In essence, EU, UK and the USA has different opinion on the ownership status and rights of databases.
EU: Databases are similar to other copyrightable works, thus you can't simply copy someones database.
UK: Like EU but with different flavour.
USA: There's no such things as database rights.
Apparently, although the positions of UK and EU are similar, since UK is no longer in the EU and there's no mutual agreement on how to make things work those who want to have their databases protected by the law need to move to the jurisdiction that fits their needs and in the case of OpenStreetMap that would be EU.
fun fact: The last time the database rights was a hot topic, it was about Google copying the database of a small company that specialises in building a database of net worth of celebrities.
another fun fact: only the UK, EU and Russia have "database rights". No other country has anything similar. And I'm guessing a good reason why no one else has this has to do with free use and research.
Basically, in the EU, UK and Russia I can't even reconstruct your database piece by piece.
> Basically, in the EU, UK and Russia I can't even reconstruct your database piece by piece.
You are entitled to create a similar database based on your own efforts or research. So, you could walk the streets of London with an iPad to make your own KmlxStreetMap. You just can't directly copy or transfer rows from someone else's.
Yes, database rights in the EU/UK sense are an oddity in IP law. They look a lot more powerful at first glance than they have proved to be when tested in court, and they only last 15 years.
They might be useful for something like stopping someone who is in a jurisdiction where they apply from scraping your site to download a database you spent significant money collecting. But that doesn't help you if whoever is scraping your site is based somewhere else, which includes most of the world.
I wonder whether database rights would actually hold up for something like OpenStreetMap anyway. Is OSM generating new data in a creative process or investing significant effort in collecting data that existing sources? If it's the former then copyright probably does apply but database rights probably don't according to CJEU case law. If it's the latter then it's probably the other way around.
Whichever is the case, relocating your whole legal entity to the EU because of an issue like this might be a rather extreme reaction, and from the report it appears the decision here was made on the basis of many small factors and not just the issue of database rights.
It can easily turn into a farce. In the Netherlands there was a case where a company was allowed to copy the phone book, but only as long as they had real people manually copy the data from the original book.
Now I'm wondering if you can license a database file under Creative Commons or GPL and grant others the ability to freely copy it as long as they follow the licensing terms?
I am note sure how one can even have database rights.
If I compile a record of all temperatures for the last 10 years, How can I prevent someone from also creating a database that has temperatures for the last 10 years?
That is why in US Law facts can not be copyrighted, only "creative" works, and facts are not creative they are facts
This is partly about "mutual recognition of database rights": "since Brexit, any database made on or after 1 January 2021 in the UK will not be protected in the EU, and vice versa".
It's not something most people need to worry about, but I expect OpenStreetMap won't be the only company affected by that.
It would have been useful for the article to summarise the situation on this between the EU and the US and between the UK and the EU, as this looks like a global issue.
I have a tendency for cynicism so I have noticed that the article mentions their failure to obtain charity status, which suggests that they may be looking at lowering their tax bill...
So once OSM moves to Europe I can clone OSM database without worries just by residing in the UK?
Surely this is a problem already with the USA and the rest of the world?
If this protection is not enforced everywhere in the world, it's quite useless. I just need to setup a foreign company to bypass it.
This is probably something that is "solved" with a contract:
Eg. "By downloading this database you agree to abide to these rules: don't clone it or we'll sue you for X millions"
> The increased importance of the EU in matters of tech regulation also played a role
check the node density of OSM [0]. notice a pattern?
on a forward looking basis pre-empting any regulatory risk would seem quite a weighty factor. being located in the jurisdiction that reflects the majority of their user base is not a silver bullet but probably shields them from diverging UK/EU rules
> The move may still not happen if the foundation can’t find a suitable country to relocate to. Ireland is out, because of a requirement for directors to be residents; France too, because of the difficulty in guaranteeing English-language services.
So moving to the EU solves some problems but adds more?
The idea that the Foundation wouldn’t be able to find English language services in France is a bit of a stretch. I’ve been working in tech here in France for a while now and whether in startups, tech companies, or independently, I’ve never had any trouble conducting business almost entirely in English if I (as the customer) preferred to.
