4
Experiences of Government in Licensing Geographic Data from and to the Private Sector

4.1 INTRODUCTION

In this chapter, we address three of the committee’s tasks: (1) exploring the experiences of federal, state, and local governments in licensing geographic data and services to and from the private sector; (2) examining the ways in which licensing of geographic data and services between government and the private sector serves agency missions and the interests of stakeholders in government data; and (3) identifying arguments in favor of and in opposition to various types of licensing arrangements.

Because the report focuses on the role of government, the chapter begins by describing federal, state, and local government experiences in licensing geographic data and services from the private sector. It then outlines government experiences in licensing data to private businesses and members of the public. The final two sections present stakeholder perspectives from private business and the academic community. Much of the material is drawn from oral and written testimony to the committee.1 The opinions, conclusions, and arguments documented in this chapter should not be held to be those of the committee.

1  

See Appendix B for a list of contributors.



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Licensing Geographic Data and Services 4 Experiences of Government in Licensing Geographic Data from and to the Private Sector 4.1 INTRODUCTION In this chapter, we address three of the committee’s tasks: (1) exploring the experiences of federal, state, and local governments in licensing geographic data and services to and from the private sector; (2) examining the ways in which licensing of geographic data and services between government and the private sector serves agency missions and the interests of stakeholders in government data; and (3) identifying arguments in favor of and in opposition to various types of licensing arrangements. Because the report focuses on the role of government, the chapter begins by describing federal, state, and local government experiences in licensing geographic data and services from the private sector. It then outlines government experiences in licensing data to private businesses and members of the public. The final two sections present stakeholder perspectives from private business and the academic community. Much of the material is drawn from oral and written testimony to the committee.1 The opinions, conclusions, and arguments documented in this chapter should not be held to be those of the committee. 1   See Appendix B for a list of contributors.

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Licensing Geographic Data and Services 4.2 GOVERNMENT AGENCY EXPERIENCES IN LICENSING GEOGRAPHIC DATA AND SERVICES FROM THE PRIVATE SECTOR Different government agencies have different geographic data acquisition needs. These needs should be driven by the agency’s mandates, missions, goals, and operations. Mandates imposed on all agencies by state Open Records laws and the federal Freedom of Information Act and their affiliated regulations require the distribution of most government records.2 Many agencies find it within their mission to provide data to users upon request. Inevitably, license models fit some agency needs better than others. We begin by reviewing common agency missions that help determine which types of licenses are likely to be the most useful: Broad Redistribution of Data. Agencies often collect data on behalf of society as a whole, or for the benefit of all within their jurisdictions.3 This mission usually requires making data publicly available at marginal cost of distribution. To the extent that they exist at all, restrictions imposed when licensing geographic data from the commercial sector must be consistent with this mission. Limited Redistribution of Data. Many missions require agencies to distribute data to large groups of users. Typical numbers range from hundreds to tens of thousands of interested parties.4 2   See Chapter 5, Section 5.4.2. 3   For example, see the House Appropriations Committee Report 108-195 (available at <http://www.gpoaccess.gov/serialset/creports/index.html>), which states “USGS archived data are critical to Federal, State, and local governments for protecting the homeland, natural disaster assessments, and understanding global climate change.” 4   The U.S. Census Bureau must provide redistricting data to states, local governments, school districts, courts, and individuals who wish to participate in the redistricting process (testimony of Robert LaMacchia); the National Oceanic and Atmospheric Administration (NOAA) delivers data to state and local resource managers, state agencies, scientists, and emergency response personnel (testimony of Anne Hale Miglarese); the U.S. Department of Agriculture (USDA) has “hundreds” of clients (testimony of Glenn Bethel); the Federal Emergency Management Agency (FEMA) shares data with state, local, and federal agencies, and data must also be available for homeowner appeals process (testimony of Scott McAfee); Hennepin County, Minnesota, distributes data under a range of licensing arrangements to public agencies and educational institutions, and commercial companies (testimony of Randy Johnson).

