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OpenStreetMap: A practical guide Version 1 / May 2014 Version 1 / July 2014

Crown copyright ©. This copyright work is licensed under the Creative Commons Attribution 3.0 New Zealand licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to Land Information New Zealand and abide by the other licence terms. To view a copy of this licence, visit

http://creativecommons.org/licenses/by/3.0/nz/. Please note that neither the Land Information New Zealand emblem nor the New Zealand Government logo may be used in any way which infringes any provision of the Flags, Emblems, and Names Protection Act 1981 or would infringe such provision if the relevant use occurred within New Zealand. Attribution to Land Information New Zealand should be in written form and not by reproduction of the Land Information New Zealand emblem or New Zealand Government logo.

OPENSTREETMAP: A PRACTICAL GUIDE

Contents

Introduction ..................................................................................................................................... 1!Context ................................................................................................................................. 1!No legal advice ..................................................................................................................... 2!

A primer on OpenStreetMap and its licences ............................................................................... 2!OpenStreetMap and the OpenStreetMap Foundation ......................................................... 2!Contributors .......................................................................................................................... 2!Licensing of OSM ................................................................................................................. 2!Licences to OSMF by contributors ....................................................................................... 4!Why OSMF replaced its CC-BY-SA licensing with the ODbL .............................................. 4!

Anatomy and summary of the ODbL ............................................................................................. 5!The ODbL's three-pronged approach: copyright, database right and contract .................... 5!ODbL's coverage of copyright .............................................................................................. 6!ODbL's coverage of the European database right ............................................................... 6!ODbL's contractual dimension ............................................................................................. 6!Database contents ............................................................................................................... 6!Granting of rights to users .................................................................................................... 7!Conditions ............................................................................................................................ 8!Fair dealing and the taking of insubstantial parts ............................................................... 10!Licence termination ............................................................................................................ 10!

How does OSMF treat the OSM database contents? ................................................................. 11!Relevant provisions ............................................................................................................ 11!Consequences ................................................................................................................... 12!

What is the legal standing of the OSM licences in New Zealand? ........................................... 13!OSM Community Guidelines ........................................................................................................ 13!What activities would an individual/organisation/agency be required to undertake in order to be affected by the OSM licensing? ......................................................................................... 14!

Contributing ........................................................................................................................ 14!Using/re-using .................................................................................................................... 14!What obligations apply to a person publishing something, such as an artistic map, that is based on OSM data where the person does not supplement the OSM data with additional data? .................................................................................................................................. 14!What obligations apply to a person that uses OSM data in an application (e.g., a web or mobile application) to provide routing or geocoding to end users, where neither the person nor the application supplements the OSM data with other data? ....................................... 15!What obligations apply to a person publishing something that is based on both OSM data and other data that the person creates or obtains from a third party source? ................... 15!If a person saves OSM nodes in a new database so that metadata from another database/system/programme could be referenced back to the OSM node(s), would this constitute a Derivative Database? ..................................................................................... 16!

OPENSTREETMAP: A PRACTICAL GUIDE

But is mere "geocoding" really subject to the Share-Alike Obligation? .............................. 18!If a person creates a Derivative Database for use with a commercial application that contains intellectual property (IP) owned by the person, does that IP need to be licensed under the Share-Alike Obligation? ..................................................................................... 20!If a Derivative Database is created as a web-service for app developers to use for reference or routing, what flow-on affects would the OSM licensing have on the app developers? ........................................................................................................................ 21!

This image is reproduced from OSM. The cartography in its map tiles is licensed by OSMF under the Creative Commons Attribution-ShareAlike (Generic) licence available at http://creativecommons.org/licenses/by-sa/2.0/

OPENSTREETMAP: A PRACTICAL GUIDE 1

Introduction

Context

1 OpenStreetMap (OSM) is a free, editable map of the whole world. Its underlying database is available for re-use, on open access terms, under the Open Database Licence (ODbL) and the cartography in its map tiles is available for re-use under the Creative Commons Attribution-Share-Alike (CC-BY-SA) licence. It is one of the most well known, most open and most useful open data projects the world has seen and its data are used across the world for private, public, social, commercial and governmental purposes.

2 Land Information New Zealand (LINZ) has been a significant contributor of geospatial data to OSM and both it and other New Zealand government agencies recognise and wish to leverage OSM for public purposes, including in relation to activities connected with the rebuild of Canterbury after the damaging earthquakes the region has suffered.

3 LINZ is also mindful that New Zealanders and New Zealand-based organisations wish to utilise OSM for their own projects, whether social, commercial or otherwise in nature.

4 Use and re-use of OSM requires an understanding of the OSM-licensing. This can, at times, be challenging, for both agencies and others, given not only the complexity of the ODbL but also the wide range of OSM-related situations in which various issues may need to be considered. Distinctions that may appear clear when first reading the ODbL can become more obtuse in practice given the range of technologies and other means by which data can be captured, consumed, formatted, saved and shared. In addition, the broad definition of "Derivative Database" (part of the trigger for a share-alike obligation) could be interpreted as capturing a range of fairly innocuous activities that the OpenStreetMap Foundation (OSMF) or substantial portions of the OSM community may not have intended to be subject to the share-alike obligation.

5 For these reasons, LINZ's Spatial Data Infrastructure (SDI) Programme Office (a part of the the New Zealand Geospatial Office) considers that it would be helpful to provide practical guidance to agencies and others on the OSM-licensing, with a view to helping them make decisions relevant to their use of OSM. That is the purpose of this guide.

6 If resources permit, LINZ will endeavour to keep this guide up to date as agencies come to have greater exposure to the ODbL and greater use of OSM, and as OSMF comes to release more Community Guidelines on its approach to applying the ODbL to specific OSM-related situations.

7 This practical guide:

(a) provides a primer on OpenStreetMap and its licensing;

(b) discusses the anatomy and key terms of the ODbL;

(c) assesses the legal standing of the OSM licences in New Zealand;

(d) discusses OSMF's treatment of the OSM database contents;

(e) explains the existence and significance of OSM Community Guidelines; and

(f) discusses a range of OSM-related activities that raise licensing issues of which contributors and users need to be aware.

8 The primary focus of this guide is on the data in the OSM database, rather than on the cartography in its map tiles. Those needing a better understanding of the CC-BY-SA licence are encouarged to review the New Zealand Government Open Access and Licensing


framework1 and the generic version of the CC-BY-SA licence under which the cartography in the map tiles is licensed.2

9 Capitalised terms use in this guide have the meanings given to them, either by this guide or the ODbL.

No legal advice

10 Readers should note that this guide does not contain or constitute legal advice to any particular agency, person or organisation. The Crown will not be liable for the consequences of reliance on this guide in specific situations involving contributions to or use of OSM. Should any agency, person or organisation be uncertain about the application of the ODbL or other licensing to their own particular circumstances, it is their responsibility to seek their own legal advice to the extent they consider it necessary or desirable.

