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Licensing Geographic Data and Services 1 Introduction 1.1 BACKGROUND The shift from sale of physical books, maps, and other intellectual works to the licensing of digital data, information, and affiliated services represents a significant change in the communication of knowledge. This shift is altering the balance between public and private interests in geographic works and data. This study focuses on licensing of geographic data and services to and from government. The number of uses of geographic data has expanded rapidly with the evolution of geographic information systems that manage geographic data,1 improvements in remote-sensing technologies, the advent of inexpensive Global Positioning System (GPS) receivers, decreasing costs of personal computing and digital storage, the increasing reach of the Internet, and the increasing pervasiveness of wireless, location-aware telecommunications services. These developments have been accompanied by increased use of licensing as an alternative to the outright sale of the data and data products. Licensing has become commonplace because of the realization that many geographic data, as opposed to geographic creative works, are difficult to protect through copyright alone; 1 See Appendix C for a description of the scope of geographic data.
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Licensing Geographic Data and Services a shift away from supplying distinct datasets to providing access to databases; the rise of business models that stress multiple subscribers despite the reality of digital networks and media that allow others to distribute perfect and inexpensive copies; increased concern over potential liability and a desire to limit liability through explicit license language; and the rise of shared cost and data maintenance partnerships. Expanded mapping activities have increased the potential for duplication. Initiatives such as the U.S. Geological Survey’s National Map, the Office of Management and Budget’s Geospatial One-Stop, and the U.S. Census Bureau’s MAF/TIGER program modernization2 seek to leverage local government investments in geographic data and avoid unnecessary duplication. Because states, tribes, regional groups, counties, and cities have a wide range of data-sharing policies that includes sharing under license, the federal government is increasingly forced to address licensing issues. Confusion and uncertainty have arisen as a result of a proliferation of nonstandard licensing arrangements; difficulty in designing licenses that track the legal, economic, and public interest concerns of different levels of government; difficulty in designing licenses that accommodate all sectors of the geographic data community; an imperfect appreciation for the licensing perspectives of different sectors of the geographic data community; and lack of effective license tracking and enforcement mechanisms. Even within a single sector, there can be multiple perspectives on licensing. Commercial firms that wish to supply data to the government typically want high prices and significant restrictions on reuse. On the other hand, commercial firms that wish to acquire data from the government usually want low prices and few if any restrictions on reuse. These competing interests within the commercial sector add to the confusion and uncertainty surrounding licensing. Licensing is one among several social tools for pursuing economic and policy objectives. Commercial data providers typically use licenses 2 For The National Map, see < http://nationalmap.usgs.gov/>; for Geospatial One-Stop, see < http://www.geo-one-stop.gov/>; for MAF/TIGER (Master Address File/Topologically Integrated Geographic Encoding and Referencing system) modernization, see <http://www.census.gov/geo/mod/overview.pdf>.
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Licensing Geographic Data and Services to protect and receive a return on investments. Some government data providers similarly view licensing from government as an opportunity to earn revenue. More commonly, however, they use licensing to effect such policy objectives as ensuring data integrity by developing relations with known parties to whom notices of corrections and limitations may be delivered, ensuring that the most current government data are used by individuals and businesses, enforcing credit and attribution, and organizing collaboration. From the perspective of government agencies, ownership and licensing each have benefits and drawbacks. Ownership (i.e., unrestricted transfers or purchases of data) lets government offer citizens and the commercial sector broad open access to data and any public records derived from them. This enhances the ability of citizens to check on the functioning of government, lets individuals and businesses develop markets based on the use of government information, and promotes research and society’s general education. In contrast, acquisition under license may restrict government’s ability to disseminate the data it uses and derivative products it produces. In addition, the new burdens imposed by the need to administer licenses can add to government’s overhead costs. Licenses, similarly, can add to transaction costs that commercial and nonprofit users incur to acquire government data. Conversely, licensing can help agencies accomplish their missions more efficiently and cost-effectively. In many cases, it may be cheaper to acquire data under license than through outright purchase. Agencies may also be able to discontinue some data collection and