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Licensing Geographic Data and Services Internal Use. In some cases, agencies need to redistribute data to their own personnel. In cases when agencies perform their mission in cooperation with other entities, the concept of “internal use” can be stretched to include contractors, foreign governments, nongovernmental organizations (NGOs), or state, local, or tribal governments. Agencies may use licenses to limit further use or redistribution by these parties.5 Distribution of Derivative Products. Some agencies use data to create derivative products. In many cases, there is no need to distribute the underlying data.6 Permitting Judicial Review. All agencies must disclose data to the extent required in judicial proceedings.7 Redistribution beyond the litigants is usually unnecessary and can be controlled by appropriate court orders. 4.2.1 Common Types of Licenses Used by Government Agencies have experimented with a wide variety of licenses.8 We describe prominent examples in order of increasing complexity.9 Shrink-wrap and Click-wrap Licenses. Like their counterparts in the private sector, government employees often make use of 5   The National Geospatial-Intelligence Agency (NGA) acquires some data for use and distribution only within the military and security government sectors (testimony of Karl Tammaro); the U.S. Geological Survey (USGS) occasionally procures licensed data to support “science projects and research” (written testimony of USGS, p. 3). 6   Unlike USGS, the U.S. Census Bureau often can accomplish its mission by distributing derivative products in lieu of the underlying data with no objection to such distribution by data suppliers (testimony of Barbara Ryan). 7   See, for example, USGS Policy 01-NMD001 (April 2001): “Even when licensed source will not be openly available, license agreements should contain terms that anticipate complications that could arise when USGS information or products are used in formulating public policy, and external parties wish to challenge USGS information products or scientific analysis through the examination of the source data.” 8   See Appendix D for a compilation of license approaches. 9   A related discussion in Chapter 3, Section 3.7, describes broad market strategies that companies have adopted for selling licensed data.

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Licensing Geographic Data and Services mass-market products or online subscription services. Commercial products, such as geographic data packaged with software tools, are particularly useful when the agency mission does not require sharing or redistributing the specific data, and there is little need to acquire more specialized or detailed geographic data than that found in consumer products. Embargoes and Quality Ladders. Government agency missions do not always require the latest or most detailed data. Agencies sometimes acquire the right to redistribute data that have been embargoed for a period of weeks or years, that have been processed to impose downgraded accuracy, or both.10 Minimally Restrictive Licenses. When use and redistribution restrictions are minimal, the distinction between licensing and outright purchase becomes academic. Government agencies that acquire unlimited rights to use and redistribute geographic data seldom demand exclusive rights. In such instances, the vendor retains the right to sell the data to others. Tiered Users. Some vendors offer “tiered” licenses in which a range of use and redistribution rights is offered. Tiered licenses let government agencies choose the option that fits their particular needs without having to negotiate a custom agreement.11 10   The U.S. Department of Transportation licenses Geographic Data Technologies, Inc.’s (GDT’s) Dynamap/2000 internally but posts Dynamap1000 (ca. 1998) for unrestricted distribution over the Internet (testimony of Don Cooke); the Census Bureau plans to license downgraded coordinates for use in its Topologically Integrated Geographic Encoding and Referencing system (TIGER) database and it will delay release of TIGER files containing licensed commercial data (written testimony from the U.S. Census Bureau); current Sea-viewing Wide Field-of-view Sensor (SeaWiFS) satellite data, the fruits of a partnership between Orbital Image Corp. (ORBIMAGE) and the National Aeronautics and Space Administration (NASA), are sold to a primary market of fishermen, whereas commercially obsolete two-week-old data are made available from NASA for use by researchers at no charge (see <http://seawifs.gsfc.nasa.gov/SEAWIFS/ANNOUNCEMENTS/getting_data.html>) (testimony of Anne Hale Miglarese). 11   Levels of tiering within NGA’s “traditional” license model include (in order of increasing size) single organization, Department of Defense/Intelligence Community, state/local governments, and coalition forces. The tiers (12 in total) broaden to the final tier of “Unrestricted,” and then there is “Public Domain” (testimony of Karl Tammaro).

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Licensing Geographic Data and Services 4.2.2 Nonlicense Alternatives Agencies regularly turn to nonlicense alternatives when (1) the geographic data needed to perform their mission are unavailable; (2) alternatives are likely to cost less than procurement under license; or (3) license restrictions conflict with their missions. Most of these alternatives ultimately rely on work done by commercial firms. At the federal level, methods for acquiring geographic data or services that can accommodate but do not require licensing include use of the General Services Administration schedule, standard competitive procurement, Brooks Act procurement procedures, sole-source procurement, and memorandums of understanding with agencies that contract with the private sector. Federal agencies also join companies in cooperative research and development agreements (CRADAs) and other partnerships for research and development, which can result in new data or technologies. Such data and technologies promote commercialization and deliver resources that neither the agency nor the private firm would likely develop on its own.12 These alternatives may come with restrictions that let commercial partners resell the data already provided to the government agency to other users.13 Finally, agencies continue to experiment with a variety of innovative procurement methods. For example, USGS uses grants to obtain new data from academic researchers. Other agencies offer prizes for the development of new technologies—an approach that could, in principle, extend to database development.14 4.2.3 Learning by Doing Agency license negotiation skills tend to improve over time.15 Perhaps the simplest skill is to know how to bargain, since commercial vendors 12   USGS currently has CRADAs with Microsoft (TerraServer) and National Geographic (on-demand map printing) (testimony of Barbara Ryan). 13   NOAA negotiated a CRADA with BSB Electronic Charts to develop digital marine hydrographic maps. In retrospect, the agency has been disappointed by this arrangement, which requires NOAA and all other government and private partners to purchase Raster Nautical Charts under license from Maptech (written testimony from NOAA Coastal Services Center [CSC]). 14   The Defense Advanced Research Projects Agency’s $1 million “grand challenge” prize for advanced autonomous robots is an example. See <http://www.darpa.mil/grandchallenge/index.htm>. 15   USDA’s early licenses “were terrible.” It took years to negotiate licenses that provide value for both sides (testimony of Glenn Bethel).