A primer on OpenStreetMap and its licences

OpenStreetMap and the OpenStreetMap Foundation

11 OpenStreetMap (OSM) is, to quote its website,3 "the free wiki world map"; a "free, editable map of the whole world".4 In particular, it "is a database of mapping information which can be used for many different purposes with very few restrictions".5 It enables people to "benefit [by] using the main OpenStreetMap page or one of the many other information services based on OpenStreetMap available from many different organisations".

12 Standing behind OSM is the OpenStreetMap Foundation (OSMF). OSMF is a United Kingdom-registered not-for-profit organisation that supports and acts as the legal entity for the OSM Project. It consists of members from around the world who elect its board of directors.6

Contributors

13 People can participate in OpenStreetMap by editing the map:7

"With a free user account, you can make improvements to the map that fix issues and add data for everyone. Some users take GPS units on walks, drives, or cycling trips to record tracks that can then be imported to OpenStreetMap. Others help out by tracing roads and features they find in satellite imagery into the map."

14 As at 6 January 2013, OSM had 1 million registered users.

Licensing of OSM

15 Significantly from an open data/access perspective, the entire database is available for download from planet.osm.org. Alternatively, one can download portions of the data relating to an individual country or region.

16 Contributions to the OSM project were originally licensed under the Creative Commons Attribution-ShareAlike (CC-BY-SA) licence. However, OSMF decided to move away from the CC-BY-SA licence, opting instead, in September 2012, for the Open Data Commons' Open Database Licence (ODbL).

1 Available at http://ict.govt.nz/guidance-and-resources/information-and-data/nzgoal/ 2 Available at http://creativecommons.org/licenses/by-sa/2.0/ 3 See http://www.openstreetmap.org 4 See http://wiki.openstreetmap.org/wiki/About 5 See http://wiki.openstreetmap.org/wiki/Main_ See http://wiki.osmfoundation.org/wiki/About 7 See http://wiki.openstreetmap.org/wiki/About


17 OSM's copyright and licensing page states that:8

(a) OSM 'is open data, licensed under the ODbL'; and

(b) the cartography in its map tiles, and its documentation, are licensed under the Creative Commons Attribution-ShareAlike 2.0 Generic (CC-BY-SA) licence.

18 The OSM licensing model is, therefore, one of dual-licensing, the terms applying to a person's reuse depending on whether the person is reusing the underlying data or the catography in its map tiles.

(Given the structure of the ODbL, the OSM licensing model should actually be (and, it is believed, was intended to be) tri-partite licensing: (1) the ODbL for the database itself; (2) the Open Data Commons Database Contents License (DbCL) for the database contents; and (3) the CC-BY-SA licence for cartography in the map tiles. This point is discussed further at paragraphs 46-53 below.)

19 OSMF is the licensor of the ODbL-licensed material. (Earlier CC-BY-SA licensed versions of OSM are available but this guide focuses only on the latest, ODbL-licensed versions.)

20 A person does not need to be registered in order to download some or all of the OSM database. All the person needs to do is go to an export page and click an "Export" button. In the screenshot below, you can see that licence information is provided before the button. This:

(a) serves the purpose of indicating the copyright/database right licensing terms; and

(b) OSMF would presumably argue, takes effect as a form of "browsewrap agreement" by which the terms are presented to the user before the user performs the relevant act and will be taken to have been agreed to by the user as part of the user's performing that act (clicking 'export').9

This contractual dimension is relevant for the ODbL as it takes the form of both a copyright/database right licence and a contract.

8 See http://www.openstreetmap.org/copyright (last checked 15 November 2013) 9 Whilst, from a legal "browsewrap" perspective, the wording on the OSM website could be clearer than it is, the intent is

fairly clear.


Licences to OSMF by contributors

21 For OSMF to be able to license OSM as it does, it needs incoming rights from contributors. It obtains these rights by requiring contributors, when they sign up to be contributors, to agree to a set of "contributor terms".10 Acceptance of these terms forms a contract (referred to as a "contributor agreement") between each contributor and OSMF.

22 The contributor agreement states that, when a person contributes data or any other content (Contents) to OSM:

(a) the person is indicating that, as far as the person knows, the person has the right to authorise OSMF to use and distribute the Contents under OSMF's current licence terms (clause 1(a));

(b) the person grants:

"... to OSMF a worldwide, royalty-free, non-exclusive, perpetual, irrevocable licence to do any act that is restricted by copyright, database right or any related right over anything within the Contents, whether in the original medium or any other. These rights explicitly include commercial use, and do not exclude any field of endeavour. These rights include, without limitation, the right to sub-license the work through multiple tiers of sub-licensees and to sue for any copyright violation directly connected with OSMF's rights under these terms. To the extent allowable under applicable local laws and copyright conventions, You also waive and/or agree not to assert against OSMF or its licensees any moral rights that You may have in the Contents" (clause 2); and

(c) "OSMF agrees that it may only use or sub-license Your Contents as part of a database and only under the terms of one or more of the following licences: ODbL 1.0 for the database and DbCL 1.0 for the individual contents of the database; CC-BY-SA 2.0; or such other free and open licence ... as may from time to time be chosen by a vote of the OSMF membership and approved by at least a 2/3 majority vote of active contributors" (clause 3).

23 In plain English, each contributor is allowing OSMF to use the contributed Contents for any purpose, including commercial purposes and including OSMF allowing others to use the contributed Contents, as long as OSMF's use is as part of a database and its sub-licensing uses the specified licences.

24 A limitation of liability clause in the contributor agreement makes it clear that those who contribute Contents are, so far as OSMF is concerned, doing so on a risk-free basis, that is, without any promises as to its accuracy, fitness for purpose or the like and without liability to OSMF under the contributor agreement. OSMF likewise excludes its liability to contributors.

25 The contributor agreement is governed by English law.

Why OSMF replaced its CC-BY-SA licensing with the ODbL

26 OSMF considered that the Creative Commons CC-BY-SA licence did not go far enough, or could be interpreted as not going far enough, to protect OSM data, and that a data-specific licence agreement was required to give sufficient protection to the data and its continuing public availability over time.

10 Available at http://www.osmfoundation.org/wiki/License/Contributor_Terms


27 The reasons for this view appear to be:11

(a) a perception that Creative Commons licences were designed for creative content and were not suitable for databases;

(b) the view that Creative Commons licences do not address the European sui generis database rights and, therefore, are incomplete in their coverage; and

(c) concern that copyright law in many jurisdictions may not provide sufficient protection for discrete database contents, distinct form the database as a whole, with the consequence that people could access and use publicly-accessible data without having to comply with the licence terms, particularly an obligation to share adaptations of the data with others on the same or similar terms.

Anatomy and summary of the ODbL

The human readable summary

28 Following the Creative Commons model, Open Data Commons has produced a 'human readable summary' of the ODbL as well as the full legal text. The human readable summary is reproduced to the right.12

29 This summary helpfully portrays some of the key aspects of the ODbL to those new to the ODbL. It cannot, however, be relied on by itself to explain the ODbL's legal structure or the full terms of the licence, particularly those relating to derivative databases, the share-alike obligation and instances of data use that the ODbL does not affect. The remaining part of this section of the guide explains the ODbL in more detail.