processing tasks if accurate, reliable, and cost-effective data can be licensed from the private sector. Finally, assuming that the public’s interest in the free flow of information is accommodated, licensing may allow government agencies to shift costs from taxpayers to users by charging fees for agency data and services, although some efficiencies may be lost if costs are shifted to users. Designing a licensing policy that balances the needs of government agencies, the commercial sector, and private citizens and citizen groups requires detailed consideration of multiple legal, policy, regulatory, and technology issues. The committee provides this guidance using the categories laid out in its Statement of Task. 1.2 STATEMENT OF TASK Given the climate of confusion involving licensing of geographic data and services, the committee was charged with six tasks:
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Licensing Geographic Data and Services Explore the experiences of federal, state, and local government agencies in licensing geographic data and services from and to the private sector, using case studies such as the Landsat Program. Examine ways in which licensing of geographic data and services between government and the private sector serve agency missions and the interests of other stakeholders in government datasets. Identify arguments in favor of and in opposition to spatial-data licensing arrangements. Dissect newly proposed license-based models that could meet, concurrently, the spatial-data needs of government, the commercial sector, scientists, educators, and citizens. Consider potential effects on spatial-data uses and spatial-technology developments of competing license/nonlicense approaches within the commercial sector. Analyze options that will balance the interests of all parties affected by licensing of spatial data and services to and from government. The report provides a self-contained roadmap to the foregoing issues by (1) capturing the range of arguments and experiences found in different sectors of the geographic data community, (2) providing an overview of related disciplines including copyright law and information economics, and (3) pointing the reader to more specialized resources when necessary. Although the report focuses on the needs of the civilian federal agencies that sponsored the study, other government, commercial, and nonprofit sectors are also considered. For this reason, the information and conclusions presented in this report apply to a broad range of agency missions, goals, policies, and legal constraints. The report is likely to be of interest to federal, state, and local agencies; commercial firms; academic professsionals; and citizens alike. 1.3 REPORT STRUCTURE The modular structure of this report lets readers with varied backgrounds and interests select the particular discussions that interest them. Chapters 2 and 3 are background chapters: Chapter 2 explores societal goals that motivate government missions and data policies; Chapter 3 describes types of geographic data, interrelationships among market players, the value chain of geographic data, and exchange mechanisms within the geographic data marketplace.
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Licensing Geographic Data and Services Chapter 4 addresses items 1, 2, and 3 in the committee’s Statement of Task: licensing experiences of stakeholder groups, ways in which licensing serves agency missions and interests of other stakeholders, and advantages and disadvantages of licensing as seen from different perspectives. Chapters 5 through 7 present the legal, economic, and public interest arguments that relate to licensing geographic data and services. Chapter 8 presents guidelines for deciding when licensing to and from government may be appropriate and, if so, under what terms. The chapter also addresses Task 4 by presenting license-based models that could satisfy the range of stakeholders. Chapter 9, describes strategies that could make current licensing institutions more efficient and also more responsive to the interests of all affected parties (Task 6). The chapter also addresses aspects of Tasks 4 and 5 (downstream impacts of licensing). The committee’s recommendations, initially presented in Chapters 8 and 9, are collected together in Chapter 10. A series of vignettes, or “dream scenarios” is dispersed among each of the chapters. Realization of these dreams hinges on whether policy and/or technological solutions can be developed to address a license or nonlicense option. With each vignette, the vision builds in complexity to illustrate a possible future that accommodates the broadest range of stakeholders in geographic data and services. Chapter 9 lays out specific strategies and institutions that can or could help the geographic data community reach this goal. Lastly, the appendixes provide a range of resources. Appendix C contains background information on the scope of geographic information. Appendix D summarizes current licensing models. Appendix E contains a glossary of terms,3 and Appendix F lists acronyms used in the report. 1.4 KEY TERMS This report repeatedly uses such terms as “data,” “information,” “works,” “services,” “purchase,” “license,” “ownership,” “public domain,” “open access content,” and “information commons.” In the interests of clarity, we define them now, at the outset. Other authors sometimes use different definitions and the reader should keep these definitions clearly in mind to avoid misunderstandings. 3 Some key terms are also described in Section 1.4 of this chapter.