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Licensing Geographic Data and Services frequently are willing to negotiate on price and other license terms.16 An agency’s ability to collect data in-house or through competing vendors can provide useful leverage in these negotiations.17 Finally, some agencies have learned to negotiate new types of licenses that potentially offer better value to the agency and commercial suppliers. For example, NGA designed its Clearview contract after carefully studying what the commercial sector needed and could accommodate.18 Similarly, representatives of Navteq, Inc., report being impressed by government’s willingness to protect the company’s investment through reasonable download restrictions and indemnities.19 4.2.4 Coordinated Procurement In theory, government agencies may be able to pool their purchasing power to get improved products, lower prices, or better terms when they license geographic data from the private sector. In practice, agencies must determine (1) how many agency employees will need to use the data, (2) how they plan to use the data both currently and in the foreseeable future, and (3) whether other agencies are interested in licensing the same data. Agencies have constructed ad hoc alliances to license geographic data.20 More formal, governmentwide procurement vehicles also exist.21 16   Space Imaging’s licenses are a “first offer” (testimony of Gene Colabatistto); Maryland’s Department of Natural Resources finds that private-sector companies are almost always flexible on terms (testimony of William Burgess). 17   Vendors realize that the Census Bureau will not license data if it can collect the same information cheaper in-house (testimony of Don Cooke and written testimony from U.S. Census Bureau, p. 3); STI Services, Inc. dropped its demand for exclusive rights to Hawaiian hyperspectral data after NOAA indicated it might go elsewhere (testimony from NOAA CSC). 18   NGA studied the private sector’s needs and wrote its request for proposals in consultation with industry (Roberta Lenczowski, NGA, personal communication, 2003). 19   Testimony of Cindy Paulauskas. 20   For example, a NOAA/FEMA/USGS/private foundation alliance to acquire digital elevation data for southern California and a NOAA/FEMA/USGS/private company partnership to license digital elevation data for Santa Cruz and San Mateo counties (written testimony from NOAA CSC). 21   In 1986, USGS led a governmentwide effort to license SPOT Image data. More than 30 federal agencies have made purchases totaling $42 million under the agreement (written testimony from USGS, p. 5).

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Licensing Geographic Data and Services 4.2.5 Federal Agency Licensee Experiences Federal agencies have experienced both benefits and drawbacks when licensing geographic data from the commercial sector.22 Some of those experiences are presented below, followed by a summary of federal agency reactions to licensing. 4.2.5.1 Benefits to Federal Agencies of Licensing Geographic Data from the Private Sector Federal agencies related numerous circumstances in which they received benefits from licensing. These benefits include Lower Data Acquisition Cost. Licensing frequently offers significant cost advantages over other methods.23 Immediate Availability. Data for a specific immediate government need may already exist in the commercial sector. In other instances, private companies can quickly redirect existing acquisition systems (e.g., satellites, aircraft, or field crews) to gather needed data. When data are gathered for an immediate or urgent need, they often have a very short shelf life for government purposes, so that restrictions on reuse imposed by a commercial supplier may cause few problems for the agency.24 22   Federal agency experiences in licensing data to the commercial sector are rather limited. For a discussion of factors surrounding such situations, see Section 4.3 and Chapter 8, Section 8.4.3. 23   USDA has obtained “attractive” discounts from SPOT, Earthsat, Earth Observation Satellite Company (EOSAT), and Space Imaging (testimony of Glenn Bethel); in written testimony (pp. 1–2), USGS describes efforts to negotiate low-priced data licenses for The National Map; obtaining county data under royalty-free licenses “enabled the end products to be cheaper and better than they would be if FEMA had insisted on outright ownership of all the datasets” (written testimony from FEMA, p. 2). In contrast, however, private-sector firms frequently set prices that “greatly exceed the cost that would be incurred if the USGS procured the data through… some other competitive procurement process” (written testimony from USGS, p. 3). 24   Testimony of Anne Hale Miglarese.