The ODbL's three-pronged approach: copyright, database right and contract

30 The ODbL sought to address the perceived shortcomings of the CC-BY-SA licence by:

(a) expressly using database-oriented terminology;

(b) expressly creating a licence of applicable copyright and neighbouring rights as well as a licence of the separate database right; and

(c) purporting to create not only a copyright licence but also an enforceable contract.

11 This general topic is discussed in more detail in NZGOAL Guidance Note 4: Databases and datasets, available at

www.ict.govt.nz 12 Copyright content on the Open Data Commons website (http://opendatacommons.org/) is licensed for re-use under the

Creative Commons Attribution 3.0 Unported licence, available at http://creativecommons.org/licenses/by/3.0/


31 The reason for its purporting to create an enforceable contract was to regulate access to and use of data in a way that copyright law may not be able to where database contents are in the nature of 'mere facts'. The view of the ODbL authors appears to be that where database contents are mere facts that are not, in a given jurisdiction, protected by copyright, contractual provisions can and should fill potential gaps in protection and ensure that certain obligations such as "share-alike" are enforceable.

ODbL's coverage of copyright

32 The ODbL's coverage of copyright is of "any copyright or neighbouring rights in the Database", including "any individual elements of the Database" but it expressly does not cover "the copyright over the Contents independent of [the] Database" (clause 2.2(a)).13 "Database" is defined as "a collection of material (the Contents) arranged in a systematic or methodical way and individually accessible by electronic or other means offered under the terms of this License". "Contents" is separately defined as the "contents of this Database, which includes the information, independent works, or other material collected into the Database".

ODbL's coverage of the European database right

33 The licence of the database right is said to cover "the Extraction and Re-utilisation of the whole or a Substantial part of the Contents" (clause 2.2(b)). "Extraction" is defined as "the permanent or temporary transfer of all or a Substantial part of the Contents to another medium by any means or in any form". "Re-utilisation" is defined as "any form of making available to the public all or a Substantial part of the Contents by the distribution of copies, by renting, by online or other forms of transmission."

34 The ODbL's coverage of the "database right" relates to a sui generis database right that exists under European law. There is no equivalent right under New Zealand law. Under New Zealand law, sufficiently original databases and datasets are protected by copyright law (they are considered to be a category of literary works).

35 The ODbL needs, nevertheless, to cover the European database right because its contributors and users could be European and because the ODbL's governing law clause states that the licence takes effect in and will be governed by the laws of the relevant jurisdiction in which the licence terms are sought to be enforced (clause 10.4).

ODbL's contractual dimension

36 The contractual dimension is seemingly more straight-forward: in return for having access to the database, the user agrees to certain conditions of use as set out in the ODbL (clause 2.2(c)).

Database contents

37 There is a clause in the ODbL that specifically addresses the application of the licence/agreement to the contents of the database. Reinforcing clause 2.2(a) noted above, it states that "this License" (which is defined as both the copyright/database licence and the contractual agreement) "does not cover any rights (other than Database Rights or in contract) in individual Contents contained in the Database." "For example", it continues, "if used on a Database of images (the Contents), this License would not apply to copyright over individual images, which could have their own separate licenses, or one single license covering all of the rights over the images" (clause 2.4). The Preamble to the

13 The same paragraph states that copyright law varies between jurisdictions, but is likely to cover: the Database model or

schema, which is the structure, arrangement, and organisation of the Database, and can also include the Database tables and table indexes; the data entry and output sheets; and the Field names of Contents stored in the Database.


licence/agreement states that licensors "should use the ODbL together with another license for the contents, if the contents have a single set of rights that uniformly covers all of the contents".

Granting of rights to users

38 Turning to the grant of rights, the ODBL states that, subject to its terms and conditions:

"the Licensor grants to You a worldwide, royalty-free, non-exclusive, terminable (but only under Section 9) license to Use the Database for the duration of any applicable copyright and Database Rights. These rights explicitly include commercial use, and do not exclude any field of endeavour. To the extent possible in the relevant jurisdiction, these rights may be exercised in all media and formats whether now known or created in the future.

The rights granted cover, for example:

a. Extraction and Re-utilisation of the whole or a Substantial part of the Contents;

b. Creation of Derivative Databases;

c. Creation of Collective Databases;

d. Creation of temporary or permanent reproductions by any means and in any form, in whole or in part, including of any Derivative Databases or as a part of Collective Databases; and

e. Distribution, communication, display, lending, making available, or performance to the public by any means and in any form, in whole or in part, including of any Derivative Database or as a part of Collective Databases."

39 To understand this grant of rights fully, one needs to understand the meanings that the ODbL gives to the capitalised terms:

(a) "Use" means "doing any act that is restricted by copyright or Database Rights whether in the original medium or any other; and includes without limitation distributing, copying, publicly performing, publicly displaying, and preparing derivative works of the Database, as well as modifying the Database as may be technically necessary to use it in a different mode or format";

(b) "Database" means "a collection of material (the Contents) arranged in a systematic or methodical way and individually accessible by electronic or other means offered under the terms of this License";

(c) "Database Rights" means "rights resulting from the Chapter III (“sui generis”) rights in the Database Directive (as amended and as transposed by member states), which includes the Extraction and Re-utilisation of the whole or a Substantial part of the Contents, as well as any similar rights available in the relevant jurisdiction...";

(d) "Extraction" means "the permanent or temporary transfer of all or a Substantial part of the Contents to another medium by any means or in any form";

(e) "Re-utilisation" means "any form of making available to the public all or a Substantial part of the Contents by the distribution of copies, by renting, by online or other forms of transmission";

(f) "Substantial" means "substantial in terms of quantity or quality or a combination of both. The repeated and systematic Extraction or Re-utilisation of insubstantial parts of the Contents may amount to the Extraction or Re-utilisation of a Substantial part of the Contents";


(g) "Contents" (as noted above) means "the contents of this Database, which includes the information, independent works, or other material collected into the Database. For example, the contents of the Database could be factual data or works such as images, audiovisual material, text, or sounds";

(h) "Derivative Database" means "a database based upon the Database, and includes any translation, adaptation, arrangement, modification, or any other alteration of the Database or of a Substantial part of the Contents. This includes, but is not limited to, Extracting or Re-utilising the whole or a Substantial part of the Contents in a new Database"; and

(i) "Collective Database" means "this Database in unmodified form as part of a collection of independent databases in themselves that together are assembled into a collective whole. A work that constitutes a Collective Database will not be considered a Derivative Database".

40 That's quite a mouthful. What it all means in substance is that, as a user of the licensed database (such as OSM):

(a) you are allowed to do anything with the database which, without the ODbL (or equivalent licence), you would otherwise be prevented from doing by copyright law or European or similar database rights;

(b) you are, for example, allowed to distribute, copy, perform, display and adapt the database, including for commercial purposes and regardless of the nature of your activity;

(c) you are allowed to transfer some or all of the database contents to another medium;

(d) you are allowed to re-use the database contents in the sense of making them available to the public, by any means;

(e) you are allowed to create databases that are based on the licensed database; and

(f) you are allowed to include the licensed database in a collection of databases.

