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Antw: Re: licensing of library data - article in LIBER quarterly

From: Adrian Pohl <pohl@hbz-nrw.de>
Date: Tue, 22 Mar 2011 10:08:26 +0100
Message-Id: <4D88751A020000140003E375@agrippa.hbz-nrw.de>
To: <public-lld@w3.org>
Hello,

I think Owen gives a very good overview about intellectual property
rights on data (bases) in Europe. I especially agree with the "two areas
of uncertainty" Owen mentions.

Regarding Creative Commons licenses and data bases: I was quite
disturbed when CC published a post which made clear that their licenses
are also appropriate for data[1] as the OKFN always advised against CC
licenses (except CC0) for data and data bases. I expressed my
uncertainty on the od-discuss list and Rufus Pollock provided a clear
answer, see [2].

Adrian

[1] http://creativecommons.org/weblog/entry/26283

[2]
http://lists.okfn.org/pipermail/od-discuss/2011-February/000031.html


 >>>Owen Stephens <owen@ostephens.com> schrieb am Freitag, 18. März
2011 um 15:00:
> 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:HTM

> L
> )
> 
> 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_repo

> rt_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:HTM

> L
> )
> 
> 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:HTM

> L
> )
> 
> 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:31996L

> 0009:EN:HTML>.
>>
>>
>>
>>
>>
>>
Received on Tuesday, 22 March 2011 09:09:26 GMT

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