William Shephard Holland, Esq.
Executive Director, Wisconsin Land Information Board
Madison, Wisconsin 53707-7844
hollab@mail.state.wi.us
1. INTRODUCTION
Open records laws in the United States are based on the notion that government should be open to the citizens who pay for it. As a result, most jurisdictions are constrained to the cost of reproduction in what they may charge for public information, including spatial data, held by public agencies. While the reasoning underpinning open records laws are based on solid principles, these policies do not address the broader and increasingly dynamic economic and policy context. For instance, the cost of acquiring, maintaining and distributing digital geographic data is enormous. These costs are offset by the tremendous utility of the data and the technology that is used to manipulate them. Increasingly, public information, particularly geographic information, is being used by the private sector to support commercial activities. In addition, it can be argued that open records laws may actually have the effect of limiting the availability and usefulness of public information because the information is complex and requires technology to be useful. Because governments are not in the business of data distribution, consumers of public information may not be well served.
To address these and other problems, more and more frequently, state and local governments are looking toward copyright and the licensing of digital data as a means of partially recouping the costs of data development and distribution. In using these techniques, agencies typically assert and reserve rights of authorship granted under U.S. Copyright laws (17 U.S.C. sec. 101 et seq.) in geographic and land information system ("GIS/LIS") data. In turn, outside users of the information are granted a license to use the data subject to restrictions on subsequent redistribution. Frequently, these licenses grant unlimited use to individuals or their organization. Under this model public data is given out on a cost of reproduction basis. Redistribution and commercial use of the data is restricted and subject to a licensing fee that exceeds the cost of reproduction.
The purpose of this paper is three-fold: First, is to assess the current legal, economic and policy situation. Second is to explore implications of expanded use of these techniques. And, finally, to suggest policy implements that will help ensure that the use of these techniques will serve the public good as manifested in the tradition of good and open government in the United States. It should be noted that the focus of this paper is on state open records laws, not the federal Freedom of Information Act. As such, this paper considers the implications of these policies on state and local governments.
2. POLICY BACKDROP
At the onset, it must be emphasized that this author strongly believes in open government, public access to governmental information and the notion that citizens must have access to the "means" of public decision making to ensure governmental accountability. The issue for this paper is, therefore, how to ensure that these goals can be advanced while encouraging government and, indeed, society as a whole to function in the most efficient and effective way possible. As a practical matter, that means that we cannot rely solely upon open records laws as a data distribution mechanism for public information.
Open records laws are typically somewhat vague in their application. For example, many such laws provide that records should be accessible but that the costs for reproduction must be "reasonable" without further definition or specification on a per unit basis. What elements comprise reasonable costs of reproduction in these laws are similarly vague. (Peterson-Dando, 1993) Do reasonable costs include: Only transcription? Media transformation? Only the cost of the media itself? Staff time? Value added services such as education about the data, or restructuring and manipulation of data to fit the requester's needs? These questions are not insignificant. As will be more fully developed later, the resolution of these questions will bear significantly on the availability and, ultimately, the accessibility of public information. The real challenge in this arena is how to observe the important principles embodied in open records laws while making government and society more efficient and effective and to maximize the availability and accessibility of data.
It can be fairly stated that open records laws were not designed to be data distribution mechanisms. The purposes of these laws were to serve broader concerns of a free and democratic society. By and large, open records laws are a product of the policies and a technological reality of their time - thirty to forty years ago. Accordingly, these laws do not reflect the economic and societal context of the "information age". This does not suggest that these laws must undergo a wholesale reformation. To the contrary, these laws and their application ought to be permitted to evolve organically to meet the context of the times. The notion of the law as an evolving organism is not new. For example, even the extremes of constitutional law and commercial law have been viewed as evolutionary.
3. MARKET ANALYSIS
Given their heritage, open records laws do not address many data distribution issues, particularly in the context of electronic information. In many respects, the issues and function of data distribution are economic in nature. When viewed in this context, the current structure and interpretation of open records laws as a means of data distribution do not address and, in many cases, aggravate a number of both demand and supply side issues. This limitation is particularly poignant in the context of GIS/LIS data and technology. It should be noted, the following observations are, at best, casual empiricism based on the author's experience with the Wisconsin Land Information Program. These issues include:
3.1 Demand Side
Specific data needs of consumers do not always match the data available from governmental sources. For example, the data may be:
Other Demand Side considerations include: The demand for public information is motivated by a wide range of interests, from personal, to public accountability, to commercial interests. Often, information provided to open records requests are not responsive to the intent of the request. Open records requests, in and of themselves, do not ensure that government will be open and accountable. Only the most sophisticated requesters (typically the private sector or well funded public interest groups) have the capacity to make full use of automated data to open governmental activities for inspection. This is because of the complexity and abundance of data, particularly, GIS/LIS data.
