Licensing Geographic Data and Services (2004) / Chapter Skim
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5 Legal Analysis
5 Legal Analysis
Pages 103-140
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From page 103... ...
The first section discusses intellectual property law as it applies to geographic data and works, and is concerned primarily with the rights of data providers and limits on those rights embodied in intellectual property doctrines. Mainly, those limits are concerned with balancing incentives for the production of intellectual works against the interest of the public in the free flow of information.
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From page 104... ...
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.
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From page 105... ...
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.
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From page 106... ...
Other works that incorporate factual material, such as maps and photographic images, may contain creative expression along with factual information.10 Maps and photographic images, for example, often have _____________ 7Thus, whereas Feist held that the alphabetical white-page listings of a telephone directory were not subject to copyright protection, other cases have distinguished compilations embodying more expressive choices, such as the yellow pages of the phone book, as copyrightable. 8See Montgomery County Ass'n of Realtors, Inc., v.
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From page 107... ...
Conclusion: Although geographic data equivalent to facts will not be protected by copyright, compilations of geographic data such as databases and datasets, as well as maps and other geographic works that incorporate creative expression, may have copyright protection. Even if copyright applies, however, copyright will not protect individual facts.
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From page 108... ...
Copyright protection also extends to software used to search or otherwise manipulate data and other information, and protection extends to both source and object code.15 Copyright in computer programs is limited, however, because courts have held that copyright does not protect the utilitarian or functional aspects of a program.16 Thus, functional aspects of a program that can only be implemented in a limited number of ways, including aspects that are necessary to the functioning of the program or that provide efficiencies in its operation, are not protected by copyright. Additionally, courts generally do not extend copyright protection to code sequences that represent standard practices in the industry or that are necessary for external reasons, such as interoperability with software.17 Conclusion: Copyright in software is likely to be "thin," precluding exact or literal copying, but less clearly covering uses that alter or transform code, or that incorporate sequences of code shorter than the entire program.
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From page 109... ...
For example, use of a copyrighted database for research or teaching purposes, or to verify scientific claims, might qualify as fair use. Some courts have held that reverse engineering of computer software to determine how it works is fair use,20 although this rule is not universally followed and may be subject to waiver by contract.21 Like the issue of copyrightability, fair use analysis is fraught with uncertainty.
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From page 110... ...
The scope of their application is sufficiently uncertain, however, that, where possible, parties should contract for anticipated uses rather than rely on fair use doctrine or other uncertain legal doctrines to sanction the licensee's activities. 5.2.3 Patent Protection and Limits Software and the interactive processes used to access geographic data in digital form (e.g., over the Internet)
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From page 111... ...
Similarly, watermarking and other technologies protect against copying or deter copying by permitting identification of copied materials. Technological means also can be used to monitor the users' activities, such as accessing, opening, and reading files.28 The use of technological controls to protect digital content that contains at least some copyrighted material is reinforced by new legal rights created by the Digital Millennium Copyright Act of 1998 (DMCA)
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From page 112... ...
When licensing geographic data or works in digital form, agencies should include adequate provision for the anticipated downstream uses that otherwise may be precluded or called into question by the DMCA. Conclusion: Some licenses of geographic data may require agencies to limit access to, and further use of, digital geographic data by third parties.
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From page 113... ...
. 5.2.6 Database Protection Legislation Since 1996, Congress has considered several proposals to create a new form of protection for databases.
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If database legislation passes, licenses of geographic data and works would need to address statutory database rights in a manner similar to contractual allocation of rights under copyright law. 5.3 CONTRACT LAW AND LICENSING 5.3.1 General Principles Contract law40 and licensing have begun to play an important, even paramount, role in protecting databases, including geographic databases.
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From page 115... ...
Readers, however, have been free to extract and use the factual information and ideas contained in a published work. Contractual restrictions on the use of factual information41 in the print environment have been feasible only where the information provider maintained the information as trade secret or confidential and negotiated an agreement with each recipient of the information, typically requiring customers to maintain the confidentiality of the information and limit its use to specified purposes.
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From page 116... ...
Licenses that restrict the further use and distribution of published data are also questionable on the ground that they are preempted by copyright law. See discussion in Section 5.3.1.2.
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. The American Law Institute and the National Conference of Commissioners on Uniform State Laws (NCCUSL)
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To date, courts generally have rejected arguments that copyright preempts contract rights,51 thus permitting contracts to confer protection on factual material _____________ 49Space limitations preclude a detailed analysis of contract terms allocating liability between vendor and purchaser or licensee.
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From page 119... ...
Conclusion: Courts sometimes invoke competition policy, the First Amendment, and copyright preemption to invalidate or limit contract terms. These doctrines could be invoked to limit the enforcement of license terms that restrict the free flow of public or widely disseminated information.
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. The Supreme Court ruled that the policy of both ASCAP and BMI of offering only blanket licenses was not a per se violation of the Sherman Act.
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circulars, the FARs, and other generally applicable regulations affecting information policy. As explained below, when agency missions do not require dissemination of, or public access to, data, we tentatively conclude that OMB Circular Nos.
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From page 122... ...
Moreover, recent changes expanding access to federally funded data and the Data Quality Act impose additional mandates for data access that may affect licensed geographic data. 5.4.1 Making Geographic Data Public Does the law require federal agencies to acquire geographic data under conditions that allow the agency to make it available to the public?
