Difference between revisions of "4.0/Sui generis database rights"
(note: started alongside d3, also this is not legal advice)
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Revision as of 20:46, 14 February 2013
Version 4.0 of the CC license suite addresses sui generis database rights (SGDRs) in addition to copyright and the other copyright-like rights covered in earlier versions. Because SGDRs can impede a user's ability to share, reuse, and modify a work in the same way that copyright can, 4.0 makes it clear that these permissions apply to works that would otherwise be restricted by SGDRs as well.
SGDRs are protective rights granted in some countries to databases, including databases that would not ordinarily qualify for copyright protection. Normally, copyright extends only to creative works. A database that is just a compilation of factual information, without any particular creativity in the selection or arrangement of those facts, is not protected under copyright.
Jurisdictions with SGDRs extend exclusive rights to database makers (including makers of unoriginal databases not protected by copyright) and the result is similar to copyright: if you want to share, copy, or reuse a substantial amount of data from a database subject to SGDRs, you must get permission or a license from the holder of those rights. SGDRs are separate from any copyright in the actual contents of the database. (For example, a database of photographs may be subject to SGDRs held by the database maker, but the copyright in the actual pictures may be held by third parties.) SGDRs are most common in the European Union, where the EU Database Directive establishes them to protect to economic investments of those who make databases. But they also appear in several other countries, like Korea and Mexico.
In the 4.0 licenses, these rights are mentioned separately from other copyright-like rights, because the differences in the way databases are used and adapted and the nature of the protections offered under SGDRs make it necessary to clarify how the license grant applies to SGDRs. Treating them just as if the rights are the same as copyright is not an option CC feels is acceptable for our international, legally robust licenses.
When these rights apply
SGDRs apply (1) when the law of a jurisdiction that has adopted SGDRs applies to the creation of the database--usually, when the database was created by a person or entity in one of those jurisdictions--and (2) when you are using the database in a jurisdiction which recognizes those rights.
If either of those conditions is not present, your use of the database is not subject to SGDRs.
Databases not subject to SGDRs
If the database you are using is not subject to SGDRs, then the changes made in the 4.0 licenses to accommodate those rights has no effect for you, and the license will operate as it did for licensed databases in prior versions. This generally means that you are only restricted by any potential copyright in the database or its contents; if there is no copyright, you may make use of the database without restriction under the CC licenses.
How SGDRs interact with the CC license elements
Each CC license has different implications for what you can do with a database subject to SGDRs. All six licenses permit search, extraction, and reuse of the database contents, though sometimes only upon compliance with the specified conditions.
In order to determine whether you can make your desired use of a database subject to SGDRs (and if so, what conditions apply), you also need to figure out if your use actually creates Adapted Material, a term defined in the 4.0 licenses. Adapted Material is created when all or a substantial portion of the database contents is extracted and reused in a database that qualifies on its own for protection under SGDRs that you (the reuser) holds because SGDRs are granted to you by applicable law. Any other use of the licensed database is a use of the original material, does not produce Adapted Material.
Knowing when a use involves database rights, and the License Elements
When you are reproducing all or a substantial portion of the contents of a database subject to SGDRs, your use depends on the database rights that are granted to you. For example, if you access a CC-licensed database of donors to a particular cause, and you wish to combine that database with a list of donors to another cause and publish a consolidated list, then your use depends on the licensed SGDRs if the licensor holds those rights. Similarly, if you wish to extract and publish all of the names from the licensed database belonging to a large geographical region, your use involves republishing a substantial portion of the contents and also depends on SGDRs.
Not all uses of material from a database involve database rights. For example, simply taking one element from the data set and quoting it does not involve a substantial portion of the database, and does not require permission under SGDRs. (However, there may still be copyright considerations: for example, if you have a database of photographs, and you wish to use an individual photo, you do not have to be concerned with database rights, but copyright may come into play with respect to the individual photo.) Similarly, if you write a report summarizing the contents of the database without republishing the actual database elements, your use does not depend on database rights, as you have not reproduced the actual contents.
The below assumes that the CC-licensed database is restricted by SGDRs held by the licensor, and that you (the licensee) are restricted from using the database because the law applicable to your use provides those rights.
Under the CC licenses, attribution has always been tied to public sharing of the licensed material. This is true in the context of databases with SGDRs as well: you must provide attribution when you are publicly sharing all or a substantial portion of the database contents. However, if you are using the database only in a private context, you are not required to provide attribution for that use.
When a database is under one of the NC licenses, your extraction and reuse of its contents must be non-commercial in nature, even if your use would implicate copyright and similar rights and thus not trigger other conditions in the license. Note that in many situations (but not all) mining a database will depend on SGDRs and therefore must be done for non-commercial purposes only, unless it falls within an exception or limitation to SGDRs. Additionally, if you create adapted material from a licensed database by extracting and reusing a substantial portion of its contents in a database that qualifies on its own for protection under SGDRs, you may use that other database for non-commercial purposes only.
When a database is under one of the ND licenses, you may not create adapted material from it--which is to say, you may not extract and reuse all or a substantial portion of its contents in another database that qualifies on its own for protection under SGDRs that you hold, even if you do not Share the resulting database. Other uses of the database do not create adapted material, and are permitted.
When a database is under one of the SA licenses, if you create adapted material from it by extracting and reusing all or a substantial portion of its contents in a database that qualifies on its own for protection under SGDRs, you must use share alike your rights to that other database (but not the database contents). Other uses of the database do not create adapted material, and are not required to be shared alike.