There appears to be a "Commercial Purposes Paradox". For commercial purposes the greatest demand for public information is inversely related to the willingness of agencies to "sell" the information. For example, some of the most "valuable" or "marketable" geographic data is automated U.S. Census data because of its scale, extent, depth and usefulness for commercial purposes. Nevertheless, the law and, perhaps more importantly, the tradition of federal agencies is to release information at only the cost of reproduction. Conversely, local governments have shown a greater propensity to want to sell data to recover the costs of data and systems development and maintenance. Even though, the potential market for local data is really quite small in comparison to that of the federal government. This is explainable on at least two accounts. One is economic. The revenue base and the cost structure, particularly economies of scale, are in stark contrast between federal agencies and local governments. Federal agencies simply are more capable of data development. The second aspect is perceptive. There is a much more direct interface between local governments and citizens. Local governments are physically closer to consumers and serve more often as the custodian of data vital to citizens. Hence, there is great perception of demand for GIS/LIS data at the local government level.
The ultimate market for commercial requests for public information is questionable. In the final analysis, for most state and local governments, sales of data will not be a profit center for the agency. On the other hand, sales of data may be a significant revenue source to offset some internal costs.
3.2 Supply Side
The costs of data development and maintenance are enormous. Nevertheless, one must assume that these investments would be made to support the business functions of government irrespective of whether there is an opportunity for cost recovery or not.
The costs of data distribution are growing larger and increasingly harder to manage as information is becoming automated. As was noted earlier, consumers of automated public information are increasingly demanding specialized services with their requests, including education about the data, consulting, data transformation and data manipulation. Agencies that do not simply absorb the costs of value added services often respond to increasing demands in three distinct ways:
a. Narrowly define available data. For example, an agency will only recognize discreet and complete data sets as public information, not work in progress or partial data sets. These agencies respond to open records requests by providing the discreet and complete data sets and typically will not release any works in progress.
b. Establish service bureaus. This is the entrepreneurial response to the demand for data and associated services. In many respects, these service bureaus are "entrepreneurial" in that they provide services to entities within and outside of the public agency. Typically, these service bureaus will provide information at the cost of reproduction, but will charge market or near market rates for specialized service and product creation.
c. Create policies that risk running afoul of the law. When confronted with information requests, these agencies will assess their capacity to respond. If it believes that the request is too onerous, it may find ways to avoid satisfying the response. Techniques for avoidance include narrowly reading the request and limiting the response. Broadly reading the request and responding that it is not specific enough for reply. Or, finally, charging fees in excess of the cost of reproduction.
Data is developed by public agencies as tools to carry out their statutory mandates. As a result:
a. Rational Preferences. Rational public agencies seek to maximize those preferences and data needs that meet their mandates and not, necessarily, those of potential "customers";
b. Privacy. Privacy, confidentiality and ethics laws must be observed which may limit the completeness of any given response. It should be noted that most public records are subject to open records laws. Nevertheless, many records, particularly personally identifiable information, is excepted from the usual requirement for distribution upon request.;
c. Resource Allocation. Budgets and resource allocations are made to meet mandates, not to accommodate the potential demand for public information;
d. Irony of Accountability. Excepting those agencies whose mandates are custodial in nature (e.g., Register of Deeds, etc.) data development and data distribution are only incidental activities in meeting mandates. Ironically, it is those regulatory agencies for whom data development is incidental to carrying out their mission for which there is the greatest need and demand for openness and accountability.
Public agencies are institutionally constrained in changing the scale of their operations to accommodate increasing demands for information. Most public agencies are, by law, endowed with a limited number of full time equivalent positions. To increase staff usually requires some legislative act. In the short run, it is difficult, if not impossible for agencies to develop the capacity to satisfy rapidly increasing demands for information. Even in the long run, public agencies are constrained in their ability to expand productive capacity to answer and satisfy the growing array of service and product demands. This phenomenon is only exacerbated in the era of "down-sizing" government.
Even though the costs of data distribution are large, agencies find it difficult to recoup all reasonable costs of reproduction. Whether because of an overtly conservative approach to charging the costs of reproduction or because of the inability to adequately account for all reproduction costs, many agencies charge less than their true costs of supplying public records. This is particularly true in cases where value-added products and services are also provided, where there is a tendency to internalize those costs to the providing agency.