(This is what the ODbL says but, to the extent that its contents may be protected by copyright, it also depends on a distinct contents licence. This point is discussed further at paragraphs 46-53 below.)

Conditions

41 The above rights are not completely unrestricted. They are, rather, subject to a number of conditions set out in clause 4 of the ODbL. If a person using the database fails to comply with any of these conditions, the person will be in breach of the licence / contract.

42 Among other things:

(a) if a person "Publicly" "Conveys" the Database, any Derivative Database, or the Database as part of a Collective Database, the person must:

(i) do so only under the terms of the ODbL or another permitted licence;

(ii) include a copy of the ODbL (or permitted licence) or its Uniform Resource Identifier (URI) with the Database or Derivative Database, including both in the Database or Derivative Database and in any relevant documentation; and

(iii) keep intact any copyright or Database Right notices and notices that refer to the Licence

(the General Notice Obligation) (clause 4.2);


there are two additional and relevant defined terms here:

(i) "Publicly" means "to Persons other than You or under Your control by either more than 50% ownership or by the power to direct their activities (such as contracting with an independent consultant)"; and

(ii) "Convey" means "Using the Database, a Derivative Database, or the Database as part of a Collective Database in any way that enables a Person to make or receive copies of the Database or a Derivative Database. Conveying does not include interaction with a user through a computer network, or creating and Using a Produced Work, where no transfer of a copy of the Database or a Derivative Database occurs";

(b) whilst merely creating and Using a Produced Work does not require the notice referred to above, if a person Publicly Uses a Produced Work, the person must include a notice associated with the Produced Work reasonably calculated to make any Person that uses, views, accesses, interacts with, or is otherwise exposed to the Produced Work aware that Content was obtained from the Database, Derivative Database, or the Database as part of a Collective Database, and that it is available under the ODbL (the Produced Work Notice Obligation) (clause 4.3); there are two relevant defined terms here:

(i) "Publicly" has the meaning set out above; and

(ii) "Produced Work" means "a work (such as an image, audiovisual material, text, or sounds) resulting from using the whole or a Substantial part of the Contents (via a search or other query) from this Database, a Derivative Database, or this Database as part of a Collective Database";

(c) any Derivative Database that a person Publicly Uses must be only under the terms of the ODbL, a later version of it or a compatible licence (the Share-Alike Obligation) (clause 4.4(a)); the ODbL makes it clear that:

(i) "Extraction or Re-utilisation of the whole or a Substantial part of the Contents into a new database is a Derivative Database" and the person doing so must, therefore, comply with the Share-Alike Obligation (clause 4.4(b)); and

(ii) "if a Produced Work created from [a] Derivative Database is Publicly Used", then the "Derivative Database is Publicly Used and so the person doing so must comply with [the Share-Alike Obligation]" (clause 4.4(c));

(d) a person must not add Contents to Publicy Used Derivative Databases that are incompatible with the rights granted under the ODbL; in other words, there must be no restrictions preventing those Contents from being openly accessed and used by others (clause 4.4(d));

(e) the Share-Alike Obligation does not require a person to license a Collective Database under the ODbL where the person incorporates the Database or a Derivative Database in the collection (but the ODbL still applies to the Database or Derivative Database itself) (clause 4.5(a));

(f) using the licensed Database, a Derivative Database or the licensed Database as part of a Collective Database to create a Produced Work does not create a Derivative Database for the purposes of clause 4.4 (clause 4.5(b));


(g) if a person Publicly Uses a Derivative Database or a Produced Work from a Derivative Database, the person must also offer to recipients14 of the Derivative Database or Produced Work a copy in a machine readable form of:

(i) the entire Derivative Database; or

(ii) a file containing all of the alterations made to the Database or the method of making the alterations to the Database (such as an algorithm), including any additional Contents, that make up all the differences between the Database and the Derivative Database (clause 4.6);15

(h) the ODbL generally does not allow one to impose terms or technological measures on the Database, a Derivative Database, or the whole or a Substantial part of the Contents that alter or restrict the terms of the License, or any rights granted under it, or have the effect or intent of restricting the ability of any person to exercise those rights; the only circumstance where a person may impose terms or technological measures on the Database, a Derivative Database, or the whole or a Substantial part of the Contents (known as a Restricted Database) is where the person also makes a copy of the Database or a Derivative Database available to the recipient of the Restricted Database for no additional fee and in an unrestricted manner; and

(i) a person may not sublicense the Database; rather, each time the person communicates the Database, the whole or Substantial part of the Contents, or any Derivative Database to anyone else in any way, the Licensor (in the case of OSM, this is OSMF) offers to the recipient a licence to the Database on the terms of the ODbL.

Fair dealing and the taking of insubstantial parts

43 Clause 6 of the ODbL states that the ODbL does not affect:

(a) any rights a person may have under any law to make use of the database, including "fair dealing, fair use, or any other legally recognised limitation or exception to infringement of copyright or other applicable laws"; or

(b) any rights "of lawful users to Extract and Re-utilise insubstantial parts of the Contents, evaluated quantitatively or qualitatively, for any purposes whatsoever, including creating a Derivative Database". (It also goes on to say that the "repeated and systematic Extraction or Re-utilisation of insubstantial parts of the Contents may however amount to the Extraction or Re-utilisation of a Substantial part of the Contents".)

44 Whilst the intent is perhaps not entirely clear, the latter limb can be interpreted to mean that, where a person takes an "insubstantial part" of the Contents (which in some cases will be difficult to determine), the Share-Alike Obligation (for example) will not apply.

Licence termination

45 Under clause 9 of the ODbL, if a person breaches the terms of the ODbL, the licence to that person terminates automatically, but otherwise the licensor will not terminate the rights granted under it. Where a person has breached the terms of the ODbL and the licence has

14 Note that this does not mean an offer to the world at large. The obligation is limited to those who receive the Derivative

Database or Produced Work. In online contexts, arguably this would include those who interact with or view the Derivative Database or Produced Work.

15 The copy in machine readable form of the Derivative Database or the alteration file must be made available free of charge, if distributed over the internet, or at no more than a reasonable production cost for physical distributions: clause 4.6 of the ODbL.


terminated, the person's rights under the licence may be reinstated if the person stops breaching the terms.16

How does OSMF treat the OSM database contents?

Relevant provisions

46 As noted above:

(a) the contributor agreement governing the contributor-OSMF relationship states (emphasis added):

"OSMF agrees that it may only use or sub-license Your Contents as part of a database and only under the terms of one or more of the following licences: ODbL 1.0 for the database and DbCL 1.0 for the individual contents of the database; CC-BY-SA 2.0; or such other free and open licence ... as may from time to time be chosen by a vote of the OSMF membership and approved by at least a 2/3 majority vote of active contributors";

(b) the ODbL states expressly that it does not cover "the copyright over the Contents independent of [the] Database" and that it "does not cover any rights (other than Database Rights or in contract) in individual Contents contained in the Database"; and

(c) the grant of rights in the ODbL is "subject to its terms and conditions" (including those noted in (b) above).

