Digital technologies have also made possible new approaches to commercializing the provision of data and data services.32 Several legal and policy changes of recent years have strengthened the position of copyright holders. These include lengthening of the term of copyright protection and the passage of the Digital Millennium Copyright Act of 1998 (DMCA). The DMCA implemented the World Intellectual Property Organization treaty on copyrights, and criminalized the circumvention of technical measures to prevent copying of digital materials, even in the absence of actual copying. These technical measures include hardware and software-based access controls, increasingly effective forms of encryption, and other forms of digital rights management that limit access to or copying of data.

In addition, in 1996 the European Community enacted a Directive on the Legal Protection of Databases that established a framework for new proprietary rights specific to databases.33 Experts have warned that a combination of expanded copyright protections, advances in technological means of restricting access to digital content, and database protections of the type that Europe has adopted could enable the assertion and enforcement of proprietary claims to factual matter that previously entered the public domain as soon as it was disclosed.34 The United States and many other countries have not followed the European Union in establishing a new intellectual property regime for databases.

An area where advancing technology and the increased use of contracts and licensing have changed the environment for access is remote sensing and geographic data and services.35 Federal agencies have traditionally acquired full ownership rights to geographic data (such as maps and books) from private entities and have allowed that information to enter the public domain so as to be accessible without restrictions to other uses. However, as digital media have become more prevalent, private data providers have moved to business models focused on selling multiple licenses and access subscriptions to databases. A 2004 National Research Council report recommended approaches agencies should take to licensing geographic data and services in order to maximize their utility, including a recommendation that the federal government should foster

32

National Research Council. 2004. Licensing Geographic Data and Services. Washington, DC: The National Academies Press.

33

Commission of the European Communities. 2005. First Evaluation of Directive 96/9/EC on the Legal Protection of Databases. DG Internal Market and Services Working Paper. December 12. Available at http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf.

34

J. H. Reichman and Paul F. Uhlir. 2003. “A contractually reconstructed research commons for scientific data in a highly protectionist intellectual property environment.” Law and Contemporary Problems 66:315–462.

35

See National Research Council. 2002. Toward New Partnerships in Remote Sensing: Government, the Private Sector, and Earth Science Research. Washington, DC: The National Academies Press.



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