Public data, particularly automated data, is in a state of continual modification. A major advantage of the technology is the ability for rapid revision and update. Data dynamics are also somewhat evolutionary in that information is continually being improved with newer data replacing outdated information. This raises a concern in some agencies regarding subsequent redistribution of information that may be outdated or outmoded. For many agencies, control over subsequent redistribution of data is important for liability and other reasons.
Many agencies are concerned with redistribution of public information from a privacy perspective. While individual data sets may be adequately safeguarded from revealing personally identifiable information, combination and recombination from multiple public agencies pose a possible threat to privacy.
4. ECONOMIC AND POLICY ANALYSIS
The foregoing observations raise a number of vexing economic and policy questions. The following provides further discussion and analysis of the overall policy and economic dynamic - as it exists presently and how more extensive use of copyright and licensing may affect matters in the future.
4.1 Customer Focus
It is clear from both the supply and demand sides of the economic equation that the current function of open records laws are not particularly "customer focused". This stands to reason insofar as state and local governments were not created nor designed to efficiently and effectively provide services outside of seeing to the health, education and welfare of their citizens. These observations are not intended to malign government. To the contrary, government behaves rationally if it focuses on its primary mandates. Simply, data distribution does not figure strongly in the overall objectives of many governmental organizations. (The exception, of course, are agencies whose functions are primarily custodial such as Register of Deeds or Secretary of State offices. These offices provide the public record concerning title to both personal and real property). Nevertheless, agencies are regularly called upon to provide information even though it is not their principal mission to do so. For example, in most Wisconsin counties there is an office called the Real Property Lister. These Listers are responsible to manage parcel information, primarily, for property tax purposes. Listers maintain parcel maps, and collect and manage parcel information such as ownership and assessment data for internal county purposes. A substantial amount of the Lister's time is devoted to responding to private information requests from realtors, developers, surveyors, and property owners.
This phenomenon may also be a function of demand. It can be argued that there is very little demand for or interest in "public" information (the components of decision making) in contrast to information that relate to private interests. Most requests for public GIS/LIS information are not formal open records requests. To the contrary, most requests are typically ad hoc inquiries about property, assessment, sales data, zoning, etc. Perhaps if there were a greater demand for governmental information, agencies may be more sensitive to product and service delivery. In a very real sense, demand begets supply.
To be sure, efficient and effective data distribution will depend very strongly on a sense of the market for public information. This is a burden of both producers and consumers of information. To date, public organizations by and large treat information requests as a necessary inconvenience. Unfortunately, the tremendous public investment in information does not yield its full value to society without extensive use outside of the public sector.
4.2 Accessibility But Limited Availability
Earl Epstein has characterized three values, public, private and commercial, that apply to activities that rely on public information. In regard to the public value, Dr. Epstein has observed:
The public value is the need by citizens and groups to know what their governments are doing. This value is expressed as . . . open records laws. The goal of these laws is exposure of government activity and its basis. The goal is not access; access is the means. Satisfaction of the need to know is fundamental in a democracy, and paramount in the consideration of the development of information systems. Information is empowerment in a democracy. Access is the on-ramp. The distinction between ends and means is important because it tells us to segregate what is used in government activity from what is not used, and not to segregate based on physical forms of data. (Epstein, 1991) (emphasis added).
This public value is important to democracy. Consequently, the lack of a customer focus leads to an especially troubling assessment. While public information may technically be accessible, it may not be entirely available because of its complexity or other limitations. The lack of availability effectively impedes the objectives of open records laws. This profoundly affects ordinary citizens who typically do not have a full understanding of the data or access to the technology to make full use of the data. It can be argued that GIS/LIS data in their raw form, whether on paper or in electronic media, are simply not useful. Even unfettered access to information does not provide insight to the "means" of public decision making because much of the functionality of the technology and data is beyond the reach of most constituents. This is because with GIS/LIS, a major portion of the potential "means" of decision making is in the technology's analytical capabilities. Therefore, without access to the technology and the sophistication to operate it, one truly does not have the ability examine public decisions.
4.3 Concentration and Imperfect Competition
This leads to an equaling troubling assessment. It can be argued that with the complexity of GIS/LIS data, open records laws have created a concentration of governmental information that may be described as a form of imperfect competition such as an oligopoly or a monopoly. These are not monopolies in the purely economic sense. They are monopolies of information and knowledge. On one hand, this "market" can be viewed as a monopoly contained within the bureaucracies that hold and maintain the data. Under this theory, these agencies have a monopoly over means of decision making. A comparable argument is that the market is an oligopoly comprised of bureaucrats, the well endowed public interest groups, and the private sector. These groups have access to both the technology and the data and, as such, the means of public decision making.
