OpenStreetMap
[This is a work in progress, IANAL and this isn’t legal advice]
Lots of data is Switzerland is produced by the cantonal GIS offices (while it might seem to originate from swisstopo it often doesn’t), for example the hiking path/trail data is all cantonal and we can only utilise such data, even when using the data distributed by swisstopo, if the cantonal terms are compatible with our license.
In the following I’m using open in a hand wavy, “close enough” fashion here, and not applying the strict definition as per the open defintion. Class A refers to the federal ordinance definition for generally accessible geo data1.
To set the scene: Switzerland does not have sui generis database rights regulation or anything similar, nor does it adhere to a sweat of the brow copyright doctrine. Between non-government entities any (minimal) protection available is based on contract and fair competition law. The big exception is geo data where the federal government has written in to law rights that are essentially a “data copyright light” and many of the cantons have followed suit.2 There is no relevant case law that I know of and how any of this would work out in an actual dispute is, well, open.
The cantonal regulations are, being nice, quirky. For example Appenzell Ausserrohdens reference to federal copyright law that is going to put any lawyer that needs to determine if access is possible in to a tail spin. And while referencing GeoIV Art 30 (the federal ordinance) as Luzern does, would superficially seem to be good given that we have access to swisstopos data, it actually rules out use in OSM.3 Most of the No entries for otherwise “open” data are due to downstream attribution requirements. In some cases the “ToU” or similar are available in separate documents or are distributed with the data, obviously I can’t make any overall statement in such cases.
NOTE this does not cover access to cadastre data (AV, Amtliche Vermessung) that typically has specific regulations, but naturally if “normal” class A data isn’t open the cadastre data isn’t going to be either.
? law or ordinance unclear or delegates to tou that are not included in the relevant law or ordinance
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why these offices felt the need for these counterproductive rules is unclear, maybe it is a holdover from the old days when the main product was maps, which are naturally covered by classical creative work copyright. In any case it leads to absurd consequences for example the EMBAG https://www.fedlex.admin.ch/eli/cc/2023/682/de#art_10 having to make a specific exception to cater for this silliness and making the data unavailable for the largest open geo data project in the world. ↩
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the swisstopo data is accessed based on a specific exception in their ToU that we had to fight for and which does not exist for the canton Lucerne, see https://sosm.ch/use-of-swisstopo-data-and-products-with-and-in-openstreetmap/. ↩
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