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Licensing Geographic Data and Services Enabling Faster Build Times. In creating a new information system,25 or making a new information system compatible with existing datasets,26 it may be easier, cheaper, and quicker to use existing commercial data. Some agencies (e.g., U.S. Census Bureau) launch projects using restricted licensed data and then migrate to the use of unrestricted data over time.27 Structuring the Release of Embargoed Data. Commercial data may lose substantial value within a few weeks or months. In such cases, licenses that restrict access or redistribution for short periods of time are often acceptable to government users.28 Supporting Specific Projects. In many cases, government can accommodate use and redistribution limitations on data used for a particular one-time project, whereas the same restrictions would be unacceptable for ongoing operations or decision making.29 USGS has occasionally accepted distribution restricttions on limited-coverage datasets used in specific one-time research projects.30 Further, restrictions that would be unacceptable for distributing project results may be acceptable if applied to the underlying data.31 Enhancing Derivative Products. In many cases, agencies use licensed data to update or correct existing government databases. License restrictions that limit government to extracting specific 25   FEMA’s Map Service Center saved “several years” by using Transamerica’s restricted GeoIndex data to launch its computerized map retrieval system. FEMA plans to phase out this proprietary content over time (testimony of Scott McAfee). 26   FEMA’s experiences in Nassau County, New York, Dekalb County, Georgia, Suffolk County, New York, and Santa Cruz County, California (testimony of Scott McAfee) 27   Testimony of Robert LaMacchia. 28   See, for example, SeaWiFS data discussion in footnote 10. 29   In the case of one-time projects, reduced acquisition costs are less likely to be offset by costs incurred in coordinating and administrating intellectual property rights. 30   Testimony of Barbara Ryan. 31   FEMA used licensed data in creating hazards assessment maps and engineer reports (testimony of Scott McAfee).

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Licensing Geographic Data and Services information for use in derivative products may be acceptable in these circumstances.32 Suitability for National Security Uses of Geographic Data. Commercial data are often licensed by defense agencies in order to control public access to sensitive information. A Vehicle for Allocating Risk. In some cases, data acquirers and providers use licenses to allocate their risks if delivered products fail to perform. Examples include disclaiming warranties and limiting liability.33 A Vehicle for Proper Attribution. Data suppliers use licenses to obtain attribution for their work. Similar terms are common in nonlicense transactions and are relatively uncontroversial. 4.2.5.2 Drawbacks of Federal Agencies Licensing Geographic Data from the Private Sector Federal agencies report that licensing also had drawbacks compared to other procurement methods. These include Product Acquisition Costs. Licensing can sometimes result in higher acquisition costs than outright purchase. A single federal agency may have several thousand geographic data users who use the data for many different purposes. In today’s market, it is sometimes less expensive and more efficient for an agency to bear the full cost of collecting and maintaining a database than to acquire and administer licenses that cover all agency users.34 32   For example, the U.S. Census Bureau’s use of CONOPS–GDT data, or its upgrade of TIGER with data from Salem County, Oregon (testimony of Robert LaMacchia). 33   An example from a commercial firm is Intermap Technologies Inc. End-user License Agreement provided by NOAA CSC; an example from a local government is the U.S. Census Bureau’s agreement provided with Marin County, California, data (testimony of Robert LaMacchia) 34   NOAA’s experience with Raster Nautical Charts (see footnote 13) is an example (written testimony from NOAA CSC).

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Licensing Geographic Data and Services Administrative Costs. Agencies that license data from multiple vendors must keep track of the restrictions that apply to all of the data in their possession and take reasonable steps to ensure that users respect those restrictions. These challenges can be daunting for large systems with many suppliers and hundreds of users.35 As a result, some agencies find it easier to segregate public domain and licensed data, which makes both datasets less useful.36 Transaction Costs. Negotiating licenses takes time and effort, in part because the geographic data community is still learning how best to use this approach. Particularly for small transactions, the investment in negotiations may be prohibitive. In some—but not all—cases, the transaction costs associated with other procurement methods may require less time, money, and effort.37 Coordination Costs. Licensing works well when agencies pool their purchasing power. However, this forces agencies to incur coordination costs to determine their own present and future needs, and the needs of other agencies that might be interested in the same data. In some—but not all—cases, the coordination costs associated with other procurement methods may require less time, money, and effort.38 For example, if an agency acquires full rights in data there is little need to know about the detailed rights that other agencies desire since all the rights may be shared. Friction Between Agencies. Different agencies may not license the same data, or may obtain different rights to use and redistribute 35   USDA finds that poor metadata often make it difficult to track and enforce restrictions against users (testimony of Glenn Bethel). Lack of metadata makes it difficult to know to whom Hennepin County employees can give data. Public access terminals make enforcement difficult as well (testimony of Randy Johnson). 36   Managing licensed data in an open environment poses significant computing challenges (testimony of Peter Weiss, NOAA-National Weather Service); USDA avoids licensing data when derived products would contain both proprietary and public layers (testimony of Glenn Bethel). 37   Robert LaMacchia testified on the U.S. Census Bureau’s prolonged and ultimately unsuccessful negotiations with a commercial vendor; Scott McAfee testified on FEMA’s prolonged and ultimately unsuccessful negotiations with Staten Island. 38   Ironically, local governments often band together or form regional consortia to purchase data as an alternative to licensing data from commercial vendors (testimony of Bryan Logan, EarthData, Inc.).

