate it would seem
unlikely that most databases of bibliographic data would be seen as
'original' in the sense of the directive.

*SUI GENERIS DATABASE RIGHT*

As well as covering copyright in databases, Directive 96/9/EC also
establishes a 'sui generis database right'. This provides a right:

"for the maker of a database which shows that there has been qualitatively
and/or quantitatively a substantial investment in either the obtaining,
verification or presentation of the contents to prevent extraction and/or
re-utilization of the whole or of a substantial part, evaluated
qualitatively and/or quantitatively, of the contents of that database." (
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML
)

Colloquially this is a 'sweat of the brow' right - essentially this is
saying if creating the database had a cost (i.e. some signficant effort was
involved), the database is automatically protected by the database right
which prevents another party copying all, or a substantial part of the
database. The Television Listing example above is one that would not be
protected by Copyright, but would be protected by this Sui Generis Database
Right.

It is highly likely that any substantial data sets we are dealing with
within Lucero are protected by the Sui Generis Database right, although very
small data sets might be excluded. Certainly we could be pretty sure that
the library catalogue would protected in this way.

The Database right applies for only 15 years from the completion OR first
publication of the database. However, where a database is published, any
significant update to the database (whether through a single action, or
ongoing changes) refresh the term of the database right, starting at 15
years again (see 'Term of Protection' in
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML
)

The main two areas of uncertainty (IMO) are:

   - What might constitute a 'substantial part' of a database
   - What might constitute a 'significant update' of a database in order to
   refresh the 15 year term of the database right

It seems likely to me that case law will provide the only route of
establishing guidance on these issues

Finally just to note that from v3.0 the CC licenses include provision for
both works protected by copyright AND works protected by the EU Sui Generis
Database Right (see
http://wiki.creativecommons.org/images/f/f6/V3_Database_Rights.pdf).
Therefore as far as I can see it is valid to apply CC licenses to
bibliographic datasets, and the outcome is essentially the same whether the
dataset is protected by Copyright or by both Copyright and Database Right


Owen


On Fri, Mar 18, 2011 at 10:42 AM, Jodi Schneider <jodi.schneider@deri.org>wrote:

> Well-said, Simon! I suggest that we crib from what you've written for our
> report. Do you mind?
>
> To that end, I've pasted your comments into the Talk page of our Draft
> issues wiki page:
>
> http://www.w3.org/2005/Incubator/lld/wiki/Talk:Draft_issues_page#Simon_Spero.27s_comments_on_US_rights.2Flicensing_issues
>
>
> <http://www.w3.org/2005/Incubator/lld/wiki/Talk:Draft_issues_page#Simon_Spero.27s_comments_on_US_rights.2Flicensing_issues>
> -Jodi
>
> On 17 Mar 2011, at 20:09, Simon Spero wrote:
> <trim>
>
>
>>
>> http://liber.library.uu.nl/publish/issues/2010-3_4/index.html?000512
>>
> It is important to note that the cited article is published in LIBER : The
> Journal of European Research Libraries.
>
> The article states that "The content of a data base is protected by
> copyright when its producer can prove that he has made substantial
> investments to create and maintain the database (financial, technical and
> human resources)."   (Bérard 2011, p. 326)
>
> This statement  is correct within the EU, as a result of a specific EU
> directive (EC 1996), which granted a sui generis copyright in databases
> under the sweat-of-the-brow  theory.
>
> This statement is not correct as a statement of US law.  Copyright on the
> basis of   Sweat-of-the-brow was rejected by the United States Supreme Court
> in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340
> (1991) <http://www.law.cornell.edu/copyright/cases/499_US_340.htm>.
>
> In summary, the 1976 revisions to the Copyright Act leave no doubt that
> originality, not "sweat of the brow," is the touchstone of copyright
> protection in directories and other fact-based works. Nor is there any doubt
> that the same was true under the 1909 Act. The 1976 revisions were a direct
> response to the Copyright Office's concern that many lower courts had
> misconstrued this basic principle, and Congress emphasized repeatedly that
> the purpose of the revisions was to clarify, not change, existing law. The
> revisions explain with painstaking clarity that copyright requires
> originality, § 102(a); that facts are never original, § 102(b); that the
> copyright in a compilation does not extend to the facts it contains, §
> 103(b); and that a compilation is copyrightable only to the extent that it
> features an original selection, coordination, or arrangement, § 101.
> (*Feist v. Rural, supra)*
>
>
> The claim and grant  of copyright in OCLC's database were made in 1982 and
> 1984 respectively, prior to the decision in Feist.  As Brown (1985) makes
> clear, OCLC's claim was based on "sweat of the brow". It is thus
> questionable the 1984 copyright grant  survived that decision.
>
> It is possible to assert property rights in databases through licensing
> contracts; OCLC's guidelines and contracts do constrain certain uses, but
> explicitly exempt "online access provided to end-user patrons of a library
> in authorized possession of the records".  Guidelines  §II.6.
>
> This exemption was not present in the proposed revisions to the usage
> guidelines; however, since these controls are a matter of contract rather
> than copyright, applying revised guidelines would require requiring
> libraries to impose similar restrictions on all patrons accessing their
> catalogs, since contracts are only binding on the parties privy to those
> contracts.
>
> OCLC has made no statements against interest that I am aware of in regards
> to this issue.
>
> Senior management at OCLC has directly stated that  they consider
> maintaining and supporting both Worldcat and DDC to be a duty to the
> community, and that if there were an open, distributed platform for
> maintaining those databases, that  would not *reduce availability,
> reliability,  and data quality, *they would be more than willing to pass
> on the burden.  Since the copyright in DDC is unquestionably valid (AMERICAN
> DENT. ASSN. v. DELTA DEN. PLANS ASSN., 126 F.3d 977 (7th Cir. 1997)<http://www.law.cornell.edu/copyright/cases/126_F3d_977.htm>,
> bringing up both products in the same breath indicates that the availability
> of copyright is not the deciding  factor.
>
> I am not a lawyer, nor did I stay at a Holiday Inn Express last night.
>
> Simon //  IMHO, The proper purpose of OCLC is to fund OCLC Research :-P
>
> Bérard, Raymond (2011). "Free Library Data?<http://liber.library.uu.nl/publish/issues/2010-3_4/index.html?000512>".
> Liber 20.3/4.
>
> Brown, Rowland C. (1985). “OCLC, Copyright, and Access to Information: Some
> Thoughts”.: Journal of  Academic Librarianship 11.4. P. 197.
>
> EC (1996). Directive 96/9/EC of the European Parliament and of the Council
> of 11 March 1996 on the legal protection of databases<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML>.
>
>
>
>
>
>


-- 
Owen Stephens
Owen Stephens Consulting
Web: http://www.ostephens.com
Email: owen@ostephens.com
Received on Friday, 18 March 2011 14:01:33 GMT

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