What are the potential effects of these two models of imperfect competition? Whether monopolistic or oligopolistic, the result is the concentration of knowledge in the technically empowered. At first blush, this would seem to be a frightening aspect of the technology. Those jurisdictions who choose not to provide education, data manipulation and other value added services can in effect "hide behind" the technology. If one accepts the premise that knowledge is power, then in the world of GIS/LIS the current structure of open records laws concentrates power in government and the most sophisticated public interest groups - not ordinary citizens. Nevertheless, if one looks at this matter with an objective and critical eye, however, this is not a new phenomenon nor limited to the GIS/LIS world. Election and other reform efforts underway at the state and federal level are geared toward less concentration of influence and authority for the politically empowered. In many respects, the purposes of open records laws include dissipation and decentralization of knowledge and, hence, power, from the political and institutional elite. It can be fairly stated, however, that automation of public information, particularly GIS/LIS, aggravates this concentration.
How does imperfect competition affect private concerns? For commercial ventures that are technically competent, this may mean that they can charge for information at or above its marginal cost. Pricing above marginal cost is one effect of imperfect competition. In this case, the imperfect competition would be characterized by monopolistic competition. The trademark of imperfect competition is the price premium afforded sellers. Beyond this price premium, private sellers enjoy a cost advantage as well. Because of open records laws, the acquisition costs of public data are less than development costs. This provides extra opportunity for profit above total costs. It should be noted, however, that under the current market conditions commercial ventures face the possibility of competition in the market place from other firms and, occasionally, public agencies that choose to sell data at marginal cost. In the long run, exclusivity and, hence, imperfect competition in the private sector will not hold up as open records laws are presently structured. If copyright and licensing techniques are used, some measures must be taken to ensure that exclusivity in the private market does not engender monopoly power. (Of course, governments and not for profit public interest groups can not realize on the profit premiums afforded the private sector in this model of imperfect competition. This does not mean that these entities cannot derive additional, non-pecuniary benefit from their position in this imperfect market.)
4.4 Cost Recovery Versus Cost Containment
Much of the discussion surrounding the marketing of governmental geographic data has been characterized as an issue of cost recovery, i.e., charging prices that recoup some part of the fixed costs of systems and data development and maintenance. While this is a useful characterization, it may not fully capture the dilemma facing state and local agencies. For many of these agencies, more and more, the issue is not one of cost recovery, but rather of cost containment. Meeting the educational and specialized services demands that accompany information requests can tax agency budgets. If agencies choose to absorb some or all of these costs, the impact can be significant, both in a staff time/budgetary sense and in a productive sense in carrying out the agency's primary functions. It has been this author's observation that state and local agencies are willing to provide information to requesters at the cost of reproduction, but that additional services needed with the information are difficult to respond to and costly to absorb into agency budgets. This affects requesters as well. Agencies respond to informal information requests on a first come, first serve and "time available" basis. (Tessar, 1993). Formal open records requests typically are responded to more quickly, either by statute or practice.
4.5 Public-Private Partnerships for Systems and Data Development
A closely related notion concerns the timing of cost recovery. It is possible to enter into a series of cooperative arrangements for the acquisition and maintenance of data. Potential participants in these arrangements include both other public agencies and private companies. Regulated private utility companies are frequently interested in partnerships or other cost sharing techniques for data development. Other private concerns, title companies, engineering firms, and real estate firms are also potential private partners. These partnerships, by their very nature, seek cost recovery before data is developed, i.e., at the "front end". Copyright and licensing are cost recovery techniques that are undertaken after data and systems have been developed, i.e., at the "back end". Either front end or back end cost recovery provide some financial relief to publicly funded agencies. Furthermore, these techniques are not mutually exclusive, as they can be pursued in conjunction with one another.
A frequently cited impediment to the establishment of public-private partnerships for data and systems development is the protection of the private partner's investment. The private need for protection falls in two categories: First is private partner's return on investment. While cooperation on data development reduces the cost structure of private firms, companies also seek some return on their capital investments, specifically data. Copyright and licensing can provide private partners with some return on investment. The second concern for protection is an issue of competition. Many firms are reluctant to cooperate for the fear that their competitors could get the data under an open records request. There are at least two concerns of competition. First, some of the data that is developed may be proprietary or may be a trade secret that the firm is unwilling to release to the public or their competitors. Secondly, firms have no incentive for public-private partnerships if their competitors can ultimately get the data for the cost of reproduction under open records. Again, copyright and licensing can provide some protection to these private partners.