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Licensing Geographic Data and Services the same or similar data. This incompatibility in use rights can frustrate mutual support, cooperation, and sharing among agencies.39 Loss of Public Domain “Raw Material” Effects. Restrictions on dissemination of data obtained by government from the commercial sector can impose large costs if these data are important inputs to research and development by businesses or the academic community.40 In such circumstances, the interests of society may be better served if agencies acquire unrestricted rights, even if this costs more than licensing. Inability to Support Dissemination Needs. Agency missions and government laws commonly require widespread dissemination of government information.41 License restrictions that conflict with these requirements normally are unacceptable to agencies. To protect the proprietary interests of commercial companies from whom it has licensed data, a government agency may be required to enter into further licenses with all those to whom the agency has an obligation to disseminate the data. Such additional burdens may interfere with or greatly increase the cost of its dissemination obligations. Ambiguous Use and Redistribution Rights. Agencies report that ambiguous contract language sometimes deters them from using licensed data in new and unanticipated ways.42 In theory, agency personnel can resolve such ambiguities by reading the agreement for themselves, consulting government counsel, or contacting the vendor. In practice, however, it may be difficult for agency 39   Id. If data are owned outright by an agency, the agency is free to transfer any or all use rights to others. Presumably, friction could also occur in such a nonlicense procurement when costs are shared among agencies. However, the potential for incompatible use rights with licensed data adds an additional potential source of friction. 40   Testimony of Peter Weiss. 41   See Chapter 5. 42   “It is difficult to determine what is allowed” under FEMA’s GeoIndex license with Transamerica Corporation, and “innovative uses have been delayed as a result” (written testimony from FEMA, p. 8). FEMA also experienced difficultties interpreting use restrictions for Navteq data (testimony of Scott McAfee).

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Licensing Geographic Data and Services believe that simpler or more generous use and redistribution rights would increase total revenues.106 Incompatible License Rights. Different vendors rely on different business models. Even when individual license terms are reasonable, the combined restrictions may be unacceptable. Some observers believe that greater standardization may ameliorate this problem.107 Uncertain License Rights. Uncertain rights make licensed data less valuable to consumers. Some observers believe that clearer or more standardized rights would increase sales.108 Product Uncertainty. Agencies seldom tell industry what types of geographic data products they plan to develop. The resulting uncertainty inhibits investment. In some cases, neither government nor industry steps in, and needs go unmet. Among other effects, this blocks the creation of commercial products that would otherwise be licensed to government. 4.4.2 Summary of Commercial Experiences and Reflections Although some companies earn significant revenues from licensing geographic data, most revenue from sales to the domestic government agency sector and other domestic clients still comes from selling data acquisition and processing services.109 The data acquisition-for-hire model     their annual subscription period ends (testimony of Chris Friel, GIS Solutions Inc.); DeLorme spends nothing on enforcement—it is more cost-effective to invest in new products instead (testimony of David DeLorme); Navteq spends a small fraction on enforcement, although it does monitor competing products for traps and audits (testimony of Cindy Paulauskas). 106   License terms impede sales and have become “a brake on the industry” (testimony of Bryan Logan); dissatisfaction with licenses has persuaded many consumers to “make do” with public domain data or refly missions de novo (testimony of Chris Friel). 107   See, for example, testimony of Chris Friel. 108   Downstream product rights are not clearly defined, although the situation is improving (testimony of Bryan Logan). 109   This is the sense of the committee and industry observers (personal communications, December 2003, from James Plasker, American Society of Photogrammetry and Remote Sensing; Charles Mondello, Pictometry, Inc.; and

