The German OpenStreetMap community explains below the possible impacts of Article 13 of the new EU Copyright Directive on OpenStreetMap. Source: https://www.openstreetmap.de/uf/en.html (with minor modifications)

On 26 March 2019, the European Parliament will vote for a third time on the new EU Copyright Directive. Article 13 of the new directive will de-facto force content platforms to filter uploaded contributions by their users. If a platform does not prevent uploading of copyright-protected content in accordance with “high industry standards of professional diligence” (i.e. upload filters), the operator of the platform is liable for copyright violations of their users. The new rules can be met by the large platforms, such as Google, Youtube and Facebook. Small, independent and free platforms like OpenStreetMap would be forced to introduce such filters or face catastrophic liability. This threatens our project.

The European Parliament passed the bill on 12 September 2018 despite noticeable civil society protest. Since then, the European Commission, the Council of Europe and representatives of the parliament, negotiated a compromise. It is expected that the parliament will vote on the compromise in the last week of March. We think that passing the bill would harm the OpenStreetMap and many other small and medium-sized platforms – regardless of whether they are commercial or not. If OpenStreetMap had to invest more resources on pre-filtering content than on anything else, the project would be a shadow of its former self. If nothing changes, a dark future awaits us.

The OpenStreetMap Foundation, FOSSGIS e.V. – the official local chapter in Germany – and OpenStreetMap France – the official local chapter in France – campaign for free map data. We usually do so in financial and technical matters but sometimes we are forced to become active in politics to defend the project.

But the directive does not mention upload filters, does it?

The term is not used in the current version of the draft. But operators of platforms will be liable for copyright violations of their users if they do not meet the following conditions:

1. They must have made “best efforts” to get a licence to use the uploaded content.
2. They must have made best efforts to ensure that their platform does not publish content if copyright holders have provided them with the necessary information.
3. If they are informed about a copyright violation, they have to remove the content, or disable access to them, immediately.

Until now, platforms were excepted from strict liability if they reacted immediately to a notification of a copyright violation. This new directive would force platforms to use either upload filters or review all contributions manually. Upload filters are the “high industry standard of professional diligence”. For example, Google uses them on Youtube.

What’s the problem with upload filters?

Upload filters have a number of issues for small and medium sized and/or free and independent platforms like OpenStreetMap and Wikipedia:

• These filters do not work as reliably as required. Even now, and definitely under the new directive, they tend to be too zealous, by erring on the side of caution and excluding more than they should.
• The operators of small and medium sized platforms will be forced to purchase the filter technology from large companies to keep up with the current state of filtering technology. This gives more power, and money, to large companies, centralising their power even more.
• The rules will affect any website where users can upload copyrighted content. These are not only social networks but blogs with comments and forums as well. Small and new platforms lack the required financial resources to buy the filters. They will be exempted from the first and second condition (attempt to get a license and prevent uploads of copyrighted contents) if their annual turnover is below EUR 10 million and they are less than 3 years old. But three years is a short time. If the number of users exceeds 5 million, condition 3 (prevent re-upload of illegal content) must be met.

The directive aims to oppose the business model of big US companies. Indeed, the business model of Google and others is not always well aligned with public interests, but the directive will harm small and medium sized competitors, not the large ones.

Why do upload filters harm OpenStreetMap?

The OpenStreetMap project emphasises openness. Map changes by all users, new and experienced, are applied immediately and are provided to all other data processors immediately. The map is always as up to date as possible.

Upload filters are very impracticable for multiple reasons:

• OpenStreetMap records the reality as it is. Other map data providers do the same. If OpenStreetMap compared the submissions with other datasets, many false positives would occur. Our data is if it is correct, very similar to the data of other map providers. A road in OpenStreetMap has the same curves, the same name, the same speed limit.
• If a user uploads changes which are rejected by a filter, these changes have to be rejected as soon as possible. This requires the time of our volunteers, who would like to improve the map rather than checking whether a filter returned a false positive.
• If a rejected contribution and a contribution of another user edit the same object in the database, a editing conflict occurs. They cannot be solved automatically because our world is too complex. Some conflicts are not that obvious: If two users add the same recently erected building, the two of them create a new object. In reality, this is a building recorded twice in our data.
• If an edit by a new contributor is rejected by the filter although the edit is fine, the contributor becomes demotivated due to a lack of positive feedback.
• The development, setup and optimisation of the filter requires a large amount of work from our volunteer software developers. Maybe we will have to spend money to purchase services. Both the work of our volunteers and the donations and membership fees are precious limited resources which can be better spent elsewhere to take our project forward.