4.6 Economic Development/Commercial Subsidies and the Role of Government
Private use of public information at the cost of reproduction is often cited as a means for economic development. It has been suggested that whole industries can spring up around public information, which, in turn can create jobs, tax revenue and other opportunities. (Epstein, 1993). While there is merit to that argument, there is a countervailing view. This view suggests that providing public information for commercial purposes at the cost of reproduction unfairly subsidizes private profit at taxpayer expense.
While this is a debate that cannot be settled in this paper, these opposing views call into question the role of government and the role of the private sector. It can be fairly argued that the private sector can play a role in the distribution of public information. That role can include providing value added services such as education, consulting, scoping data requests, data transformation and data manipulation. While government too can provide these services, should it? In the current trend toward down-sizing, it seems unlikely that state and local governments will be able to allocate resources to these activities. At a minimum, it can be said that there certainly are opportunities for public-private partnerships at the back-end of data development.
5. LEGAL ANALYSIS
As the foregoing analysis indicates, there are a variety of reasons why governments may want to control the redistribution of public GIS/LIS data. These reasons include cost recovery, cost containment, protection of privacy, and liability for out-moded or out-dated information. One possible means to the control of the redistribution of GIS/LIS information hinges on whether or not copyright protection may be afforded public agencies for their information. This necessarily involves two questions. First, can state and local agencies assert a claim for copyright? Second, is the expression of public GIS/LIS data protectable under U.S. Copyright law? This author submits that the answer to both questions is yes. Nevertheless, neither question is entirely unequivocal. Second question, whether GIS/LIS data is subject to copyright protection, is certainly less well settled. The following is a brief analysis of these questions.
5.1 Summary of Copyright Law
Copyright law has its basis in the U.S. Constitution. That is, ". . . to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries". (U.S. Constitution, Article I, Section 8, Clause 8). Copyright has two main purposes. (Kidwell, 1989). One is obvious. That is to afford authors a degree of monopoly over the protected work, thereby encouraging useful human endeavor and that investment in productive pursuits. The more subtle, yet equally important, purpose is to encourage publication and distribution of information. This purpose serves a greater public benefit by enabling and encouraging the broad dissemination of useful ideas and culture. This constitutional vision is implemented by statute, namely United States Code, Title 17 Copyrights. Although there was a major revision to Copyright laws in 1976 (Public Law 94-993), there have only been relatively minor changes since then. Copyright protection exists:
". . . in original works of authorship fixed in any tangible medium of expression, now know or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include: (1) Literary works; . . . (5) Pictorial, graphic, and sculptural works.
(b) In no case does copyright protection . . . extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained or illustrated. . ." (17 U.S.C. sec. 102).
It should be noted that the statutory definition of "pictorial, graphic and sculptural" specifically includes, maps, globes and charts (nautical maps). (17 U.S.C. sec. 101). Moreover, Copyright protection also extends to the creation of "compilations". (17 U.S.C. sec. 103). Compilations are defined as ". . . a work formed by the collection and assembling of preexisting material or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes and original work of authorship." (17 U.S.C. sec. 101).
Copyright protection affords owners five exclusive rights, to:
Reproduce the work;
In essence, the owner of a copyright has control over the use and redistribution of the protected work through the creation of a monopoly in the subsequent use of the work. This monopoly position rewards the pursuit of the useful arts and sciences. In part, this monopoly, creates an incentive for authors to publish their work for the benefit of society as a whole.
5.2 Copyright Ownership in State and Local Governments
The definition of a copyright owner does not distinguish between classes of owners, whether, individual, corporate or public. (17 U.S.C. sec. 101). Nevertheless, copyright protection is not available for any work of the United States government, even though it may hold copyrights transferred to it. (17 U.S.C. sec. 105). Ostensibly, the policy underlying the prohibition of copyright protection for federal work is that citizens should not pay for preparation of the work in the form of taxes and again for use of the work at monopoly prices. In addition, federal agencies have maintained a tradition of not charging above the cost of reproduction for information, presumably as a service to citizens.
While the same policy reasoning may hold for state and local governments, no similar statutory prohibition exists. Moreover, it can be suggested that, in regard to the preparation of public work, state and local governments are in a different economic context than the federal government. Local governments, for instance, are much more frequently engaged in activities that may be considered "quasi-private" such as water and power utilities. Often, state governments manage toll roads which have been built with public funds, but for which a fee is charged for travel. State and local agencies are also much "closer" to citizens in that the primary product and service delivery occurs at those levels. The traditions of these agencies together with the legislative history behind copyright law suggests that state and local governments are entitled to different treatment than the federal government. A plain interpretation of the copyright statute suggests that state and local governments are entitled to claim copyright in appropriate works.