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Licensing Geographic Data and Services persists because agencies and other traditional large-volume purchasers in the private sector (1) are accustomed to purchasing data acquisition services,110 (2) perceive that they have specialized requirements that are not met by prepackaged licensed products, or (3) believe they gain the best value by acquiring full ownership rights in the acquired geographic data. As a general proposition, agencies are not convinced that licensing offers significant overall price reductions compared to data acquisition services for large-volume airborne imagery purchases. Commercial success with the licensing model tends to occur with data sales to large numbers of nontraditional low-volume customers who acquire imagery or other basic geographic data that were unaffordable under the acquisition service model. Examples include AirPhotoUSA (data for realtors and appraisers), and Navteq (data for transportation managers). Commercial vendors also have built successful business models based on licensing bundled packages of software tools and data. Finally, commercial vendors recently have begun to successfully distribute, under license, value-added geographic data layers that include such information as land-use classifications and physical structures.111 These products can sometimes offer substantial savings over traditional fee-for-service acquisition models. Licensed data can be a viable alternative when users are sufficiently flexible to accept predefined scale and classification schemes. The geographic data industry is evolving rapidly. Some observers believe that existing product or fee-for-service models will eventually converge, making license restrictions looser but also more prevalent.112 Other observers argue that technology eventually will drive data acquisition costs so low that it will become pointless to distribute old data under     John Palatiello, MAPPS), although it has not been possible to support this with revenue statements because they are not broken down in a convenient way. 110   Navteq perceives agencies as having a “not invented here” reluctance to license outside data (testimony of Cindy Paulauskas); agencies often resist licensing, and work together to pursue alternative strategies (testimony of Bryan Logan). 111   For example, Earthsat sells licenses to its GeoCover product with worldwide land cover. Sanborn’s CitySets contains physical structures and, among many options, the number of floors and construction materials therein. The insurance industry relies heavily on these products. Insurance Services Office sells subscription services to a fire risk database in California. The service provides such information as fuel, windiness of roads, and slope. ISO also provides a subscription service to locations of hydrants and capability of fire response by jurisdiction. 112   Testimony of Gene Colabatistto.

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Licensing Geographic Data and Services license.113 Still other observers argue that technology will accelerate licensing by making existing subscription services simpler so that data can be sold as products. For now, the only safe prediction is that licensing models will continue to evolve. Company representatives identified four trends that are likely to make licensing stronger over time. Improved Contract Design. Some vendors have begun to promote clear, attractive licenses as a sales tool. Competition between vendors will almost certainly make licenses more attractive to consumers.114 Validation. Consumers are often skeptical about the quality of licensed data.115 Some vendors believe that government or commercial-sector certification could increase sales.116 Standard Licenses. Licenses that were formerly negotiated on a one-off basis are becoming standardized.117 This trend is likely to reduce transaction costs and legal uncertainty over time. Simplification of Negotiations. Each successful negotiation provides a template for the next one.118 For this reason, negotiating costs should fall over time. At the same time, changing 113   Testimony of Bryan Logan. 114   Testimony of Gene Colabatistto and Cindy Paulauskas. 115   In Chapter 6, Section 6.2.1, we discuss the problems that are created by the fact that information is an “experience good,” one for which the acquirers may be unable to attach a value until after they have used it. 116   Testimony of John Palatiello and Bryan Logan. The government already certifies aeronautical and marine navigation charts. 117   Navteq offers click-and-accept automotive licenses over the Internet (testimony of Cindy Paulauskas); testimony of John Palatiello describing MAPPS efforts to develop standard-form licenses for its members. Standardized contracts are only one means for reducing transactions costs. In Chapter 6, Section 6.2.1, we also briefly discuss the use of blanket licenses and the creation of centralized marketplaces, which can effect the same types of reductions. 118   The effect of cumulative past behavior on costs is termed “learning by doing” by economists. Chris Friel testified how parties used an earlier agreement to move deadlocked negotiations forward, but consider testimony of Cindy Paulauskas that vendors may keep successful licenses secret in order to preserve competitive advantage.