I had a small tech business in Southern France and without the help of a native french speaker it would have been impossible to navigate the Kafkaesque french bureaucracy.
One really needs an imperative reason to move a business from the UK to France considering how much more business-friendly and, well, sensible, the UK is.
It does not die because there's still truth in it. Bureaucracy is still Kafkaesque for a start. I have been dealing with both British and French administrations extensively and I can tell you it's night and day.
I can't speak for Britain but a lot of administrative services in France are digital now. I'm rarely trapped in bureaucratic nonsense like I would have been say ten years ago. Most services you'd require on any given day (taxes, welfare, unemployment office, healthcare, ID registration, voting registration, starting a basic corporate structure) are trivially available.
The biggest problem now is discoverability as government programs are still habitually arcane and UI/UX grammar. Some countries, I'm thinking especially of Germany, have national standards that make services appear uniform whereas in France every administration is still its own little shop.
As someone who's trying to renew his passport: Services have partially moved online (still have to attend in person...) but they still are bureaucratic nonsense, indeed.
Bureaucracy is Kafkaesque because of the complicated and seemingly random rules, because of the abundance of taxes, etc. There really needs to be a drastic reset of everything.
A good example: The attestation people had to print and fill in if they wanted to leave home during the lockdown. Why? This is bonkers even if it eventually became digital.
Another good example: Starting a business. I don't know if it can be simpler and faster than the way it works in the UK. In France, on the other hand...
As a Francophile Brit that grew up in France, and with the greatest of respect, you are French. It's a totally different story if you are not French. The bureucracy is horrific, even today. My parents have lived there for 30 years, both are fully integrated into the community, and they still face bureuctratic issues and delays, even digitally because they are not French. I'm not suggesting in any way that France is a particulaly xenophobic nation - us Brits have that sewn up, sadly - but the system is very xenophobic in my long experience.
English is an official language in the EU only in Ireland and Malta though, so if Ireland is out and English is a requirement, it shouldn't be difficult to decide which country to move to.
The EU is in an unfortunate situation due to 1.3 billion people speaking English, but also due to member states being too slow in making their governments fully digital. Speaking from experience, it is easier to set up and run a British limited company remotely from Prague than doing so with a Czech company from its own capital.
As someone who has done business on Malta I would not recommend it. Even opening a bank account is a pain on that island. I wouls not want to operate a nob-profit there.
>France too, because of the difficulty in guaranteeing English-language services.
As someone who's done English support in France, it sounds like preconceived notions that don't match reality. The tech industry is usually literate in English, even if the rest of the country can't give a care.
As a French-speaking brit who's been on a tech course in France, tech discourse in French is pretty challenging. Sure, most individual French techs speak very good English. But "ordinateurs", reseaux", "bases de donnees" - I should have got myself a decent tech French/English dictionary. Schoolboy French doesn't cut it in tech.
I don't think that they're particularly concerned with finding tech talent who are able to converse in English. This (potential) move is about enjoying continued legal protections - and if they did have to engage with the legal system in order to defend these then they certainly would not be able to use English officially in the French legal system.
I think in Germany it's more common to incorporate as a registered association (eingetragener Verein, e.V.) for most non-profit activities. For example, the legal entity for the KDE project is KDE e.V.
Admittedly, IANAL, and I don't know much about how foundations (Stiftungen) work in German law, but from experience, e.V. has the advantages of being relatively easy to set up and maintain, being super common so lots of people have experience with it, and having the option of becoming tax-exempt if you put the right weasel words into the statute and file some paperwork with the tax office.
IANAL as well and what I've heard fits well with what you wrote. I have one anecdote that kind of suits the topic: Florian Effenberger, one of the founders of The Document Foundation" also does Open Source Cooking as a side project. It was set up as an e. V. but not tax exempt. A couple of years ago I've heard Florian say in person that he avoided making it tax exempt because it would be such a hassle. Of course Open Source Cooking is only a small endeavor and that might have played a role in his decision.
I'm not really sure what the overall conclusion is except that choosing a suitable legal structure is not easy.
