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Information about Copyright and Intellectual Property Rights – GIS

Intellectual property is the resulting creation that springs from one’s intellect or mind to which one can claim ownership rights in said creation. Most jurisdictions provided for some type of legal or statutory regime in order to protect the author or inventor’s interests in the intellectual property. Intellectual property rights (IPR) are said to be composed of a “bundle of rights” consisting of patents, trademarks, trade secrets, know-how, and copyright. This entry focuses on copyright law and related IPR.

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The Origins of Copyright

Interest in protecting an author’s literary property has grown exponentially ever since Gutenberg invented the moveable type printing press in 1440. Though guilds trace their origins back to 1357, the first recorded privilegii (privileges) appeared in Venice, Italy, in 1469, as an exclusive privilege to conduct all printing in Venice for 5 years. Then, in 1486, the first known “copyright” was issued in Venice, giving the author the right to exercise exclusive control over the printed work. As the printing press technology was transferred across the European continent, royalty and governments became concerned with seditious works that were coming from these presses.

In 1557, the English Crown was concerned enough to charter the Stationers’ Company, whose function it was to establish a register in which it recorded the literary works for which its members had a monopoly on copying rights or privileges. Even though the law was actually a mechanism for censorship and trade regulation, it was not entirely successful because of the growing number of hidden presses. Eventually, that law was replaced by the Licensing Act of 1662, which, like its predecessor law, was intended to protect the church and state from heretical and seditious literature. Then, in 1710, the Statute of Anne was enacted by the English Parliament, ushering in the first true era of copyright law that protected the ownership
interests of authors.

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None of these statutory protection mechanisms enacted in England was lost on the American colonies, as each state enacted its own version of a copyright law. One of the earliest cases was Sayre v. Moore, 1 East 361 (1785), which was a claim related to pirated sea charts.

In 1787, the framers of the U.S. Constitution conferred upon Congress under “Article I, Section 8, Clause 8; Patents and Copyrights” the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Congress exercised that power and enacted the first federal copyright legislation in 1790, which specifically mentioned “maps and charts” before “book.” And for some 216 years since, Congress has maintained a statutory system for the registration and protection of copyrighted materials, which is codified in Title 17 of the U.S. Code (The Copyright Act of 1976, 17 U.S.C. §101 et seq.).

Copyright and GIS
Pursuant to the Copyright Act §102(a), “Subject Matter of Copyright,” in general, it states, “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known 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 relevant to GIS databases and maps are literary works and pictorial, graphic, and sculptural works. As set forth in §102(b), “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” This is referred to as the idea expression dichotomy, whereby patents protect the underlying “idea” and copyrights protect the “expression of the idea.” If an author is able to create an original work with a modicum of creativity, then that author is accorded certain exclusive rights in the copyrighted work as set forth in §106 of the Copyright Act.

Generally, GIS databases and maps are considered fact-based works for which copyright protection is relatively “thin” in comparison with fictional works. This public policy position is based on the idea that no one is given a monopoly in the facts. As such, §103(a) indicates that the subject matter of copyright does include compilations, which includes GIS databases
and maps. The seminal case in this area is Feist Publications, Inc., v. Rural Tel. Service Co., 499 U.S. 340 (1991), in which Justice O’Connor stated,

It is this bedrock principle of copyright that mandates the law’s seemingly disparate treatment of facts and factual compilations. No one may claim originality as to facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. To borrow from Burrow-Giles, one who discovers a fact is not its “maker” or “originator.” 111 U.S., at 58. “The discoverer merely finds and records.” Nimmer 2.03[E]. Census-takers, for example, do not “create” the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them.

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While facts, in and of themselves, are not copyrightable, the “order, arrangement, and selection” of those facts may be copyrightable as a compilation. The U.S. Supreme Court also used the Feist case to settle a split of legal authority in the various circuits and to clarify that the U.S. copyright law does not recognize the concept of “sweat of the brow.” One of the best examples for showing the originality, creativity, and creation of a copyrightable compilation for maps is the case of Hodge E. Mason and Hodge Mason Maps, Inc., v. Montgomery Data, Inc., 967 F.2d 135 (5th Cir. 1992).

Two of the most often misinterpreted doctrines in copyright law are the “Public Domain” and “Fair Use” doctrines, respectively, and both can become traps for the unwary. Under §105, “Subject Matter of Copyright: United States Government works,” the Copyright Act states, “Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.” First, this doctrine tends to be very U.S.-centric, in that other governments around the world do not necessarily follow this doctrine. Second, while the U.S. federal government is precluded from directly holding a U.S. copyright in works created at taxpayer expense and, as such, these are placed in the public domain, there is nothing in the language that precludes either state or local governments from claiming copyright in their works. This has become increasingly important as state and local governments have woken up to the value of GIS databases. §107 of the Copyright Act is a limitation on the Exclusive Rights granted in §106; it is known as the “Fair Use Doctrine” and can be an affirmative defense against a claim of infringement. The Fair Use Doctrine is composed of a four-factor test that has to be balanced by the court.

Finally, the duration of copyright is set forth under §302 of the Copyright Act. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

Moral Rights

While copyright is an economic right to exploit the work for commercial gain, moral rights are concerned with providing the author with (a) the right of attribution and (b) the right to the integrity of the work (i.e., it cannot be distorted or otherwise mutilated). Some jurisdictions do not allow for the waiver of moral rights, as those jurisdictions believe that such rights
are inalienable to the author. To become a signatory to the Berne Convention in 1989, the United States enacted the Visual Artists Rights Act of 1990, as codified in §106A of the Copyright Act, but it is a limited recognition of moral rights that applies only to works of visual art. Thus, moral rights would come into play only for pictorial or graphic map representations (e.g., Jasper John’s painting “Map”).

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Sui Generis

The term sui generis is a Latin term whose literal translation means “of its own kind or genus” or “unique in its characteristics.” This legal concept was applied by the European Union (EU) countries in reaction to the U.S. Feist decision as a means of protecting “property” right in the time and labor of a data compiler. Essentially, the EU Database Directive (Council Directive No. 96/9/EC of 11 March 1996) codifies the “Sweat of the Brow” doctrine in European copyright law in order to provide greater protection to collections of information and databases. Database rights last for 15 years under this regime but can e extended if the database is updated. Database rights prevent copying substantial parts of a database (including frequent extraction of insubstantial parts).

Misappropriation

In instances where statutory protection has not provided adequate IPR coverage, some owners have had to revert back to common-law principles and frame the cause of action as a “misappropriation” of property. Those owners cite as authority the International News Service v. Associated Press, 39 S.Ct. 68 (1918), as one of the early cases in this area supporting such a property right. In the case of G. S. Rasmussen & Associates, Inc., v. Kalitta Flying Service, Inc., 958 F.2d 896 (9th Cir. 1992), the plaintiff/database owner was able to rely on Cal. Civ. Code §654 and §655.

Peter C. Schreiber

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