Case law has narrowed the type of work for which state and local governments can claim copyright. For example, "official documents", such as judicial opinions and the text of legislation, have been excepted from copyright protection as a matter of policy. (Kidwell, 1989). These official documents provide a framework for the "contract" of society and of social order. Without easy and open notice to all citizens, that contract and social order may be undermined. It should be noted that other kinds of state government records have received copyright protection. National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34 (N.D. Ill. 1980), affd. 692 F. 2d 478 (7th Cir. 1982), cert. denied, 464 U.S. 814 (1983). Accordingly, even judicial interpretation recognizes the right of state and local governments to prepare works and maintain a copyright interest in them.
5.3 Copyright Protection for GIS/LIS Data
The copyright statutes explicitly identify, maps, globes and charts (17 U.S.C. sec. 101) as pictorial or graphic works of authorship subject to copyright protection. (17 U.S.C. sec. 102). Obviously the other requirements of copyright, originality and fixture in a tangible medium of expression from which the work can be perceived, reproduced or communicated must also be present for copyright protection to attach. (Id). At first blush, GIS/LIS data fits precisely within this provision. However, case law and commentator interpretation of the case law has obscured what appears to be a clear statutory construct. This author submits that whatever confusion there exists is based on factual misconceptions of what maps and GIS/LIS data are and are not. Simply put, maps and GIS/LIS data are not facts, but are merely representations of reality and fact. The following briefly traces the case law theories and interpretations affecting copyright protection for maps and GIS/LIS data.
5.3.1 The Merger Doctrine.
The basis of the confusion over whether maps may be copyrighted can be traced to the notion that copyright protection does not extend to any idea, process, concept, principle, or discovery, regardless of the form in which it is maintained. Those categories of intellectual property may be protected by patent law which has an entirely different policy basis and a shorter duration. Courts have characterized this limitation to copyright by the "merger doctrine". This doctrine provides that when the expression of an idea is inseparable from the idea itself, the expression and the idea merge. This statutory provision, buttressed by the merger doctrine, prohibits one from obtaining monopoly power over an idea based on copyright. A very specific application of this doctrine, applied to maps, occurred in Kern River Gas Trans. Co. v. Coastal Corp., 899 F.2d 1458, (5th Cir. 1990). In that case, the plaintiff mapped proposed gas transmission lines on 1:24,000 scale U.S. Geological Survey topographic maps. This mapping was based on independent field surveys. In denying the plaintiff's claim, the Court held that the mapping of transmission lines did not lack from originality, but the maps created the only effective way of expressing the idea of the location of the pipeline.
5.3.2 Sweat of the Brow Theory.
Although the merger doctrine would, ostensibly, preclude copyright for maps, courts over time have sanctioned copyright protection under another justification, the "sweat of brow" theory. This theory was based on the statutory provision that copyright protection also extends to the creation of "compilations" (17 U.S.C. sec. 103).which are works formed by the collection and assembly of preexisting data that are selected and arranged in such a way that the resulting work as a whole constitutes and original work of authorship." (17 U.S.C. sec. 101). The underlying basis of the sweat of the brow theory is that it rewards the hard work that goes into the compilation of the facts.
5.3.3 The Feist Case.
The use of the sweat of the brow theory to afford copyright protection for factual compilations was thoroughly rejected in a U.S. Supreme Court case, Feist Publications v. Rural Telephone Service Co. 111 S.Ct. 1282 (1991). This case involved an action for copyright infringement by a local telephone company (Rural) on the use of its telephone white pages listing by a publishing company (Feist) specializing in regional telephone book listings. After being unable to license Rural's white pages listing, Feist used the Rural listings along with other factual information to create a different white pages listing. However, of a total of 46,878, 1,309 of Feist's entries were identical to those of Rural. In ruling in favor of Rural, the Court in Feist rejected the sweat of the brow theory on a number of different bases. As the Court observed:
"This is a straightforward application of the originality requirement. Facts are never original, so the compilation author can claim originality, if at all, only in the way the facts are presented. To that end, the statute dictates the principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection." (Feist at p. 1294) (emphasis added).
Many commentators have interpreted Feist to propose that it effectively precludes copyright protection for maps because those works are merely compilations of fact which do not lend themselves to original expression. Again, this is a notion based on a mis-perception of what a map is and is not. The following section seeks to clarify what maps and GIS/LIS data are.