47 One might expect, therefore, to see the DbCL (the Database Contents Licence) referred to on the OSM copyright and licensing page. The DbCL is a simple and broad copyright licence which states that the:

"Licensor [which in this case would be OSMF] grants to You a worldwide, royalty-free, non-exclusive, perpetual, irrevocable copyright license to do any act that is restricted by copyright over anything within the Contents, whether in the original medium or any other. These rights explicitly include commercial use, and do not exclude any field of endeavour. These rights include, without limitation, the right to sublicense the work."

48 A condition of this licence is that users must comply with the ODbL. It also contains an interestingly worded provision headed "non-assertion of copyright over facts" which states that the "Licensor takes the position that factual information is not covered by copyright. The DbCL grants you permission for any information having copyright contained in the Contents."

49 At the date of releasing this guide, however, there was no reference to the DbCL on OSM's copyright and licensing page. Minutes from OSMF's Licensing Working Group (LWG) meeting of 7 May 2013 suggest that the LWG consides that this omission needs to be remedied, as the minutes address this issue and state:

"... will action the following changes:

We clarify the role of the DbCL in our ODbL licensing as follows:

1) As per http://opendatacommons.org/licenses/odbl/, we will modify http://www.openstreetmap.org/copyright with the following text:

“OpenStreetMap is open data, licensed under the Open Database License: http://opendatacommons.org/licenses/odbl/1.0/. [Any rights in individual contents of the database are licensed under the Database Contents License: http://opendatacommons.org/licenses/dbcl/1.0/]”

16 See further clause 9.4 of the ODbL.


At the date of this guide, however, this change had not been made.

Consequences

50 One might argue that, strictly speaking, this omission means there could be a less-than-complete chain of rights passing from contributors through to end users of the OSM database contents. The links in the chain from contributors to OSMF are solid, as the contributor agreement gives OSMF the rights it needs to license the OSM to end users, but (one might argue) OSMF then uses a licence (the ODbL) that states expressly that it does not cover "the copyright over the Contents independent of [the] Database" and that it "does not cover any rights (other than Database Rights or in contract) in individual Contents contained in the Database." The result, one might argue, is that there could be insufficient copyright licensing of the OSM contents independent of the database in which they reside and that the grant of rights, to the extent it is contractual, does not fill the gap because it too is subject to the copyright-related exclusion/carve-out.

51 In this context, it is worth noting that there are likely to be scenarios in which users could be extracting substantial portions of the OSM database but without all its supporting elements; in such cases, they might be taking, say, a vast collection of nodes contributed by a single contributors which, in some countries, might qualify for copyright protection (e.g., as a compilation or substantial part of a compilation); in other words, a dataset taken from the broader database may qualify for copyright protection. In such cases (i.e., if copyright were to exist), one might argue that the ODbL does not by itself confer sufficient rights to use that collection of nodes as it expressly does not cover copyright in contents independent of the database.

52 This complexity is a result of the ODbL's separation of the overall database from its content. It is an issue that is not made any easier by the grant of rights that the ODbL confers because, despite the ODbL's express non-coverage of copyright over the contents independent of the database, the ODbL grants very broad re-use rights, which include (among other things) extraction and re-utilisation of the whole or a substantial part of the database contents (see paragraph 38 below). In other words, in one place the ODbL says it does not cover any copyright that may reside in the contents independent of the database but then goes on apparently to license the contents in a way one would (in many jurisdictions) normally see in a copyright licence. However, whether it does so effectively is debatable because, as noted above, the grant starts with the words "Subject to the terms and conditions of this License", words which can be taken to include the exclusion/carve out in clause 2.4 of "any rights (other than Database Rights or in contract) in individual Contents contained in the Database". One might argue that the words ("other than... in contract") have the effect of allowing the contractual grant to be complete but that is unclear.

53 What this produces, in the author's view, is uncertainty as to the scope of the ODbL. The solution is for OSMF to publicly include the DbCL on its copyright and licensing page to fill any potential gaps. Until such time as this is done, users are left to assume they have all requisite re-use rights when, in some jurisdictions, that may not be the case.

(It is appreciated that one might argue that no separate licence is needed, on the basis that individual facts contained within OSM are not protected by copyright. However, the legal position may get murky in some jurisdictions, such as New Zealand, where a substantial collection of nodes (a subset dataset of the overall database) might be taken to constitute a copyright work or a substantial part of a copyright work.)17

17 This is an area of law that, in many countries, is in a state of flux. How certain database issues would be decided by New

Zealand courts remains to be seen.


54 In practical terms this is unlikely to create a real risk for users, as contributors will assume that sufficient rights are conferred on others and OSMF (as licensor) may consider that individual OSM contents are not protected by copyright. From an international legal perspective, however, the position could be clear. A simple fix could make it so.

What is the legal standing of the OSM licences in New Zealand?

55 The OSM licences – the ODbL/DbCL (for the database and its contents) and CC-BY-SA (for the cartograpy in the map tiles) – have legal standing in New Zealand, that is, they would be recognised as enforceable copyright licences by New Zealand courts.18 In the case of the ODbL, New Zealand courts would also recognise the enforceable nature of the contract it creates (provided they were satisfied that, in each relevant context, the terms have been accepted in a manner required by the law of contract).

OSM Community Guidelines

56 The ODbL is a comparatively complex licence. Sometimes people have difficulties understanding and applying it. In addition, the OSM community is seeing:

(a) a wide and evolving range of circumstances in which OSM data can be used;

(b) various means by which solutions can be architected; and

(c) use cases that may, strictly speaking, involve the creation of Derivative Databases (in ODbL terms) but where the additional data is transient or otherwise unlikely to be of interest to a cross-section of the OSM community.

57 This combination of circumstances has given rise to multiple uncertainties as to the application of the ODbL, most significantly in relation to whether, in certain situations, there is a Derivative Database and whether the Share-Alike Obligation applies.

58 In an attempt to reduce such uncertainties, OSMF has set up a Community Guidelines process "for better defining certain legal terms in the specific and practical context of using OpenStreetMap data under the Open Database License".19

59 OSMF considers that "[o]n legal advice, what a Licensor says carries weight with users of our data and, potentially, [with] a judge". It adds:

"The OSM Community evolves a consensus of what we think is reasonable over time and produces a guideline (not the same as a definition, that is up to case precedent). The OSMF will then normally adopt that guideline as its official policy and allow it to incrementally improve or clarify over time."