The core of the problem is the part that I sort of glossed over when I said:
> tax-exempt if you put the right weasel words into the statute
The law lists a finite amount of ways [1] in which an e.V. can act in the public interest ("Gemeinnützigkeit") and thus become tax-exempt. Most of these items are engineered to cover existing e.V. For instance, sports clubs are explicitly covered, as are consumer protection watchdogs.
For any associations doing charitable work in the IT context, the issue is that none of these bullet points in the legal text explicitly cover such activities. There has been some support for the idea of adding free software as a charitable cause to this list, but nothing has come out of it as of yet.
I'm familiar with this topic because I'm volunteering in the Chaos Computer Club. Most local chapters are constituted as e.V. and are tax-exempt under the purpose of public education ("Förderung der Volksbildung") since that one is the easiest to get away with if you do any sort of public events that can be considered education every once in a while (like conferences or talks or such).
I don’t understand the concern about database rights. OpenStreetMap is open (you can download it from https://planet.openstreetmap.org/), so why would they be concerned about copyrights?
Most open licences work by manipulating copyright. If you entirely relinquish the rights (a la CC0 or other "public domain" declaration), you can't enforce attribution or share-alike, which OSM wants to do.
I can't imagine this is much more than a set of paper work exercises. It would have no meaningful effect on anyone who uses or works for OpenStreetMap, other than perhaps if someone had a dastardly plan to copy their database and sell it for their own purposes.
It's not really clear to me what the problem is. Doesn't the Open Database License applies everywhere, brexit or not? I never thought that where an "open source" project is physically located as any impact on the license it uses.
One “important reason”, Rischard said, was the failure of the UK and EU to agree on mutual recognition of database rights. While both have an agreement to recognise copyright protections, that only covers work which is creative in nature.
I think if someone abroad is abusing your license, the nuclear option is to sue them in their own country. If that country deems that there's nothing wrong in what is being done, then at the very least you are on a much weaker standing.
Whereas if, from first principles, the rights of the license holder are recognised, then it's much easier to have your rights enforced.
I don't understand the problem either. If they're worried someone in the EU is going to clone their database, moving there just means someone in the UK can now do it. And Americans have apparently been free to do it from the start.
The EU is a much larger market than the UK. If you are an international company that cloned their database, not offering your product in the UK because you could be sued is a loss. However, not being able to offer your product in the EU is a much bigger loss. So, such companies are much more likely to comply with the license if OpenStreetMap is protected by EU laws than by UK laws.
The license of a project grants the consumer additional rights they didn't have before. Like allowing someone to use your copyrighted code (which they normally couldn't) under certain rules. The license and what it stipulates is useless if what it protects can be freely obtained other ways not binding one to the license agreement.
It applies everywhere. The protection in it is in multiple ways, and the database protection has been quite useful in the past. It's always good to have more than one string to your bow.
Database protection is the biggest reason for moving, but not the only one.
Do we have precedent for this? Can you truly not sue if you enter an agreement with someone to provide them with data that restricts their rights to use it, but the data is actually in the public domain? What about implicit agreements like TOS on a website?
These are pertinent concerns for which I have never found a definitive answer.
The first precedent passed in French appeal court and European court just a few months ago. I shall probably do a blog post to cover the case or nobody ever will.
It acknowledges software license (the GPL in that case) as a contract granting obligation to both parties and enforced it as a contract. The claims around copyright/counterfeit were pretty much dismissed (you can't pursue on both copyright and contract grounds in France because they are different legal responsibilities).
Since it's possible to make contracts on pretty much anything between two companies (but not for consumers), there's a chance that the openstreetmap contract has grounds irrelevant of the database rights.
It still doesn't make sense to me, because even if it is a contract, then the only reason for me to enter into that contract is because I have to do so in order to use the software (or database), due to the fact that it is protected by copyright.
If the software/data is not protected by copyright, I am free to use it without entering into any contract with anyone.
Reviewing the OSM Legal FAQ, it appears that they are very much based on copyright and licensing.
