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Appendix B Intellectual Property Rights to Data Intellectual property law seeks to give authors enough control over their work to motivate them to create and disseminate, while limiting their control so that society as a whole benefits from access to that works The types of intellectual property most relevant to public-purpose information systems discussed in this report are copyright, database protection and contract. Copyright and Fair Use Copyright law protects the creative elements of a compilationthe selection, coordination, and arrangement of the information although not the facts themselves. For example, the yellow pages are protected by copyright because such features as the organization of information, use of boxes, and color required thought and creativity. On the other hand, the white pages are a simple alphabetical listing, which is not protected by copyright. Most datasets used by scientists either fall under copyright law or are in the public domain and are available to all without conditions. (By law the U.S. federal government cannot copyright databases.) Scientists can generally use copyrighted material because of a fair use exception in the United States or similar exemptions in Europe (see Box Bib. iIntellectual property laws relevant to the environmental science enterprise are discussed extensively in NRC, 2000, The Digital Dilemma. Intellectual Property in the Information Age. National Academy Press, Washington, D.C., 340 pp.; and NRC, 1997, Bits of Power: Issues in Global Access to Scientific Data. National Academy Press, Washington, D.C., 235 pp. 95

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96 The Privatization of Environmental Data A primary protection against violations of copyright has been the cost and nuisance of physically copying protected material. However, with the increasing use of digital information, the growth of computer networks, and the creation of the World Wide Web individuals can now copy and distribute publications and large amounts of data at little cost or effort. As a result, existing intellectual property laws are being altered

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Appendix B 97 and new laws are being considered to legislate new rights and limitations on those rights in the digital environment.2 Among the most significant new legislation enacted or being considered is database protection. Database Protection Databases produced by "sweat of the brow" (i.e., created with money, effort, or labor but without creativity) are not protected by copyright. In Europe databases are protected by a new form of intellectual property protection through the European Union (KU) Database Directive (see Box 2.l and 2.2~. The EU Database Directive provides ~ 5 years of protection for the contents of the database (including facts) and each significant update. Use of substantial parts of a database and value-added uses of any kind are prohibited without permission and/or payment to the database owner. European counkies are permitted to designate exceptions for science and education, but these exceptions are much more limited than the fair use exceptions in copy- right law and they are not required. For example, France does not permit any fair use exceptions in its database law. Other counkies, including the United States, are currently considering similar database protections. Contract Most data agreements between users and data collectors (e.g., with the European Space Agency for use of ERS data3) are contracts. A conkact is a t~vo-party agreement, the terms of which are specified by the individuals involved. Because conkacts can be written to circumvent fair 2For example, the Digital Millennium Copyright Act provides new rights and limitations related to the use of copyrighted works on the Internet or other digital environments. The act prohibits circumvention of technological measures to control access, even if it is done for legitimate reasons, and thus potentially reduces public access to information. See NRC, 2000, The Digital Dilemma. Intellectual Property in the Information Age. National Academy Press, Washington, D.C., 340 pp. 30nce a researcher's proposal to use ERS data is approved, the researcher signs a formal agreement naming every individual who would be permitted access to the data (see Example 5.54.

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98 The Privatization of Environmental Data use, they are potentially a very powerful form of intellectual property protection. For example, conkacts can be written to prevent multiple uses of the same data, sharing data with colleagues, or publishing the data on which the analysis was based. They can also be written to slow or prevent data from public-private partnerships from entering the public domain (e.g., Example 5.14~. On the other hand, contract law has some limitations, including (~) a high administrative burden of negotiating terms with each user and provider of data, particularly for datasets compiled from several sources, and (2) they cannot fully prevent unauthorized downstream uses of the data because they are only binding on the parties to the agreement.