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  • From: "T. Margoni" <t.margoni AT uva.nl>
  • To: "cc-europe AT lists.ibiblio.org" <cc-europe AT lists.ibiblio.org>
  • Subject: Re: [CC-Europe] request for input: database rights in CC v4.0
  • Date: Mon, 28 Jan 2013 14:07:50 +0100

Dear Sarah and all,

I have a few comments in the text. To summarize my point, I think we
need some improvement in the wording to avoid misunderstandings (at
least if we assume that if any of the affiliates get confused, then
users can get confused as well).

> Federico, I think your scenario is consistent with how we envision it
> should work. Provided there is some extraction and reuse of the contents
> of the licensed database in another database subject to SGDRs, then
> ShareAlike would be triggered. But as you pointed out, ShareAlike would
> not apply to the pictures within the database in your example.

Ok.

> Thomas, I think you make an interesting point that perhaps it is implied
> that ShareAlike does not apply to the contents of the database

Such as the pictures in Federico's example. I agree.

> because
> the database itself is an independent work.

Not the database, but its content/s might be an independent work (e.g.
if there are pictures).

> I think there are a couple
> of reasons why that is not necessarily the case here though. (1) This
> definition of what constitutes Adapted Material of a database subject to
> SGDRs is a concept we created artificially within the license, so it's
> not clear that the Directive would be the basis or reference point for
> determining the boundaries of the definition.

This is really confusing since in the license there are specific
references to the Directive, and the use of specific wording is clearly
based on the Directive. This suggests, to me at least, that a EU court
asked to interpret a CC license on SGDR is likely to do it on the basis
of the Directive.

> (2) The default when a CC
> license is applied to a database is that the license applies to both the
> database structure and its contents unless otherwise indicated.

I am getting a bit lost. With "its content" are we not referring again
to the same pictures of Federico's example that we agreed are not
covered by the license?

To be clear: I am not suggesting here that the pictures of our example
should or should not be covered by the license.
I am fine that 4.0 SA operates as you suggest, i.e. that if a licensor
applies a CC-BY-SA to a work which is a DB and is protected by copyright
in the DB, SGRD in the investment, AND there are copyrighted works among
the contents of the database, the licensor is licensing also the
copyright (or related rights) in such contents. But since the latter are
independent works in light of the Directive, then it needs to be made
explicit that the license on the DB applies also to such independent
works constituting the content of the DB, which are conceptually
different from the SGDR and from the copyright in the work DB. I am not
sure if that last sentence of my original email is meant to achieve this
result, but if yes, maybe it is not explicit enough.

Would be good, though, to know what others think.


Best,

thomas





>
> On Fri, Jan 25, 2013 at 7:06 AM, melanie dulong <melanie.ddr AT gmail.com
> <mailto:melanie.ddr AT gmail.com>> wrote:
>
> Dear all,
> It is likely that I will share the views of Lucie and Thomas, but
> could it be possible to have more than 2 working days to study the
> issue?
> Thanks,
> Melanie
>
> Le vendredi 25 janvier 2013, T. Margoni a écrit :
>
> Great example Federico!
>
> I think our "not sure what exactly it means" coincides.
>
> My understanding of what the whole issue (as explained by Sarah, and
> also as explained in the original document) is along the lines
> of your
> example. Copyright in the structure under SA, SGDR under SA,
> copyright
> in the elements constituting the db, not under SA obligation.
>
> But IF this is the result that we want to achieve, then I do not
> think
> that our last sentence is a) necessary or b) clear (it could survive
> rephrased as "for the avoidance of doubts", though).
>
> The database directive is clear in identifying 3 layers of
> protection:
>
> 1) copyright in the selection/arrangement of content if author's own
> intellectual creation (art. 3,1)
>
> 2) SGDR in the qualitative/quantitative substantial investment in
> obtaining/verification/presentation of contents (art. 7,1)
>
> 3) Other rights (and for our case most importantly copyright/related
> rights) in the content itself, which are left untouched by
> either 1) or
> 2), see arts. 3,2 and 7,4).
>
> In light of that, if we license a db that is protected, say, by
> copyright and SGDR, we are licensing only the work database, and
> not the
> works eventually constituting the db, represented in Federico's
> examples
> by the pictures, and the main reason is because we are in
> presence of
> different and independent works/materials. Those pictures, are
> not bound
> by SA, nor need to be under a CC (although issues regarding their
> re-usability can emerge). GPL's copyleft provisions should
> operate quite
> similarly.
>
> Now, IF we agree that this is the part on which we all have
> doubts on,
> and Sarah confirms that this is the intended meaning of that last
> clause, then I suggest rewording, eventually even outside the
> license. I
> say this because, what we described is the normal operation of
> the db
> protection (copyright+SGDR), without the need of a specific
> clause. I do
> agree though, that this might be a bit, a lot confusing
> especially to
> users, therefore it needs to be addressed with clarity.
>
> Sorry for the long email.
>
> Best regards,
>
> thomas
>
>
> On 2013-01-25 9:25 AM, Federico Morando wrote:
> > Hi Sarah,
> >
> > first of all, let's me say that I share Thomas' and Lucie's
> comments
> > about the last draft: it's indeed a very nice and clear
> document. But I
> > also shared their question about the last sentence in the
> definition of
> > Adapted Material.
> >
> > On 01/25/2013 03:02 AM, Sarah Pearson wrote:
> >> - If a licensee in the EU extracts and reuses a substantial
> portion of
> >> the contents of a BY-SA licensed database in her own database
> in which
> >> she has SGDRs, she is required under ShareAlike to license
> her own
> >> SGDRs and her copyright (if any) in the database structure under
> >> BY-SA. She is _not_ required to license the contents of her
> database
> >> under BY-SA.
> >
> > Following the license and your example, am I correct if I say that
> > somebody could take the BY-SA-licensed database A (let's say a
> dump of
> > dbPedia), add to it a set of links to pictures and the pictures
> > themselves, publishing the derived (and arguably sui generis right
> > protected) database B (for instance creating a website which is an
> > enriched version of dbPedia with new pictures) under a BY-SA
> license,
> > but keeping a proprietary license for the pictures themselves
> (while the
> > links to the pictures are arguably licensed under BY-SA)?
> > [Notice that there should be no copyright protection on
> database B,
> > unless we argue that the creativity of the choice of these
> pictures is
> > sufficient to trigger copyright protection for the database...
> but this
> > would be strange and I suggest to assume that only SGDR
> applies to B.]
> >
> > (I'm not saying whether this is good or bad; I just wanted to
> share this
> > scenario, verify if it's correct according to the intended
> meaning of
> > the license and elicit further comments.)
> >
> > Best,
> >
> > Federico
> >
> >
> >
> >
> > _______________________________________________
> > CC-Europe mailing list
> > CC-Europe AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-europe
> >
>
> --
> Dr. Thomas Margoni
> Institute for Information Law (IViR) - Faculty of Law
> University of Amsterdam - The Netherlands
> http://ssrn.com/author=1383303
> _______________________________________________
> CC-Europe mailing list
> CC-Europe AT lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-europe
>
>
> _______________________________________________
> CC-Europe mailing list
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> http://lists.ibiblio.org/mailman/listinfo/cc-europe
>
>

--
Dr. Thomas Margoni
Institute for Information Law (IViR) - Faculty of Law
University of Amsterdam - The Netherlands
http://ssrn.com/author=1383303




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