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Licensing Geographic Data and Services Data and information are elements of an ascending hierarchy:4 Data are facts and other raw material that may be processed into useful information. Information is data processed and rendered useful. Knowledge is information transformed into meaning through action of the human mind, such that it can be recorded and transmitted. Understanding is knowledge integrated with a world view and a personal perspective, existing entirely within the human mind. Wisdom is understanding made whole and generative within the human mind. Works of knowledge such as books, journals, and maps provide context and convey meaning and are often protected by intellectual property law. Because they exist only in the human mind, understanding and wisdom are not recordable on other media. Geographic data are any location-based data or facts that result from observation or measurement, or are acquired by standard mechanical, electronic, optical, or other sensors. Geographic works are works incorporating geographic data that have been collected, aggregated, manipulated, or transformed in some manner. Examples include datasets and databases, and other products derived from geographic data, including but not limited to maps, models, and other visualizations involving geographic data. Geographic information means either geographic data or works without distinction, and may encompass, but is not limited to, (1) location-based measurements and observations obtained through human cognition or through such technologies as satellite remote sensing, aerial photography, GPS, and mobile technologies; and (2) location-based information transformed as images, photographs, maps, models, and other visualizetions. Geographic data and works are not strictly location based but may also include, for example, spatial relationships, descriptions or attributes of geographic features, metadata, and additional types of information that are arranged, categorized, or accessed in reference to their geographic or 4 W. Crawford and M. Gorham, 1995, Future Libraries: Dreams, Madness and Reality, American Library Association, Chicago, p. 5.
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Licensing Geographic Data and Services spatial location. Such information typically is presented in digital form and may be contained in databases. Geographic services refer to the processes of obtaining, processing, or providing geographic data or geographic works. As used in this volume, the term refers to the provision of access to and use of preexisting data or databases, such as subscription to a particular online geo-based processing capability or subscription to a database allowing downloads when desired. In some contexts, the term “services” may connote geographic data or works provided for a single client, according to that client’s specifications. Purchase of geographic data refers to a transaction or arrangement (usually a contract, in which there is an exchange of value) in which the purchaser of the geographic data (which may be contained in a geographic work) obtains unlimited rights to use, copy, and disseminate the geographic data. From the standpoint of the provider of the information, such a transaction is a sale of geographic data. The provider may retain a copy of the information as well as the right to enter into other sales or licenses of the information. Such a transaction is equivalent to a license for unrestricted use of information (see definition of license below). The purchase or sale of geographic data should be distinguished from the purchase or sale of a copy of a geographic work, such as a map or a copyrighted database, which does not relinquish the seller’s intellectual property rights unless those rights are expressly or impliedly conveyed. License or licensing of geographic data or a geographic work means a transaction or arrangement (usually a contract, in which there is an exchange of value) in which the acquiring party (i.e., the licensee) obtains information with restrictions on the licensee’s rights to use or transfer the information. Examples of such restrictions include limits on the persons or entities (such as other agencies or the public) to whom the information may be disclosed, limits on the purposes for which the information may be used, limits on the duration of the license, and provisions regarding ownership and use of products developed through the use of the licensed information. Ownership of geographic data is an inherently ambiguous, though widely used, term. One theory of ownership is that what rights the law gives an owner of information should be determined solely by how much of an incentive is needed to ensure the optimal production and distribution of the type of information in question. If the law gives more protection to
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Licensing Geographic Data and Services information than is needed to induce someone to create it and to make it available, this results in suboptimal availability and a deadweight loss to society. In this report, ownership of geographic data or works as applied to the licensor–licensee relationship means: With reference to a vendor or licensor, the owner is in possession of information that is not publicly known and holds the information as a trade secret. In the case of information to which copyright applies, the licensor is the owner of the copyright. With reference to a licensee, the licensee has possession of a copy of the information and has exclusive or nonexclusive rights to use and make the information available to others without restriction. The meaning of the term public domain requires more explanation than a simple definition. The term has been described as “a question-begging concept,” the meaning of which must be understood in context.5 To provide that context, several issues must be considered. First, public domain information is usually defined as information that is not protected by copyright or patent law,6 and we include this concept in our definition. Moreover, for information to be part of the public domain, it must be available to the public; hence trade secrets are not part of the public domain, even when not protected by copyright or patent.7 This definition is inadequate for our purposes, however, because the use of digital media permits data providers to impose license or contract terms with limitations on the use or redistribution of data that have not been possible for information published in paper media.8 In such instances, these contract or license rights have the same effects as traditional intellectual property rights, such as patent or copyright. It therefore seems 5 Mine Safety Appliances Co. v. Electric Storage Battery Co., 405 F.2d 901, 902 (C.C.P.A. 1969). See also J. Boyle, 2003, Foreword: The opposite of property? 66 Law & Contemporary Problems 1 (describing various authors’ use of the term in the Duke Conference on the Public Domain). 6 Patent law in any event does not protect information as such, but rather applications of information. Thus, information in patents is usually treated as part of the public domain. See 1-1 Milgrim on Trade Secrets § 1.06 (2003). 7 See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). 8 See discussion of ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), regarding validity of such licenses.