5.3.4 What Are Maps?
Maps are mere graphic representations of physical and other features of some one, two, or three dimensional objects. (Maps are not limited to earth bound features, they may be planetary, interplanetary or even, theoretically, multi-dimensional). The typical concept of a map involves some earth related features. (see also, Wolf, 1992). Usually maps are associated with physical features, but they may also depict administrative information and socio-economic data. Map information, by necessity, is a scaled down, generalized version of the features that are expressed. Unless there is a 1 to 1 size relationship between the map and earth, some interpretation is required. Even most large scale maps rarely have more than a 1 to 600 (1 inch equals 50 feet) size relationship and many maps, such as highway maps, have a 1 to 1,000,000 size relationship. For example a highway map cannot depict each change in the direction of a roadway, however slight. To be useful, most highway maps cannot illustrate roadway or right-of-way width, even though those physical features may be hundreds of feet wide. Notwithstanding, road type (e.g., two-lane or four lane; interstate or state highway) may be depicted graphically by line structure or color. That is the essence of cartography, the creation of a usable expression of reality. This can include graphic representation, scale, cartographic offset or generalization and the selection of features to be expressed. In the case of maps of the earth, the imagination of cartography is further complicated by the projection of a curvilinear three dimensional surface onto a flat rectangular map. While obviously this paper cannot fully elaborate on all aspects of cartography, it is clear that it is a graphic and pictorial art of substantial and varied interpretation and expression. No matter how geometrically correct or positionally accurate a map may be, it is not a fact, it is but one of many possible renditions of reality.
5.3.5 What are GIS/LIS Data?
GIS/LIS data are computerized versions of maps that have added information, functionality, and complexity. These data and the technology supporting them have four major functional characteristics; graphic representation, mapping with attributes and intelligence, data integration by location, and spatial analysis. These characteristics offer further opportunity for original expression. The following describes these functionalities and their means to secure originality:
a. Graphic Representation. This is the automated form of maps, i.e., the depiction of various features in both hard and soft-copy forms. This is cartography, including artistic expression, on computer screens and in print-outs. This functionality provides ample opportunity for originality as a pictorial or graphic work, including the selection, arrangement and graphic expression in color, shape and structure.
b. Mapping with Attributes and Intelligence. A major functional difference between maps and GIS/LIS is the capacity to build into and behind the map additional tabular or textual information describing the features graphically displayed on a map. For example, a parcel map may have data behind it that includes owner name, address, assessment information, whether property taxes have been paid, whether part of the lot is in a wetland and, if so, what kind. To work effectively, a different kind of expression is embodied in the map, namely a data model that comprehends each data element and a data structure that supports query and retrieval of information. These mechanisms provide wide variation in the selection and arrangement of information.
c. Data Integration by Location. A major functionality of GIS/LIS data and technology is the ability to integrate information from a variety of sources so that information can be combined, compared and analyzed. While this functionality, by itself, is not likely to be subject to protection, it is very much dependent on the data model and the data structure to be effective. Again, the data model and the data structure may be characterized as an additional means of expression and creativity in the assembly of GIS/LIS data.
d. Spatial Data Analysis. Spatial data analysis is another powerful functional capacity of this data and the technology. The analytical capabilities use textual and tabular data embedded in the map information to support modeling that explains past events or predicts the future. The analytic component of the data allows for a multitude of possible representations of information depending on the inquiry or analysis performed. These are embedded expressions that are graphic, pictorial, numerical, and literary. These embedded expressions require careful selection, arrangement, and, hence, creativity.
5.3.6 Copyright for GIS/LIS after Feist.
While Feist dispensed with the sweat of the brow theory and reinforced the merger doctrine, this author submits that copyright protection for map and GIS/LIS data is not precluded by Feist. In fact, a careful reading of Feist, in this author's opinion, strengthens the argument in favor of protection of cartographic or map protection, including GIS/LIS. The Feist Court frames the inquiry into factual compilations as one of originality. In that context, the Court remarked:
". . . the originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement independently (i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity. Presumably, the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually non-existent. (Feist, at 1294) (emphasis added).
Given what cartography and GIS/LIS require, there is more than ample opportunity for a minimal level of creativity. In an enlightening analysis, David Wolf (1992) described why courts, erroneously, have treated maps as "directories", like the white page listing in Feist. This traces to an over-dependence on the sweat of the brow theory and other closely related legal constructs to substitute for originality because of the confusion between maps as facts and as a pictorial representation of reality. In his article, Wolf seems to call for a more collected judicial interpretation of the originality of maps. This change of interpretation has begun.
