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Copyrightability of XML Schemas (and their Valid Instances)?

From: Joseph Reagle <reagle@w3.org>
Date: Fri, 16 May 2003 18:29:20 -0400
To: www-archive@w3.org
Message-Id: <200305161829.20092.reagle@w3.org>

----------  Forwarded Message  ----------

Subject: Re: XML Research Questions
Date: Friday 16 May 2003 18:28
From: Joseph Reagle <reagle@w3.org>

[Note, I'm going to forward my comments to www-archive@w3.org, though I'll
remove your address so it doesn't appear in the archive without your

On Tuesday 13 May 2003 18:25, Jordan Gimbel wrote:
> XML schemas ("XML Schemas and computer language copyright: Filling in the
> Blanks in Blank Esperanto by Doug Phillips arguing that XML schemas
> represent a merger of idea and expression thus raising questions about
> protection) & ("The Copyrightability of New Works of Authorship: XML
> Schemas as an example" by Trotter Hardy supporting a conclusion that XML
> schemas are copyrightable.)

Jordan, I read the two papers and continue to feel that I don't see any
basis for distinguishing between a DTD and schema with respect to their
ability to be copyrighted: if one can be, so can the other.

Unfortunately, I didn't find either paper all the instructive with respect
to the question whether schemas are copyrightable material for the
following reasons:

1. The cited case law (related to abstraction, merger and dictionaries) is
relevant to the question of schemas, but still seems rather removed. I'd be
more interested in the statutes and and case law related to the
copyrightability of computer programs.
2. While there are very few technical mistakes it feels as if the authors
are not that familiar with the technology. For example, they fail to
distinguish (though I think the ground is eventually covered) the
difference between the copyrightability of a schema and the extention of
its copyright to all instances written in that schema. For example, is an
XML instance that is conformant to an XML schema a derivation? That's the
interesting question to me. Plus, both authors lightly touch on the
question of rewriting a schema in arbitrary ways such that it still
describes the same set of valid document instances, but then move on. It'd
be better to perhaps define those class of documents (perhaps in terms of
an Infoset, or some model...) and alternative grammars such as DTDs or
RelaxNG in describing the valid class of document instances. If you write a
Schema that defines a class of valid documents, and I do the same with
RelaxNG, is that infringement? Also, they ignore the interesting question
of someone specifying the same structure, but of in a different namespace.
3. And the policy parts are speculative with respect to competition,
anti-trust, and economic incentives for production. Interesting, but
unsatisfying absent actual cases studies or contemporary issues. For
example, are organizations now asserting copyright with respect to their
schemas? Yes. Do they explicitly extend this to all valid instances?
Interesting question. The W3C does, but I wonder about proprietary formats.


Joseph Reagle Jr.                 http://www.w3.org/People/Reagle/
W3C Policy Analyst                mailto:reagle@w3.org
IETF/W3C XML-Signature Co-Chair   http://www.w3.org/Signature/
W3C XML Encryption Chair          http://www.w3.org/Encryption/2001/
Received on Friday, 16 May 2003 18:30:55 UTC

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