Resolving Conflicts Arising from the Privatization of Environmental Data (2001)

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APPENDIX B 95 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 work.1 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 compilation—the 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 B.1). 1Intellectual 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. 

APPENDIX B 96 BOX B.1 FAIR USE EXCEPTIONS IN U.S. COPYRIGHT LAW Fair use is a bedrock principle that reconciles the Copyright Act's grant of exclusive rights to authors and the First Amendment's constitutional guarantee of free speech. Under copyright certain public purposes including “criticism, comment, news reporting, teaching, scholarship, or research” are permitted. U.S. courts consider four factors when determining whether the fair use exception is allowable: 1. the purpose and character of the use, including whether such use is commercial or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use on the potential market for or value of the copyrighted work (most heavily weighted factor). Decades of court interpretations define what is meant by fair use today. A fair use exception is most likely to be granted under the following conditions: • the use is for noncommercial purposes; • the original work was inexpensive to produce and/or distribute; • a relatively small amount of the original work is used; • the portion used is transformed, not merely copied; and • the economic impact is insignificant. SOURCE: K.D.Crews, 1995, Fair use: Overview and meaning for higher education, in The Trustees of California State University, A Copyright Handbook, p. 37–41; A.P.Lutzker, 1996, Fair use in transition: Reconciling fair use to the world of electronic communications. Intellectual Property Law Institute, State Bar of Texas, Austin, January 1996, p. G1-G4. 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