In a recent case, Mason v. Montgomery Data, Inc., 967 F. 2d 135 (5th Cir. 1992), the Court of Appeals for the Fifth Circuit (which decided the Kern River case) interpreted Feist to support copyright protection for maps. The plaintiff in this case conducted legal and survey research to draw parcel maps on U.S. Geological Survey maps. The Mason Court acknowledged the creativity and, hence, originality, in the plaintiffs selection and arrangement of information, including reconciliation of conflicting information. The Mason Court, quoting Wolf, observed that since it is the pictorial or graphic form of expression in maps that are protected, not the ideas underlying them, maps are distinguishable from other non-pictorial fact compilation for which the merger doctrine more appropriately applies. (Mason, at 142). The Mason Court made a factual distinction between that case and Kern River.
6. CONCLUSION
The statutes and the case law, including Feist and Mason, appear to support the idea that state and local governments can assert and defend copyright protection in public GIS/LIS data. Moreover, there are a number of compelling reasons why state and local governments may want to pursue copyright of public GIS/LIS data. Whether these techniques are good public policy is another question. To be good policy, this author submits that, at a minimum level, the following safeguards are observed:
6.1 Prohibit Exclusive Licensing Arrangements.
Exclusive licensing arrangements for one private or commercial interest creates unnecessary monopoly power in that firm. For example, if the public agency seeks to avoid the cost of providing value added services, an exclusive licensing arrangement will confer a monopoly pricing premium with that one firm. That kind of arrangement does not serve the public interest. Moreover, it is a relatively simple matter to allow private agencies to compete with one another utilizing non-exclusive licensing agreements for public information.
6.2 Provide Non-Exclusive Access to Public Information.
This safeguard suggests, simply, that open records laws must be observed, irrespective of any licensing arrangements. All citizens must have access to the means of public decision making. This includes providing open access to information that is used by government, but that may have been enhanced by a private firm under a licensing agreement.
6.3 Unlimited Personal Use.
A closely related notion to non-exclusive access is that individuals must be permitted to have unlimited personal use of public information. Without licensing arrangements that allow for unlimited personal use of information, the public truly does not have access to public records.
6.4 Privacy Must be Observed.
Licensing agreements must be structured so that personally identifiable information is not revealed in the course of distribution and redistribution. Each licensee must be held responsible and accountable for violation of privacy laws and the revelation of personal information.
6.5 Encourage Access to Public Information.
Even if agencies choose to copyright and license information, provision for access to information must be encouraged. This includes making the data and the technology available and easy to use at public access terminals, libraries and schools.
In the final analysis, efficient, effective, and responsive government should be the aspiration of public agencies and citizens. In the information age, these challenges take on new and increasingly complex dimensions. Ultimately, these are challenges that must be confronted.
7. ACKNOWLEDGMENTS
The views expressed in this paper are solely those of the author and not necessarily those of the Wisconsin Land Information Board or the State of Wisconsin. The author wishes to thank Georgia Hopf and Kristine Kuhlman for their editorial comment and review of this paper. This paper was inspired in part by the Wisconsin DNR GIS Datasharing Policy, September 1993. This policy utilizes copyright and licensing as a means to restrict redistribution of data and to recoup costs above marginal costs. This policy was conceived and moved forward by Paul Tessar, Wisconsin Department of Natural Resources Geographic Services Section Chief. Mr. Tessar's work was part of the inspiration of this author to conduct the research and write this paper. The author wishes to thank Mr. Tessar for his enlightened contributions to this field.
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Epstein, Earl F., 1991, In My Opinion, URISA Journal, Vol. 3, No. 1, Page 2, 1991.
Feist Publications v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991).
Kern River Gas Trans. Co. v. Coastal Corp., 899 F.2d 1458, (5th Cir. 1990).
Kidwell, John A., Open Records Laws and Copyright, Wisc. L. Rev. pg. 1021, Sept.-Oct. 1989.
Mason v. Montgomery Data, Inc., 967 F. 2d 135 (5th Cir. 1992).
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National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34 (N.D. Ill. 1980), affd. 692 F. 2d 478 (7th Cir. 1982), cert. denied, 464 U.S. 814 (1983).
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Tessar, Paul, et. al. Wisconsin DNR GIS Datasharing Policy, September 1993.
U.S. Constitution, Article I, Section 8, Clause 8.
Wolf, David B., Is There Any Copyright Protection For Maps After Feist?, 39 J. Copyright Soc'y, USA 224, 225:226 (1992).