There is an exception for Wikipedia, isn’t there?

It is not clear whether the “Wikipedia exemption” would be valid for OSM and even Wikipedia does not feel confident: María Sefidari Huici, member of the board of Wikimedia Foundation, calls the proposed changes a threat for the living and free internet. The Wikimedia Foundation, the organisation behind Wikipedia, doubts that this exemption satisfies their requirements. We share these doubts.

The directive has to be implemented in national law by EU member states. The implementation will not be the same among the countries. Some differences are possible. In some countries, terms like “commercial” and “business-like” are interpreted very strictly. Our data is used in commercial environments a lot. There are many companies using our data and contributing back to OpenStreetMap by developing software or paying their own data contributors – or just by making OSM available to the broad public. If OpenStreetMap becomes harder to use for commercial data purposes, due to these new restrictions, it will harm all of us.

What can I do to oppose the directive?

There are multiple options to become active:

• Sending emails to MEPs is not useful or effective. It is likely that would be treated as spam and/or boost the (false) impression put forward by some advocates of the directive that the folks against the directive are “Google’s bots”.
• You can phone your MEP and try to convince them. savetheinternet.info/contact-your-mep provides phone numbers and a filter by country of origin.
• Our number one request is that you join a protest. Join one of the many demonstrations or organise one yourself. There is a day of action in more then 30 cities all over Europe on 23 March. Dates and locations can be found at savetheinternet.info.

The web site saveyourinternet.eu provides suggestions and support to get in touch with members of the European Parliament. If we succeed in explaining to enough MEPs that upload filters as described in article 13 are a bad idea, the Parliament can reject the article or the whole proposal.

Press contact

Enquiries can be answered by the Communication Working Group at press@osmfoundation.org. As the Working Group members are volunteers, we invite you first to use your favorite search engine to see if your question has been answered in our forum or mailing lists. You can also ask your questions on the forum (OpenStreetMap account required for log-in), our mailing lists and in our chat rooms.

What is OpenStreetMap
OpenStreetMap was founded in 2004 and is a international project to create a free map of the world. To do so, we, thousands of volunteers, collect data about roads, railways, rivers, forests, buildings and a lot more worldwide. Our map data can be downloaded for free by everyone and used for any purpose – including commercial usage. It is possible to produce your own maps which highlight certain features, to calculate routes etc. OpenStreetMap is increasingly used when one needs maps which can be very quickly, or easily, updated, such as ambulance services, fire brigades, humanitarian development and humanitarian crises response.

What is the OpenStreetMap Foundation
The OpenStreetMap Foundation is a not-for-profit organisation, formed in the UK to support the OpenStreetMap Project. It is dedicated to encouraging the growth, development and distribution of free geospatial data for anyone to use and share. The OpenStreetMap Foundation owns and maintains the infrastructure of the OpenStreetMap project.

Source: https://www.openstreetmap.de/uf/en.html with minor modifications

Google have a couple of really enlightened guys called the “Data Liberation Front“. Their role is to make it easy for people to get their data out of Google – rather than it being locked in.

Usually, people are locked in by the lack of an export feature, or an obscure file format. In mapping, people are locked in by licences.

In Google Maps’ case, you can create your own work by tracing over aerial imagery. But you can’t use this work elsewhere, because of the licences and terms of use. (The phrase “derived work” usually crops up around now.)

At the Society of Cartographers’ Summer School last week, there was a great workshop on making a mashup from Google imagery – but when the question arose about taking the data out of Google and using it elsewhere… well, then things got a little hazy.

Google could fix this by saying that tracing from their imagery is ok – just like Yahoo have done. Or, alternatively, they could give us a clear “no”. Right now no-one really knows where they stand.