60 As at the date of this guidance, the OSM wiki listed 9 subjects on which guidelines were either reasonably mature, in process, or new:20

(a) reasonably mature:

(i) Substantial;

(ii) Produced Work;

(b) in process:

(i) Trivial Transformations;

18 See sections 14, 17-20 and 232 of the Copyright Act 1994 and the Copyright (Application to Other Countries) Order 1995. 19 See http://wiki.openstreetmap.org/wiki/Open_Data_License/Community_Guidelines 20 See http://wiki.openstreetmap.org/wiki/Open_Data_License/Community_Guidelines for links to the individual guidelines.


(ii) Metadata Layers;

(iii) Indexing;

(iv) Regional Cuts;

(v) Horizontal Layers; and

(c) new:

(i) Geocoding (the wiki page for which was empty); and

(ii) Dynamic Data.

61 These Community Guidelines are or, in some cases, should be (when completed), useful sources of information on current community approaches to application of the ODbL to OSM.

What activities would an individual/organisation/agency be required to undertake in order to be affected by the OSM licensing?

62 At its broadest, this question raises issues of licensing of OSM contributions to OSMF and licensing by OSFM of the OSM to people who wish to re-use it.

Contributing

63 As explained in paragraphs 21-23 above, every contribution of data or other content to OSM is subject to the "contributor agreement". This:

(a) means that, each time a person makes a contribution, re-use of which would normally be restricted by copyright, database right or any related right, the person grants a broad licence to OSMF to use and license the contributions on the terms quoted in paragraph 22(b) above; and

(b) ensures that OSMF can allow re-use of OSM data on the terms of the ODbL and DbCL.

Using/re-using

64 On the use and re-use of OSM side, individuals, organisations and agencies are, as a minimum, "affected" by the OSM licensing whenever they do anything with OSM that would otherwise be constrained by applicable intellectual property laws, such as copying it or a substantial part of it, distributing it or adapting it (including making a Derivative Database). They are "affected" in two ways:

(a) first, they are authorised to do these things when otherwise they would not be; and

(b) second, in return for the ability to do such things, they are subject to certain obligations when certain conditions are met.

65 The obligations are set out in detail in the "Conditions" section at paragraphs 41-42 above.

66 The rubber begins to hit the road when assessing specific use/re-use cases. The remainder of this section assesses a number of potential use/re-use cases.

What obligations apply to a person publishing something, such as an artistic map, that is based on OSM data where the person does not supplement the OSM data with additional data?

67 If the OSM data is not being supplemented, such that the person is not creating a database based on OSM or a Substantial part of its Contents, the person is not creating a Derivative


Database. If that is the situation, the Share-Alike Obligation does not apply. The person may, however, be publishing a "Produced Work". As noted above:

(a) a "Produced Work" is "a work (such as an image, audiovisual material, text, or sounds) resulting from using the whole or a Substantial part of the Contents (via a search or other query) from this Database, a Derivative Database, or this Database as part of a Collective Database"; and

(b) "Substantial" means "substantial in terms of quantity or quality or a combination of both".

68 If the person is publishing a Produced Work, the person is required to comply with the Produced Work Notice Obligation. This requires the person to include a notice associated with the Produced Work reasonably calculated to make any Person that uses, views, accesses, interacts with, or is otherwise exposed to the Produced Work aware that data was obtained from the OSM, and that that data is available under the ODbL.21

69 In some cases different people may make different judgements as to whether a "Substantial part of the Contents" is being used, so as to satisfy the definition of "Produced Work" and 'activate' the Produced Work Notice Obligation. Where it is arguable that a "Substantial part of the Contents" is being used, it is advisable to err on the side of caution and include the requisite notice. Doing so is not particualrly burdensome and supports the open access philsophy that underpins OSM and its ODbL licensing.

What obligations apply to a person that uses OSM data in an application (e.g., a web or mobile application) to provide routing or geocoding to end users, where neither the person nor the application supplements the OSM data with other data?

70 As long as no "Derivative Database" is created, the analysis is the same as in the preceding use case.

What obligations apply to a person publishing something that is based on both OSM data and other data that the person creates or obtains from a third party source?

71 If the person is publishing a Produced Work, the person is required to comply with the Produced Work Notice Obligation.

72 Whether the Share-Alike Obligation applies to the additional data depends on whether the person has created a Derivative Database or has only created or is otherwise dealing with a Collective Database:

(a) if a Derivative Database has been created, i.e., a database based on OSM (which can include any translation, adaptation, arrangement, modification, or any other alteration of OSM or of a Substantial part of the Contents), the Share-Alike Obligation will apply to the Derivative Database, meaning the person will need to offer to recipients of the application a copy in machine readable form of:22

(i) the entire derivative database; or

(ii) a file containing all of the alterations made to the Database or the method of making the alterations to the Database (such as an algorithm), including any additional Contents, that make up all the differences between the Database and the Derivative Database;

21 See and compare OSM's "License/Use Cases", Case 2, at http://wiki.openstreetmap.org/wiki/License/Use_Cases 22 The copy in machine readable form of the derivative database or the file mentioned above must be made available free of

charge, if distributed over the internet, or at no more than a reasonable production cost for physical distributions: clause 4.6 of the ODbL.


(b) the person will only be using OSM as part of a Collective Database where OSM is being used in unmodified form as part of a collection of independent databases that are assembled into a collective whole; where that is the case, such that it can genuinely be said that no database based on OSM has been created, the Share-Alike Obligation will not apply to the data the person creates or obtains from the third party source.

73 By way of providing examples, OSMF observes that:23

(a) "if you created your data without any use of OSM, and don't merge it with OSM, then you have a "collective" database, not a derivative database. However, if you have any data that was derived from OSM – for instance because you used street names from OSM, or you geocoded your data using the locations of roads or building shapes in OSM – then you are making a derivative database"; and

(b) "it makes no difference whether you store the data sets separately, or together in the same "database" software, whether that is a RDBMS, NOSQL, filesystem or anything else. So long as the other data isn't derived from OSM, the result is a Collective Database, not a Derivative Database. However, if you derive a further set of data that combines the two – an example might be a database that includes merged records that contain road names or lengths from OSM and the speed limit of the road from the other dataset – that database is derivative from OSM" (and therefore a Derivative Database).

74 The other point to note, if a third party data source is being merged with OSM data, is that the ODbL prohibits a person from adding data to a "Publicly Used Derivative Database" that are incompatible with the rights granted under the ODbL; in other words, there must be no restrictions preventing those Contents from being openly accessed and used by others.

If a person saves OSM nodes in a new database so that metadata from another database/system/programme could be referenced back to the OSM node(s), would this constitute a Derivative Database?

