The use of licensing does not avoid the need to consider copyright, however. Rather, in drafting licenses or sales contracts for information, it is important to understand that copyright law supplies the default rules for the allocation of rights in the absence of express contractual provisions. Thus, the parties to an agreement transferring rights to geographic data or works often wish to make reference to copyright principles or to contract around the otherwise applicable rules. Further, copyright principles and policies, such as preserving the public domain, may limit the restrictive terms that can be imposed in a license of geographic data.2

Conclusion: Because transactions in geographic data and works will touch upon both copyright and contract principles, an understanding of how copyright applies to geographic data and works is important in licensing.

5.2.1.2 Copyrightability of Geographic Data and Geographic Works

The extent of protection available under copyright is governed by several basic principles. First, as the U.S. Supreme Court made clear in Feist Publications, Inc. v. Rural Telephone Service Co.,3 copyright is not available to facts.4 This principle seems to apply to geographic data, that is, information that represents some state or condition of the physical world.5 The judicial decisions are not entirely consistent on this point, however.6

The corollary of Feist is that compilations of facts are subject to copyright, provided that the selection and arrangement exhibit at least a

2  

See discussion of preemption in Section 5.3.1.2.

3  

499 U.S. 340 (1991).

4  

Id. at 345–346.

5  

See Sparaco v. Lawler, Matusky, Skelly Engineers, 303 F.3d 460 (2d Cir. 2002) (“To the extent that the site plan sets forth the existing physical characteristics of the site, including its shape and dimensions, the grade contours, and the location of existing elements, it sets forth facts; copyright does not bar the copying of such facts”); Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458 (5th Cir.) (applying merger doctrine to find map embodying contour lines and lines showing proposed location of gas line uncopyrightable), cert. denied, 498 U.S. 952 (1990).

6  

See Mason v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992) (finding copyrightability in mapmaker’s selection of sources of data to incorporate into map showing land ownership).



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