complete coverage, but we discuss the major laws and regulations that constrain agency practices relating to geographic data. Here again, the public’s interest in access to information is in tension with the commercial sector’s need to maintain its products as proprietary, and often with the government’s own tendencies to limit access to information for cost and other reasons.

The final section turns to the situation of state and local governments as data providers and consumers. That section points out the differences not only between private and governmental data providers, but also some of the differences between the rights and obligations of state and local governments on the one hand and federal agencies on the other.

5.2 PRINCIPLES OF INTELLECTUAL PROPERTY LAW APPLICABLE TO GEOGRAPHIC DATA AND WORKS

5.2.1 Copyright
5.2.1.1 Relevance of Copyright

Although the subject of this report is licensing, this chapter devotes substantial discussion to copyright. Historically, copyright has been the most important form of protection available for works incorporating, or based on, geographic data, although the protection it affords is limited, as explained below. Consistent with this view, the purveyors of geographic data and works frequently assert copyright protection and ownership,1 and rely on copyright to protect their interests. Licensing traditionally has been used as a means to effect the benefits of copyright protection. More recently, the limited ability of copyright to protect geographic works and data, especially in digital form, has provided a large part of the impetus to distribute data under license rather than selling them.

1  

The ownership of copyrighted works or data is a complicated subject, a detailed discussion of which is beyond the scope of this chapter. In the absence of an express (usually written) contract, ownership rights in data not previously published are governed by rules generally applicable to trade secrets, whereas ownership rights in copyrighted subject matter are governed by the “work-for-hire” doctrine (1 R. M. Milgrim, Milgrim on Trade Secrets § 4.02[1][a] [2003]). As between the data provider and a government agency, ownership rights in data and in any copyrights should be dealt with expressly in the contract transferring rights in the data. The purchaser or licensee of data also may wish to obtain the seller’s or licensor’s warranty that it (rather than its employees or subcontractors) is the owner of all rights in the data that are the subject of the contract.



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