If the website/data is clearly associated with a contract (a license is a contract), it is in that case:
As a consumer, maybe it doesn't matter because there are many exceptions and loopholes for consumers (similarly to how EULA are void for a variety of reasons).
As a company however, company don't get consumer exceptions and are not given the benefits of the doubt, if a company decides to source data/software from somewhere, the company must have done the groundwork to ensure it can use the data and under what conditions. (In case I'm not clear, that means the company automatically read and agreed with the contract when using the data).
>>> due to the fact that it is protected by copyright.
Careful here. I think you might do the mistake of assuming that it's all about copyright and it might be wrong. (One angle is to try to void the contract, claiming that the data/database can't be subject to copyright and the contract has no ground).
Contracts like the GPL and Openstreetmap are not (only) about copyright. They are full fledged contracts with many pages, many clauses, that put obligation on both parties. They really are complicated contracts. They have a variety of grounds inside and outside of copyright.
The Appeal court and CJEU basically dismissed copyright/counterfeit claims in the first precedent few months ago, saying it's a contractual matter (short version, there's some nuances to it).
>>> Reviewing the OSM Legal FAQ, it appears that they are very much based on copyright and licensing.
License is a US legal concept that doesn't exist in Europe. In Europe there are only contracts, US licenses are interpreted as contracts (and if they don't satisfy the local requirements to form a contract they are void).
The problem is before the contract even gets a chance to be applicable.
If the data is there, I can just take and copy it. In fact, in order to display the data in my browser, multiple copies have already ben made.
The only reason that there's a limit to what I am allowed to do with that data, vs. what I can do with that data, is copyright. So if the data is protected under copyright, you can limit my copying and, for example, require me to agree to a contract in order that I may be allowed to copy it (and thus use it).
However, if the data is not protected under copyright, there is nothing stopping me from doing all the things to the data that I can, and so I can just ignore the contract you would like me to agree to.
> Contracts like the GPL and Openstreetmap are not (only) about copyright.
But they are based on copyright. Without copyright protection, nobody needs to enter into that contract.
> License is a US legal concept that doesn't exist in Europe.
A contract can state anything, especially between two companies, they're assumed to negotiate on equal footing and read everything, they don't get protections like consumers.
There is a possible strategy where you try to say that the data cannot be subject to copyright and you try to void the contract. You understand that. I think that's what you're talking about?
I am trying to tell you that there is a good chance that this strategy doesn't work. You're not gonna manage to void the contract like that.
The first case just passed in appeal court in France on the GPL. The court pretty much dismissed all copyright claims, they decided it's a contractual matter because there is a contract, the contract takes precedence over all copyright claims. (In the end they got some damages for "parasitism", it's a thing in French law where a company is profiting from work/investments taken by another company.)
Further clarifications then. In the US there are licenses and contracts, which are two separate fields of law.
In the EU (in France at least which I am more familiar) there are only contracts.
If you want to allow somebody to manufacture and sell some paintings for you (for example), you can draft a contract to allow them to do that. The contract could be called a licensing contract or a distribution contract. It's a regular contract, it's not a separate thing.
This causes a lot of confusion for US readers because they hear about licenses in EU and think it's the same as in the US but it isn't. That type of license is a contract governed by contract law. There is no separate license law like in the US.
My German is not good enough to comprehend all of that. It seems your link is talking about drafting contract for specific purposes (license to manufacture, license to distribute, license to use). It doesn't say that licenses aren't contracts.
In essence, EU, UK and the USA has different opinion on the ownership status and rights of databases.
EU: Databases are similar to other copyrightable works, thus you can't simply copy someones database.
UK: Like EU but with different flavour.
USA: There's no such things as database rights.
Apparently, although the positions of UK and EU are similar, since UK is no longer in the EU and there's no mutual agreement on how to make things work those who want to have their databases protected by the law need to move to the jurisdiction that fits their needs and in the case of OpenStreetMap that would be EU.
fun fact: The last time the database rights was a hot topic, it was about Google copying the database of a small company that specialises in building a database of net worth of celebrities.
https://news.ycombinator.com/item?id=24105465