75 This is a variation on the theme of the previous question.

76 In OSM-speak, a "node" is "one of the core elements in the OpenStreetMap data model", consisting of "a single geospatial point using a latitude and longitude". Recording of altitude is an optional third dimension. The OSM wiki notes that nodes "can be used to define standalone point features or be used to define the path of a way" and gives this example of the data contained in a node:24

<node id="25496583" lat="51.5173639" lon="-0.140043" version="1" changeset="203496" user="80n" uid="1238" visible="true" timestamp="2007-01-28T11:40:26Z"> <tag k="highway" v="traffic_signals"/> </node>

77 The common scenario that this question addresses is where a developer wishes to take multiple nodes from OSM and use them in a new database. In this situation, if it can be said that:

(a) a "database based upon the Database (the OSM database that is)" has been created (which could be through arrangement or modification of a Substantial part of the Contents, including Extracting or Re-utilising all or a Substantial part of the Contents in a new database); and

23 See OSM's "License/Use Cases", Cases 3 and 4, at http://wiki.openstreetmap.org/wiki/License/Use_Cases 24 See http://wiki.openstreetmap.org/wiki/Node


(b) the number of nodes taken amounts to more than an "insubstantial part of the Contents, evaluated quantitatively or qualitatively",

then a Derivative Database will have been created.

78 It may help to flesh out the previous paragraph by reference to what makes a given use "Substantial" or "insubstantial". As noted above, under the ODbL "Substantial" means "substantial in terms of quantity or quality or a combination of both",25 and is relevant to the existence of a "Derivative Database" given that "Derivative Database" is defined as:

"... a database based upon the Database, and includes any translation, adaptation, arrangement, modification, or any other alteration of the Database or of a Substantial part of the Contents. This includes, but is not limited to, Extracting or Re-utilising the whole or a Substantial part of the Contents in a new Database".

79 The corollary of "insubstantiality" is relevant because clause 6 of the ODbL states that the ODbL does not affect any rights "of lawful users to Extract and Re-utilise insubstantial parts of the Contents, evaluated quantitatively or qualitatively, for any purposes whatsoever, including creating a Derivative Database".26

80 The uncertainties that these terms can create in practice have prompted OSMF to produce an "Open Data License/Substantial – Guideline".27 OSMF recognises that only the courts can ultimately decide what is substantial or insubstantial in a given context but notes that community norms can still be helpful to avoid disputes arising. Rather than define "Substantial", the Guideline focuses on what is "insubstantial", adding that if "an extract does not fit the definition of insubstantial then it should be considered Substantial. The essence of the Guideline is as follows:

"What is Insubstantial

In the discussion below a Feature is defined as being a Way (such as part a road with the same characteristics) or an independent node such as a Point Of Interest for an eating place. A node within a Way is not considered to be a feature. An area feature, such as the outline of a wood is considered to be a feature. A section of coastline is considered to be a feature - the whole coastline of a large landmass is made up of many linked features.

The OpenStreetMap community regards the following as being not Substantial within the meaning of our license provided that the extraction is one-off and not repeated over time for the same or a similar project.

• Less than 100 Features.

• More that 100 Features only if the extraction is non-systematic and clearly based on your own qualitative criteria for example an extract of all the the locations of restaurants you have visited for a personal map to share with friends or use the locations of a selection of historic buildings as an adjunct in a book you are writing, we would regard that as non Substantial. The systematic extraction of all eating places within an area or at all castles within an area would be considered to be systematic.

25 In addition, the repeated and systematic Extraction or Re-utilisation of insubstantial parts of the Contents may amount to

the Extraction or Re-utilisation of a Substantial part of the Contents. 26 One might note, in this context, that clause 4.4 (Share-alike) and clause 6 (Fair dealing, Database exceptions, and other

rights not affected) do not sit entirely comfortably together, as clause 4.4 purports to impose the Share-Alike Obligation on all "Derivative Databases" that are Publicly Used whereas clause 6 contemplates a category of Derivative Databases that are not affected by the Licence (and which therefore, arguably, do not need to comply with the Share-Alike Obligation).

27 Available at http://wiki.openstreetmap.org/wiki/Open_Data_License/Substantial_-_Guideline, licensed under a Creative Commons Attribution-ShareAlike 2.0 (Generic) licence: http://creativecommons.org/licenses/by-sa/2.0/


• The features relating to an area of up to 1,000 inhabitants which can be a small densely populated area such as a European village or can be a large sparsely-populated area for example a section of the Australian bush."

81 If a Derivative Database has been created, the developer's obligations depend on whether the Derivative Database is being used internally or publicly:

(a) if the Derivative Database is only being used internally (e.g., within an agency or a company), none of the General Notice Obligation, Produced Work Notice Obligation and Share-Alike Obligation applies and there are generally no restrictions;28

(b) by contrast, if the developer publishes or Publicly Uses the Derivative Database, the General Notice Obligation and the Share-Alike Obligation apply; in addition, if a person publicly distributes, copies or displays a Produced Work (a work, such as a new map, resulting from using the whole or a substantial part of, for example, the OSM or a Derivative Database) the Produced Work Notice Obligation applies.

But is mere "geocoding" really subject to the Share-Alike Obligation?

82 This question is likewise a variation on previous themes but is asked given its currency in the OSM community.

83 For present purposes, geocoding can be considered "the process of finding associated geographic coordinates (often expressed as latitude and longitude) from other geographic data, such as street addresses, or ZIP codes (postal codes). With geographic coordinates the features can be mapped and entered into Geographic Information Systems, or the coordinates can be embedded into media such as digital photographs via geotagging."29

84 There appear to be different views within the OSM community as to whether at least certain kinds of geocoding activity are or ought to be subject to the Share-Alike Obligation, the primary questions usually being whether a Derivative Database has been created and whether the user is extracting or re-utilising an insubstantial part of the OSM contents.30 One only needs to browse through the "legal talk archives" to see the differences in views on this issue.31

85 Until such time as the proposed Community Guideline on Geocoding is prepared and approved, users must continue to decide for themselves (if necessary with legal advice) whether, in terms of clause 4.4 (Share-Alike) of the ODbL, their activity involves them:

(a) "Publicly" (to persons other than themselves or under their control);

(b) "Using" (doing any act restricted by copyright or Database Rights whether in the original medium or any other, including distributing, copying or publicly displaying);

(c) a "Derivative Database" (a database based upon the Database, including any translation, adaptation, arrangement, modification, or any other alteration of the Database or of a Substantial part of the Contents (which includes Extracting or Re-utilising the whole or a Substantial part of the Contents in a new Database)).

86 If the answer is yes, the Share-Alike Obligation is triggered, unless it can be said that only an insubstantial part of the OSM contents is being used (this question will usually, but not

28 See also OSM's "License/Use Cases", Case 1, at http://wiki.openstreetmap.org/wiki/License/Use_Cases 29 See http://en.wikipedia.org/wiki/Geocoding 30 Most people appear to think that the first question subsumes the latter, i.e., that the substantial threshold must always be

met in order for there to be a Derivative Database. That approach is understandable but does not sit comfortably with clause 6.2 of the ODbL, the drafting of which contemplates that a Derivative Database could be created by the extraction or re-utilisation of insubstantial parts of the Contents.

31 See https://lists.openstreetmap.org/pipermail/legal-talk/, particularly the June 2013 threads: https://lists.openstreetmap.org/pipermail/legal-talk/2013-June/thread.html See also http://gis.19327.n5.nabble.com/ODbL-quot-virality-quot-questions-td5273140.html


necessarily always, already have been considered when assessing whether there is a Derivative Database).