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5.4.1.1 OMB Circular No. A-130 and the Paperwork Reduction Act Agencies frequently cite OMB Circular No.
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In what follows, we assume that A-130 applies to data that are acquired through licensing.66 At the same time, Circular A-130 indicates that proprietary rights should be respected. For example, in the section entitled "Basic Considerations and Assumptions," A-130 recognizes that the free flow of information for scientific research is subject to "applicable national security controls and the proprietary rights of others." Additional discussion in Appendix IV recognizes that federal grantees and contractors may copyright information, although the federal government may not.
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From page 125... ...
69Circular A-16 also indicates that it incorporates Executive Order 12906 (Coordinating Geographic Data Acquisition and Access: The National Spatial Data Infrastructure) , which required agencies to "adopt a plan...establishing procedures to make geospatial data available to the public, to the extent permitted by law, current policies, and relevant OMB circulars."
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From page 126... ...
The FAIR Act defines inherently governmental as those activities requiring the exercise of "discretion," an easier standard to meet than "substantial discretion" as set forth in the circular. See Federal union files suit asking court to declare revised OMB Circular A-76 illegal, U.S.
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From page 127... ...
Conclusion: OMB Circular No. A-76 and the Commercial Remote Sensing Policy require outsourcing by the federal government of all functions that are not "inherently governmental." Neither policy, however, specifies the terms on which data should be acquired or when broad use and redistribution rights should be obtained.
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From page 128... ...
Thus, the FARs give the government "unlimited rights" in data "first produced in the performance of" the contract, while recognizing the contractor's right to copyright scientific articles containing or based on data first produced under the contract or with the agency's permission.80 In contrast, limited rights data is defined as data developed through private expense, implying that data developed through government funding should not be provisions pertaining to the acquisition of data. Further analysis of agency-specific acquisition regulations is beyond the scope of this discussion.
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From page 129... ...
_____________ 81 With respect to data not first produced under the contract, the contractor is prohibited from delivering such data pursuant to the contract unless the contractor provides the government with a license to use the data on the same terms as provided for data produced under the contract. The contractor is permitted to retain proprietary rights in computer software, however, and to license software to the government.
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From page 130... ...
. 87See discussion of the scope of "government information" under OMB Circular A-130, in Section 5.4.1.1.
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From page 131... ...
has the burden of proof that the requirements of an exemption are met. Conclusion: Licensed data ordinarily will not be subject to disclosure under FOIA, either because they do not constitute agency records or because they qualify for FOIA's exemption for trade secrets or other confidential commercial information.
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Thus, FOIA may trump the requirement of public access to the record, although if the information were important to the decision, the decision might be reversed or remanded. See also Mortgage Investors Corp.
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From page 133... ...
A-110, to "require Federal awarding agencies to ensure that all data produced under an award will be made available to the public through the procedures established under the Freedom of Information Act." The revisions to Circular A-110 limit access under FOIA to "research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law."100 The significance of this data access amendment is that it subjects data in the hands of federal grantees to FOIA, which previously extended only to information in the possession of the federal government. This includes, for example, the data produced by academic researchers pursuant to federal research grants when the data are cited in support of a federal regulation.101 Like FOIA generally, A-110 protects trade secret information, but a recent request for access to proprietary software suggests that pressure for access to otherwise nonpublic information is likely to increase.102 The DQA103 followed closely on the heels of the Shelby Amendment in the fiscal 2001 appropriations bill.
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From page 134... ...
5.5 STATE AND LOCAL LAW AND POLICY State and local governments generate and collect significant quantities of geographic data utilized by federal programs, and they are also consumers of geographic data supplied by the federal government and other entities. Federal law permits state and local governments to assert copyright in works containing geographic data (if they otherwise meet the requirements for copyright protection)
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From page 135... ...
State open records laws sometimes make the cost recovery policies discussed above somewhat problematic, however, because these laws require disclosure of public records upon request of citizens, much like the federal FOIA.110 Pursuant to these statutes, some state courts have required the disclosure of geographic datasets developed in a municipality or county, effectively putting the information in the public domain.111 Recognizing _____________ 107 See also discussion in Section 5.3 on contract law principles, which are also a matter of state law. 108 Coordinating geographic data acquisition and access: The National Spatial Data Infrastructure, 59 Fed.
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From page 136... ...
The extent to which copyright applies to particular geographic data and works is often uncertain. With limited copyright protection, providers of geographic data or works in digital form have turned to other means to protect these works.
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From page 137... ...
Additionally, government accountability may require that geographic data be available to the public, particularly under changes to the law regarding data access and data quality. Even so, OMB Circulars such as A-130, the FARs, and the FOIA recognize the possibility that some government information will be subject to proprietary restrictions and cannot be disseminated or made available to the public.
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From page 139... ...
Although public officials in Susan's town use these flythrough capabilities on their personal communicators to manage facilities and to provide evacuation paths through buildings or along street networks during emergencies, Susan and her friends use such flythroughs to play virtual games and explore real-world settings where they have never physically been. When updates containing more detailed or more comprehensive geographic data become available, Susan simply downloads the upgrade for a fee from the vendor or for free from the information commons.
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From page 140... ...
140 LICENSING GEOGRAPHIC DATA AND SERVICES and licenses to efficiently support an active information commons and a thriving marketplace?
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