The Data Liberation Front ask people to vote for their favourite suggestions. We’ve added this as a suggestion and, at the time of writing, it has 585 votes – over four times the next most popular.

You can vote by going to http://url.ie/2ero. OpenStreetMap has shown the way in liberating geodata – maybe it’s time that some of these other guys caught up.

Ever since OpenStreetMap was founded three years ago, the licence has been one of the most debated aspects of the project.

At present, every OSM contributor agrees that their contributions can be used under the Creative Commons Attribution/ShareAlike licence, version 2 (CC-BY-SA 2.0, for short). This means:

• Anyone can copy OSM data.
• But if you incorporate it into something else, that “something else” also has to be copiable under the same terms and conditions (ShareAlike).
• When you copy it, you have to give credit to the copyright owner (Attribution).

It seems uncontroversial on first glance. But, as ever with things legal, the devil is in the detail. Do you have to give credit to ten thousand different mappers named individually, or just to “OpenStreetMap”? Does “incorporating it into something else” include adding extra layers of info over the top, as in a map mashup?

These, and similar questions, have kept the subscribers to our legal-talk mailing list happily arguing for over a year now. Many of the problems arise because Creative Commons (the “CC” of our licence), as the name suggests, is largely concerned with “creative works” – music, literature, art, and so on. OpenStreetMap, on the other hand, produces data: a factual, uncontroversial recording of the world around us.

When OSM started, we were on our own. No other website had a significant corpus of user-generated, publicly-licensed data. Few had open data of any sort. So it’s not surprising that no obvious licence was available.

Today, the situation is a little brighter. Open data is recognised as a fast-growing movement – and fortunately, this means that those with talents in drafting licences are applying their knowledge to the same problems we’ve run up against.

The situation today

As the elected OpenStreetMap Foundation, we’ve been discussing this in our board meetings for the past few months.

We are aware there are serious risks in continuing as we are. Partly this is out of a desire to do better: if a substantial number of people are unhappy with the licence, we want to see if we can find a solution that also satisfies those who are happy with the status quo.

Most importantly, though, there is a strong body of legal opinion that our existing licence is not valid (for our purposes) in most of the world. Creative Commons bases its licences on copyright. In Europe, however, geographical data is principally protected by database right, and in the States, the only available protection is contractual. OSM data is potentially in a curious unlicensed limbo at the moment, which will not protect us if a major geodata company, for example, decides to take our data without respecting the intent of the licence. (See here for a EU angle, here for a US angle; for Creative Commons’ position, see the third paragraph here, and here at §5.2.)

As the Foundation, we do not control the project, but we look out for its best interests. So we would be negligent if we did not look for alternatives.

Finding a way forward

So here are the presumptions that we have brought to our work:

1. We need to consider alternatives to CC-BY-SA 2.0 for future licensing of OSM data.
2. At heart, to gain widespread community acceptance, the licence needs to give our database the same three basic licensing elements (freely copiable; share-alike; attribution required) as it has at present.
3. It must acknowledge the reality that we are one database with many contributors.

Of course, it goes without saying that any recommendation we make must have the best interests of the project and the community at heart – however hard that might be for any of us who have our own strongly-held views on the matter.

The Creative Commons approach

Through its Science Commons initiative, Creative Commons has recently published a “protocol” on open access data. Its primary focus is scientific data.

Its approach is unusual. It mandates that all such data be placed in the public domain, with no share-alike or attribution clause. Instead, these requirements should be expressed as a “non-legally binding set of citation norms”. In other words – the data provider can ask that those using the data share-alike and give attribution, but cannot insist on it.

Why is this the case? In the protocol, Creative Commons restates the problem that copyright simply does not apply universally to factual information. “Many users choose to apply common-use licenses such as the GPL and CC in order to declare their intent […] But a user would be able to extract the entire contents (to the extent those contents are uncopyrightable factual content) and republish those contents without observing the copyleft or share-alike terms. The data provider, based on our research, is likely to feel ‘tricked’ by this outcome. That is not a desired result.”

This is an accurate summary of the situation. However, their solution – putting all the data into the public domain – is unpalatable to some OSM contributors. Here’s why.

