Open database licence and contracts – Anti-commons?

A question about contract and the Open Data Commons Database licence came up on one of the lists.

Why would I want to apply *additional* restrictions in a jurisdiction where there are no copyright or exclusive rights for databases?

This seems rather anti-commons to me.

The short answer is that by applying contract in a jurisdiction where the DB was not covered by copyright, a DB right, or similar rights, you can still gain the use of the licence, which actually allows users to do virtually anything with the database contents or the database itself, but only really asks that you:

  • share alike (Section 4.4 and 4.5)
  • notify others about the licence and content (Section 4.2 and 4.3)

There are two others requirements about additional technical and contractual restrictions (4.6) as well as sublicensing (4.7).

Note that database providers in cases where there is no copyright and no database rights often use contract to cover the use of the contents (such as factual information) and the database. This is incidentally one of the areas that is really beneficial about the EU Database Directive — it specifically forbids contracting around the right of lawful users to extract and re-utilise insubstantial parts of a database. This is the approach used in the United States for example.

I think it is a mistake to think that having a contract in these cases (to share alike and notify others) is ‘anti-commons’. Many people with a database want an option between no control and lots of control — the same reasons that people license works under CC. They want a ‘some control’ or ‘some rights reserved’ approach Using contract is a way to give them ‘some control’ in (hopefully) all jurisdictions. In this way, they feel comfortable sharing information which they are under no obligation to share in the first place with a licence that allows further use and re-use.

Also note that the contents are separate from the database in the licence. For factual information, if you use the supplemental factual info licence and the database licence together, you can:

  • use the info any way you want
  • have piece of mind that there is no hidden copyright claim over the factual information or other data
  • take a substantial part of the contents and make a new DB with it, but it must be SA
  • produce data from the database and mix it with whatever you want

I think that there are quite a few cases from more “traditional” areas of CC where the end result is relying on a contract rather than a licence of an underlying copyright. In addition, I think many people using CC for databases are in effect using CC as a contract without an underlying copyright. But for both of these last points, I’m going to have to do a bit more research and writing before I can turn out a fully formed blog post.

To be continued.