87 It follows that those who need, for whatever reason, to use the OSM database but not license third party data that they are also using as part of their product or service, would need to be able to say either that:

(a) they are only using an insubstantial part of the OSM contents; or

(b) have produced and are relying on a Collective Database32 rather than a Derivative Database.

88 Alternatively, it might be possible to narrow the scope of the Derivative Database by architectural means, such that one is dealing with both a narrow Derivative Database (to which the Share-Alike Obligation applies if it or a Produced Work that uses it is published) and an independent database. The key question here will likely be whether the "independent database" is truly independent, bearing in mind the ease with which some may try to circumvent the Share-Alike Obligation through the use of linked identifiers.

89 It also noteworthy that OSMF's Legal FAQ contains this question and answer (note, in particular, the portion that we have italicised):

"3d. If I use your data together with someone else's data, do I have to apply your license to their data too?

If the two datasets are independent, no, you don't; this is a Collective Database.

If you adapt them to work together (for example, by taking footpaths from the OSM data, roads from the third-party data, and connecting them for routing), this is a Derivative Database and so you must ... . However, if the two datasets are matched "trivially" by, for example, automated matching using a simple criterion such as name/locality, this is not "substantial" and remains a Collective Database. There is a Community Guideline on what constitutes a trivial transformation."

90 Whilst the italicised passage should not be taken as a statement by OSMF of the definitive legal position, it is nevertheless interesting as a statement of OSMF's (or perhaps a part of the OSM community's) interpretation of a kind of matching that is considered to be insubstantial.

91 In gray areas cases these may be questions of judgement and degree. They are not questions on which more detailed guidance can or should be given in a practical guide like this one. Indeed, in some cases the definitional complexity or ambiguity in the ODbL, coupled with the absence of case law on it and the likelihood that equally capable lawyers (or judges for that matter) could interpret the ODbL differently, may create intractable problems.

92 This all leads to a significant practical point: given the differences of opinion within the OSM community as to whether certain types of geocoding (for example) are or should be subject to the Share-Alike Obligation, a real question that arises is whether OSMF, as the licensor that is entitled to take action for breach of the ODbL, would actually take any action in borderline cases, let alone expensive and time-consuming legal action in the courts of either the United Kingdom (as the place in which OSMF as an entity exists) or the country in which a debatable breach might have occurred. It is suggested that the likelihood of legal action in genuinely borderline cases, where there is no obvious commercial attempt to subvert the

32 As noted above, "Collective Database" means "this Database [in this case the OSM] in unmodified form as part of a

collection of independent databases in themselves that together are assembled into a collective whole. A work that constitutes a Collective Database will not be considered a Derivative Database".


'open and free' rationale of OSM, is low if not negligible. Arguably of more importance in practical terms is what the OSM community thinks given the community-driven nature of OSM. It is for this reason that clear community guidelines on issues such as geocoding are so important.

93 If and when a Community Guideline on Geocoding is released, its practical utility will be that, despite the ODbL's wording and the potential for various interpretations of it in various circumstances and jurisdictions, OSMF as licensor is unlikely to bring an action in relation to conduct that falls within the Guideline (and if it did, questions of waiver or estoppel might arise so as to prevent OSMF insisting on a different interpretation). Similarly, the OSM community is likewise unlikely to complain about conduct that falls within the Guideline.

94 Early work in 2012 by the OSMF Licensing Working Group shows that the Group was considering so-called "Edge Principles" for helping develop norms as to what would and would not be considered to be affected by the Share-Alike Obligation.33 The four draft principles under consideration were:

(a) Substantial / Insubstantial (under which small amounts of geocoding would be permissible and not affected);

(b) In Scope / Out of scope (list of inclusions and exclusions by reference to utility/interest to the OSM community);

(c) Like for Like (you share the same kinds of data as you pull from OSM); and

(d) Temporary Use (if OSM data is thrown away after the relevant service provision, Share-Alike does not apply).

95 Whether any of these principles will make their way into a Community Guideline remains to be seen. In the meantime, it is suggested that, in borderline cases, agencies and others document their reasons for either:

(a) adhering to the Share-Alike Obligation; or

(b) justifying their position that they are not subject to it, either at all (because there is no Derivative Database or only an insubstantial part of the OSM contents are being used) or only in relation to a Derivative Database of narrow scope.

96 Government agencies need to appreciate that such documented justifications, unless legally privileged or otherwise exempt under another relevant withholding ground, may need to be disclosed if requested under the Official Information Act 1982.

If a person creates a Derivative Database for use with a commercial application that contains intellectual property (IP) owned by the person, does that IP need to be licensed under the Share-Alike Obligation?

97 The ODbL is concerned with regulating the use of data in the relevant database, in the sense of:

(a) ensuring that people who publish or distribute the database acknowledge that it is openly licensed under the ODbL; and

(b) ensuring that Derivative Databases are likewise openly licensed under the ODbL,

thereby ensuring that the data and modifications to the data remain publicly accessible and usable on open terms.

33 See OSMF Licensing Working Group "An analysis of Share-Alike Virality for Geocoding and Reverse-Coding" at

https://docs.google.com/document/pub?id=1Ag81OlT1TtnhYwVE-bBtL018SNoU_V-anG4wLdwMT4c


98 The ODbL's Share-Alike Obligation does not extend to other intellectual property, i.e., beyond the data. So, for example, the ODbL does not require the source code, graphics and design elements to be licensed/shared with others.34

99 The party that distributes the application must:

(a) include a notice that informs people that the application uses data from OSM and that the data are available under the ODbL; and

(b) offer to recipients of the application a copy in machine readable form of:35

(i) the entire derivative database; or

(ii) a file containing all of the alterations made to the Database or the method of making the alterations to the Database (such as an algorithm), including any additional Contents, that make up all the differences between the Database and the Derivative Database,

but does not (under the terms of the ODbL) need to share other intellectual property developed in connection with the commercial application that is separate from the Derivative Database.

If a Derivative Database is created as a web-service for app developers to use for reference or routing, what flow-on affects would the OSM licensing have on the app developers?

100 In this scenario, the Derivative Database is being made publicly available (in ODbL terms), and would need itself to be made available under the ODbL.

101 Downstream developers utilising the Derivative Database would then likewise be subject to the ODbL conditions in the circumstances where they apply. In this way, the ODbL has a downstream propagating effect, much like the GPL software licence does.

34 See further the "Legal FAQ" on the OpenStreetMap wiki, question 3(c): http://wiki.openstreetmap.org/wiki/Legal_FAQ

Note that if the source code were based on existing open source software licensed with the GPL then separate obligations under the GPL may arise. Similarly, if the graphics and design elements were based on pre-existing works licensed under a Creative Commons Attribution Share-Alike licence, share-alike obligations under that licence may arise. These, however, are separate questions. They are not consequences of the ODbL.

35 The copy in machine readable form of the derivative database or the file mentioned above must be made available free of charge, if distributed over the internet, or at no more than a reasonable production cost for physical distributions: clause 4.6 of the ODbL.

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