In the science world, for which this protocol is intended, citation is an everyday part of life. Learned articles will always cite those whose work they are building on, and will be disregarded by peers if they don’t. When Science Commons speak of a “non-legally binding set of citation norms”, they can do so in the expectation that these norms will be respected. SC’s John Willbanks says as much in this interesting post: “It seemed we had to think about taking all these social goals and moving them outside the legal world, and into the world that scientists controlled – norms.”

That isn’t necessarily the case with geographical data. If a big mapping company like TeleAtlas or Navteq were to use OSM contributors’ work in their data, there’s no commercial imperative for them to credit us – let alone to make the rest of their data available on our terms. Our work will be used outside the world that we control.

Other OSM contributors say “so what?”, reasoning that the low cost, high quality and regular updates of free data will always win out over the commercial product. But even those with such views (among whom I personally count myself) do acknowledge that they’re not held universally within the community, making a licence on those terms unlikely to be adopted by all.

The alternative

So if Creative Commons’ existing licence may not be valid, and their new licence is unlikely to be palatable to many OSM contributors, where do we go from here?

The most promising answer, so far, is provided by the Open Data Commons project. The ODC is principally the work of two lawyers, Jordan Hatcher and Charlotte Waelde, specialists in intellectual property law as applied to electronic content and with significant geographical expertise. They have worked with Creative Commons (indeed, the open access data protocol is largely their work), and have been generously sponsored by scientific data firm Talis.

As well as the public domain dedication that they have provided for Creative Commons, they also drafted a pair of licences (the Open Data Commons Database Licence and the Open Data Commons Factual Info Licence) which together provide a set of provisions particularly suitable for OSM data. Key points include:

• The database is protected by share-alike (ODCD 4.4).
• Attribution to the project is required (ODCD 4.2b).
• The licence works through copyright, database right and contract, making it applicable across different jurisdictions (ODCD preamble).
• The extent of share-alike is expressly stated (ODCD 4.5).

In other words, the licence retains the fundamentals of OSM licensing – freely copiable, share-alike required, and attribution required; is unambiguously valid for data; and provides definite answers to those questions of interpretation (such as who to attribute and how far sharealike extends).

Where now?

Work on the ODC Database Licence and Factual Info Licence has unavoidably been slowed down by the Creative Commons public domain project. But both Jordan Hatcher and the project’s sponsors Talis have assured us that work is going ahead, and that a new revision will be available in the near future. As Jordan writes on his blog, “the Open Data Commons Database Licence and the Factual Information Licence are on hold during development of the new legal tools (the PDDL and Community Norms) but not forgotten.”

Paul Miller at Talis has already kindly given us his time to discuss the licence and we hope to meet with Jordan as the project moves on.

If the Foundation then believes that the licence is settled enough to be considered a viable option for OSM, we will recommend to the contributors – you – that we adopt this as the new licence going forward, for both existing and new data. We can’t change anything without you. You, not the Foundation, own the rights to your mapping.

The ideal situation would be that the ODC licences are suitable, and that not just the Foundation, but everyone involved in OSM agrees. If that’s the case, then we can publish the new terms without significant loss of existing data. If there are major objections, of course, we will either withdraw the proposal entirely, or weigh up the dangers of retaining the existing licence against the potential withdrawal of data. We are hopeful that the ODC licences are sufficiently in tune with the “spirit of OpenStreetMap” that this will not arise, but need to be alert to the possibility.

OSM isn’t just “open” in name – we believe in openly discussing the matters affecting the future direction of the project. If you have concerns or, conversely, would like to express your support, then please do discuss it on the mailing lists or forum; or, as at any time, contact any of the Foundation board (Corey Burger, Etienne Cherdlu, Steve Coast, Michael Collinson, Richard Fairhurst, Mikel Maron, Andy Robinson), or e-mail us collectively at team@osmfoundation.org.

Fixing “the licence problem” might be something that many have thought impossible, but we are hopeful that if we really want to resolve it, we can find a solution that will benefit OpenStreetMap and stand us in good stead for the years to come.

— Richard Fairhurst