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Licensing Geographic Data and Services technology and business models may delay the process by making earlier transactions irrelevant.119 4.5 ACADEMIC AND LIBRARY EXPERIENCES IN LICENSING GEOGRAPHIC DATA AND SERVICES, AND REFLECTIONS Members of the global scholarly community have taken advantage of the inexpensive and efficient opportunities offered by digital networks to share data and knowledge among themselves with relatively few legal, policy, or technological encumbrances. Most researchers within the academic community and government support the notion that publicly funded data of interest to researchers should be openly available, absent compelling considerations and policies to the contrary.120 As stated in an OECD report,121 “[a]ccess to and sharing of data reinforces open scientific inquiry, encourages diversity of analysis and opinion, promotes new research, makes possible the testing of new or alternative hypotheses and methods of analysis, supports studies on data collection methods and measurement, facilitates the education of new researchers, enables the exploration of topics not envisioned by the initial investigators, and permits the creation of new data sets when data from multiple sources are combined.” Geographic data are also used in education from elementary schools up to and including graduate-level research. Unrestricted access to government geographic data enhances these uses. The interests of students, teachers, researchers, libraries, and university administrators in gaining access to geographic data are not necessarily aligned. Students and teachers may need legal and convenient access to data to accomplish class demonstrations, laboratory exercises, and class projects, but care little about the right to publish datasets or derivative products. Researchers need full and open access to the work of others, including the underlying data upon which processes have been applied or hypotheses have been tested, to test the validity of published findings. 119   Testimony of Chris Friel in relation to changing technology; testimony of Bryan Logan in relation to changing business models. 120   For a discussion of the economic perspective on publicly funded research, see NRC, 1997, Bits of Power: Issues in Global Access to Scientific Data, Washington, D.C., National Academies Press. 121   OECD (Organisation for Economic Co-operation and Development), 2002, Interim Report, OECD Follow Up Group on Issues of Access to Publicly Funded Research Data, available at <http://dataaccess.ucsd.edu/Final_Interim_Report_20Oct2002.doc>.

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Licensing Geographic Data and Services Thus, they need the legal and practical ability to access, use, and extend datasets, including the right to publish. University library administrators have an interest in balancing the needs of all information resource demands on a campus as well as supporting the continuation of library functions. For this reason, their needs seldom reflect the priorities of any single researcher or academic group. University administrators must balance an even broader range of demands, and may be tempted to impose restrictions on the free flow of the information products of their faculty and researchers in attempts to increase their own institution’s income. Scientists and legal scholars are exploring and pursuing institutional, technological, and legal approaches designed to preserve openness and promote the advancement of science and innovation. For example, open-access electronic publishing approaches are being implemented on a widespread basis.122 Some of these new dissemination options might be applied to geographic databases if licensing restrictions begin to encroach on the ability of scientists to access scientific knowledge. In general, scholarly producers of academic and research materials are among the strongest advocates for the free flow of publicly funded data and information of use to the scientific community, including the data and information that the academic community itself produces. The general belief is that “government should support full, open and unrestricted access to scientific data for public interest purposes—particularly statistical, scientific, geographical, environmental, and meteorological information of great public benefit. Such efforts to improve the exploitation of public-sector information contribute significantly to maximizing its commercial, scientific, research and environmental use.”123 4.6 SUMMARY 4.6.1 Government Experiences Licensing Geographic Data and Services from and to the Private Sector Despite recent interest in licensing, most federal agencies still prefer full ownership rights in the data that they acquire, when this option is available. Their reasons include increased flexibility in the use of such 122   See Directory of Open Access Journals, <http://www.doaj.org>. See also <http://www.arl.org/scomm/open_access/framing.html#openaccess>. 123   P. Weiss, 2002, Borders in Cyberspace: Conflicting Public Sector Information Policies and Their Economic Impacts, Summary Report. Available at <http://www.weather.gov/sp/Bordersreport2.pdf>.

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Licensing Geographic Data and Services data, support of agency and federal mandates relating to access and dissemination, avoidance of duplication and waste, and saving money. Nonetheless, all of the federal agencies that testified before the committee have acquired commercial data under license. Their reasons vary from being able to make maps faster and more cheaply to having no realistic alternative. Reactions to licensing differ from agency to agency, although there appears to be a general consensus that any cost advantage offered by licenses must be weighed against constraints on current and possible future use and the interest in free exchange of information. In some cases, the coordination, negotiation, and administration costs associated with licensing are higher than those of other procurement methods. Federal agencies almost always distribute geographic data at or below marginal cost of distribution. Since the 1990s, however, many state and local governments have experimented with using licenses to generate revenue from their data.124 Ten years later, many of these entities have concluded that fee programs (1) cannot recover a significant fraction of government data budgets, (2) seldom cover operating expenses, and (3) act as a drag on private-sector investments that would otherwise add to the tax base and grow the economy. However, licenses to provide data to users may be useful to enforce proper attribution, minimize liability, enhance data security, and formalize collaboration. 4.6.2 Ways in Which Licensing Between Government and the Private Sector Serves Agency Missions and the Interests of Stakeholders in Government Data Agency missions can be broadly grouped into those requiring broad, limited, or internal data redistribution; those requiring distribution of derivative products; and those ensuring adequate citizen access and judicial review. In addition to utilizing outright purchases of data, agencies have experimented with a range of licenses to satisfy their missions, with mixed results. For the most part, agencies whose missions require broad dissemination find licensed data less useful than agencies that have small numbers of users or need licensed data as an input for making derivative products. Over time, some agencies have learned to negotiate new types 124   Examples included Hennepin County, Minnesota; the State of Maryland; and various European weather services. See also examples cited in Open Data Consortium, 2003, 10 Ways to Support Your GIS Without Selling Data, available at <http://www.opendataconsortium.org>.

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Licensing Geographic Data and Services of licenses that potentially offer better value to both the agency and commercial data suppliers. Commercial data vendors have a mixture of attitudes to licensing. In general, those providers whose business models depend on adding value to data gathered from local, state, and federal agencies at the cost of distribution tend to oppose government data acquisition through licensing. Those providers whose primary business models involve selling imagery or low-value-added geographic products to government generally welcome the prospect of licensing data to the government. Academic users and producers are among the strongest advocates for the free flow of government geographic data as well as the free flow of any other publicly funded data and information of use to the scientific community. Nonetheless, the interests of students, teachers, researchers, librarians, and university administrators in gaining access to geographic data are not necessarily the same. For example, students and teachers may need legal and convenient access to data to accomplish class demonstrations, laboratory exercises, and class projects, but may care little about the right to openly publish datasets or derivative products. Researchers, on the other hand, need the legal and practical ability to access, use, and extend the datasets and work products of others, including the right to publish. Ultimately, however, although agencies are often charged with promoting the public interest, the interests of actual and potential user groups may be discounted by agencies faced with budgetary constraints and vendors’ demands. 4.6.3 Arguments in Favor of and in Opposition to Licensing Arrangements Arguments in favor of licensing data as opposed to outright purchase include reducing acquisition costs in many instances, making data immediately available, enabling faster build times for operational information systems, structuring data release after a given embargo period, supporting specific agency projects as opposed to ongoing operations or decision-making functions, updating or correcting existing government databases, supporting national security uses, allocating risk, ensuring proper attribution, and supporting commercial markets. Arguments against licensing include increased acquisition cost in some instances; increased negotiation, coordination, administration, and enforcement costs; uncertain use and redistribution conditions; limited redistribution rights; inability to meet specialized needs; and loss of public domain effects. Nonetheless, licenses

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Licensing Geographic Data and Services continue to evolve rapidly and are likely to improve over time. Suggestions from the commercial sector for improving and increasing adoption of licenses include promoting better contract design, encouraging validation of licensed data to increase user confidence, developing standard-form licenses, and simplifying negotiations. Having presented the current state of licensing experiences in this chapter, we now proceed over the next three chapters to distill the legal, economic, and public interest underpinnings of U.S. data policy in preparation for the succeeding two chapters that look to future approaches to licensing and options that could address the interests of all stakeholders in geographic data.

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Licensing Geographic Data and Services VIGNETTE D. A SCIENTIST’S DREAM For thousands of years, humans believed that wildfires were unpredictable and unknowable. By the late twentieth century, scientists knew better: Measure how different fuels burn in the laboratory, acquire detailed positional data on fuels and physical conditions in the field, gather details on atmospheric conditions, and after that, everything is physics and computer models. Better computer models would result in better planning for wildfires, more timely emergency response, and savings in avoided damage to property and loss of lives. However, the models are voracious. They require detailed and up-to-date positional information on dozens of variables. Some of the needed data can be gathered by dropping ”smart dust“—autonomous millimeter-scale sensing and communication devices that track temperature, humidity, barometric pressure, light intensity, vibrations, and location—into the path of an active fire. Other needed data such as slope angles, soil types, moisture in the upper soil, vegetative ground-cover mass and moisture content, wind direction, and wind speed come from such sources as digital elevation maps, meteorological stations, ground penetrating radar, and satellite images. By correlating the active burn conditions with the prefire in situ conditions using all available data, fire progression models can be greatly improved. However, there is one more needed dataset that cannot be gathered after the fact. In this instance, the only existing preburn imagery that is sufficiently current and detailed to allow adequate vegetation mass estimates for model development is in the archives of a commercial satellite company. Dr. Karen Jones is able to quickly find the data source online. To do good science, Dr. Jones also needs permission to disseminate the results in a manner that will ensure in-depth peer review by other scientists testing her conclusions. Fortunately, in the new geographic data marketplace, companies are increasingly flexible and liberal in granting affordable use rights to basic imagery such as the preburn imagery needed by Dr. Jones and her colleagues. The dream comes down to this: Can the geographic data market continue to shift to reasonably and readily agree to the needed license under the desired use conditions?

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