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Licensing Geographic Data and Services appropriate to add a requirement of unrestricted public use to the definition of public domain. Last, we considered whether the definition should address the issue of cost of access, since costly access could greatly curtail if not prohibit the use of nominally public domain data. In a robust competitive market, a data provider will be unable to price data above the cost of reproduction. Anyone who pays the price of access could establish a competing, lower price service due to lack of need to gather or produce the data in the first place.9 Assuming the existence of well-functioning competitive markets, such data will be available at reasonable cost. Considering all of the foregoing, it seems appropriate to define public domain information for the purposes of this report as information that is not protected by patent, copyright, or any other legal right, and is accessible to the public without contractual restrictions on redistribution or use. Open access content, for purposes of this report, is content openly available for others to access, use, and copy, and often to make derivative works, although some limited restrictions may apply. Typical restrictions may include preventing users from removing creator attribution from content, imposing identical license terms on any derived works, barring commercial use without permission, and liability limitations. We note that this definition does not necessarily conform to the use of the phrase “open access” in other contexts, including scientific publishing. Geographic information commons means a system for making geographic data and works openly and freely accessible to the public over the Internet. A geographic information commons may include both public domain (i.e., free from any use restrictions) and open access content. Geographic information marketplace means a system for making geographic data and works available for sale over the Internet (see Chapter 9, Section 9.3). 9 In fact, the price charged for access to the data should tend toward the marginal cost of distribution under accepted economic theory (Chapter 6, Section 6.2), though in practice this condition may not be reached.
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Licensing Geographic Data and Services VIGNETTE A. A TEACHER’S DREAM10 Mr. Henson is a high school science teacher, but his students call him a “tree freak.” Each spring, he sends his students out with global positioning system receivers to locate and identify trees in the surrounding community. In the field, each student collects leaf samples from at least 50 tree species, records the location of each identified tree, and describes the bark, canopy shape, and evidence of pests and diseases. To serve as a base map for their project, the class downloaded a digital map from the Internet showing all streets and land parcels in the town. Ten years later, Henson has a database and leaf samples for several thousand trees. Hundreds of the trees have been observed multiple times over the years. One day the local paper writes a story about Henson’s class. Within hours, a local government official asks for a copy of the database. He wants to see whether a smelter built four years earlier may be affecting vegetation in the community. Two graduate students from a local university also ask to see Henson’s data. They want to study how sudden oak death syndrome propagates in an urban environment. Henson is delighted by the attention and posts his database on the school’s Web site. That afternoon he tells students that their work is being used in the real world. He even asks them to imagine how biologists, planners, and historians could still be using their data a century from now. There’s a problem, however. The next morning the school board’s lawyer points out that Henson’s class has used a base map of unknown source. She doesn’t know whether the school can copy or redistribute it. The lawyer tries to contact a company that may have been the owner of the digital map but it has moved in the interim. A dejected Henson takes down the Web site and tells people he can’t share his data until the legal issues are resolved or he can find an appropriate substitute digital base map. Mr. Henson ponders. Might not a system be developed through which the source of all local maps and geographic data on the Web could be readily determined? Alternatively, how might one readily determine if digital maps are in the public domain? 10 This and all other vignettes are included for illustrative purposes. They are designed to clarify concepts in the report.
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Representative terms from entire chapter: