The excellent ‘Rights in Geospatial Information: A Shifting Legal Terrain’ by Isabella Alexander and Marlena Jankowska in
(2018) 41(3)
Melbourne University Law Review comments
The growing significance of ‘big data’ raises new issues for copyright law, not least when
the data is presented visually or graphically to generate new and useful information and
insights. One such example is the case of digital maps. Maps and written descriptions of
geographic information have long presented challenges for the law of copyright, most particularly
because they are perceived as factual compilations. The appearance of maps, and
the information they contain, has changed considerably over time. However, the last few
years has seen an extraordinary transformation in the methods and practices of collecting,
storing, representing and disseminating geospatial data and information. This article considers
how copyright law applied in the analogue era to regulate the production and dissemination
of geographic information, the effects of new technologies and digitisation on
how law applies to geospatial data and associated products and systems, and whether either
a database right or some other form of protection is required.
The authors argue
Australia lies on the fastest-moving tectonic plate on Earth, floating northeast
at a rate of about seven centimetres a year. This means that geodesists are faced
with the continuing challenge of keeping the coordinates of maps up to date.
The appearance of maps, and the information contained therein, has changed
over time, influenced by the particular purposes they are designed to serve,
developments in adjacent technological and scientific fields, as well as cultural,
economic and ideological factors. Until recently, these changes have occurred
at rather the same pace as continental drift: slowly and perhaps, to the majority
of people, imperceptibly. However, the last few decades have seen extraordinary
transformations in the methods and practices of collecting, storing, using, representing
and disseminating what was once called geographic information but
is now more broadly termed ‘spatial data’. Updating Australia’s datum so that
it reflects a position on the face of the globe that matches satellite positioning
systems is an essential step towards modernising Australia’s spatial data management.
What makes it essential is the centrality of locative technologies in
almost every aspect of contemporary society — from government, to industry,
to everyday activities such as finding a restaurant or driving a car. Indeed, it has
been claimed that Earth Observation currently provides $500 million in direct
benefits to Australia, a figure estimated to increase to $1.7 billion by 2025, while precise positioning added $2.3 billion to the Australian GDP in 2012, and is
estimated to add more than $8 billion by 2020.
Despite the growing importance of spatial data, surprisingly little close attention
has been paid to the legal situation of the new, spatially embedded, digital
citizenry. In particular, little attention has been directed towards the legal
status of the spatial data involved.
A recent article in The Economist observed
that ‘[d]igital information is unlike any previous resource; it is extracted, refined,
valued, bought and sold in different ways. It changes the rules for markets
and it demands new approaches from regulators. Many a battle will be fought
over who should own, and benefit from, data.’
Companies and government
bodies that deal with data treat them as property that is capable of being owned,
bought, sold and licensed. Yet, as the Productivity Commission has recently
noted, in Australia, ‘no one “owns” data; in limited circumstances, copyright
law can protect the form in which information is expressed, and it may be possible
to claim ownership over a processed dataset’.
This article will consider the extent to which existing intellectual property
laws in Australia encompass spatial data and associated products or systems,
such as digital maps, cybercartography, geographic information systems (‘GIS’)
and other emerging spatial media. It will begin by examining the changing terrain
of geographic information and associated digital products and clarifying
terminology for a legal audience. It will then turn to consider how the legal
landscape has changed. It will look first at how copyright law was used in the
past to regulate the ownership, production and dissemination of analogue maps and spatial data, and the challenges that arose in that context. It will go
on to examine how changes in the digital era have affected the way that the law
will apply to digital maps and digital spatial data, questioning whether copyright
remains an appropriate legal mechanism for assigning ownership and access
rights. Next it will consider whether a database right modelled on that in
Europe would provide for better processes and outcomes, concluding that it
will not. It will finally turn to consider some of the matters that need to be considered
when deciding whether a new category of right is required to address
this gap.
Before continuing, some explanation of terminology may be of assistance.
This article will use the phrases ‘spatial data’ and ‘geospatial data’ as meaning
essentially the same thing. In other words, the terms will be used in a broad
sense to mean data which refers to a specific location or geographical area. Spatial data can thus cover not just datasets that describe physical geography,
but also datasets describing topographical features, cadastral or land title information,
transport and infrastructure, location of resources, such as groundwater,
or utilities.
The words ‘data’ and ‘information’ are frequently used interchangeably by
commentators, with little significant impact. Here, we will endeavour to treat
them as having a subtly different meaning, by reference to the commonly used
‘knowledge pyramid’. In the knowledge pyramid, ‘data precedes information,
which precedes knowledge, which precedes understanding and wisdom’.
Without wishing to get bogged down in technical definitions, which have
themselves been the subject of scholarly debate, we will seek to use ‘data’ in
the sense of ‘raw elements’ that have been extracted through observation, computation,
experiment or recordkeeping, while the word ‘information’ will be
used here in a broader or less technical sense, to mean an accumulation of data or ‘data plus meaning’. Geospatial, or spatial, data can be understood broadly
as ‘any data (quantitative and qualitative) which have a location (eg spatially
referenced with coordinates) or topology’.
They conclude
Maps have long presented challenges to the law of copyright. In the mid-18th
century it may have seemed appropriate to apply the model of literary copyright
to maps because, like books, they were capable of being reproduced and sold
by those who had not invested in their production. However, almost immediately
a model founded upon authorship threw up problems for a work which, in the Age of Enlightenment, was increasingly presenting itself as scientific, rational
and objective — and, therefore, un-authored. The model pursued from
the 19th century of fitting products into categories of work is also a poor fit for
paper maps, which can be characterised in different ways depending on
whether one focusses on their mode of production (engraving, drawing, photography
etc) or their perceived purpose or value (aesthetic, informational or
functional). Even if the map is conceded to fit within the scope of copyright law
such as to be capable of ownership, the question of who owns a map produced
from a mix of public domain, proprietary and publicly funded materials is not
an easy one to answer.
All of these problems persist in the digital age, and are compounded by uncertainty
over new methods of data capture and the growing importance of the
geospatial data as a separate source of commercial value. It is now the case that
copyright law, as it currently stands in Australia, does not offer appropriate protection
to digital maps and geospatial data. It is further argued that the situation
would not be improved by introducing a database right along the lines of that
adopted in the European Union. However, this is an area which needs to be
addressed. It is far from satisfactory to continue to treat digital maps and geospatial
data as being protected by copyright if this is not in fact the case. While
the use of CC licences might have alleviated many of the concerns surrounding
access to geospatial data, in particular that gathered by the state at the taxpayer’s
expense, this is not a sufficient reason to continue the charade. Indeed,
continuing to treat geospatial data as copyright runs the risk of over-protecting
this material through offering it the broad and long-lasting protection
of copyright, while failing to demand that it meet the threshold requirements
for such protection to subsist. It is, for example, deeply unpersuasive to contend
that Google Maps, updated daily, or a live stream of digital spatial data, should
be protected for the life of any actual or assumed author and an additional
70 years.
Instead, one of two approaches should be adopted: either digital form maps
(not created by humans) and geospatial data should be expressed clearly to fall
in the public domain; or, a new sui generis right should be created which is
tailored to the particular conditions in which they are created, used and disseminated.
It is worth noting here that the European Commission has recently observed that ‘[t]o build the data economy, the EU needs a policy framework
that enables data to be used throughout the value chain for scientific, societal
and industrial purposes’. One of the options that is being considered in this
context is the creation of a data producer’s right.
It is beyond the scope of this article to explore in detail the advantages and
disadvantages of either option. Arguments in favour of protecting geospatial
data and digital maps include: incentivising their production because of the
economic and/or social value of the data itself and of products and resources
generated from using it; rewarding those who have invested time, effort and
expense in its production; the need to ensure integrity, quality and authoritativeness
of data and data sources; and the need to recover costs or generate
profits. Such arguments apply to both state and non-state actors. Arguments
against intellectual property rights in geospatial data emphasise public access,
particularly in relation to government data sets. Proponents of open data policies
point to success stories involving rapid response mapping, such as the use
of OSM to create a map of streets following the 2010 Haitian earthquake, or
disaster stories, such as the way in which Crown copyright was said to hamper
Google’s efforts to display fire maps and emergency warnings in the devastating
Victorian fires of 2009. They might also point to new modes of data production
and collection such as VGI and crowdsourcing, and the blurring of boundaries
between users and creators, which do not align well with intellectual property
law’s traditional approaches to ownership and control.
In considering whether a new intellectual property right in spatial data
should be introduced, it would be necessary to consider a number of factors.
Chief amongst these are the extent to which it is necessary to provide incentives
to collect, produce or analyse geospatial data and the extent to which governments,
members of the public, other users and potential competitors need to access and use such data. It would also be important to think about the nature
of the right in question (ie what exclusive rights would be granted to owners
and what exceptions to such rights would be appropriate) and to define the
types of spatial data to which it would apply, and the duration of any such right.
A limited right, more akin to a neighbouring right such as the broadcast right,
with a tailored term of protection and restricted scope, might offer a way to
reconcile some of the arguments on both sides of the debate.
While some have heralded recent developments as the rise of the democratisation
of information and welcomed a ‘neogeography’ that disrupts and devolves
established, centralised structures of geographic knowledge control,
this new world of openness and interaction has not swept away inequalities of
access and control, although it has enabled greater levels of individual participation.
Rather, as Kitchin, Lauriault and Wilson point out, the new spatial media
‘enrol[s] users within new markets and subjugate[s] them within new relations
of control and power’. It is of central importance that we recognise that
the changes in technology and associated practices mean that existing legal
structures are no longer appropriate, and that we engage actively in exploring
new options for legal and regulatory mechanisms that reflect the new conditions
and help direct government, industry and individuals towards mutually
beneficial engagement and collaboration.
