Front Cover
 Title Page
 Table of Contents
 Legal protection of databases
 Computer software protection
 Other legal issues
 Licenses and licensing
 Liability issues
 Legal issues in the context of...
 Public sector information
 Abbreviated recommended guidelines...

Group Title: Legal issues in the use of geospatial data and tools for agriculture and natural resource management : a primer
Title: Legal issues in the use of geospatial data and tools for agriculture and natural resource management
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00077496/00001
 Material Information
Title: Legal issues in the use of geospatial data and tools for agriculture and natural resource management a primer
Physical Description: 43 p. : ill., map ; 28 cm.
Language: English
Creator: Longhorn, Roger A
Henson-Apollonio, Victoria
White, Jeffrey W
International Maize and Wheat Improvement Center
Publisher: CIMMYT
Place of Publication: Mexico D.F
Publication Date: c2002
Subject: Agricultural informatics -- Law and legislation   ( lcsh )
Geographic information systems -- Law and legislation   ( lcsh )
Natural resources -- Management -- Law and legislation   ( lcsh )
Genre: Online resources   ( local )
Online resources.   ( local )
bibliography   ( marcgt )
non-fiction   ( marcgt )
Bibliography: Includes bibliographical references (p. 41-42).
Additional Physical Form: Also issued online.
Statement of Responsibility: Roger A. Longhorn, Victoria Henson-Apollonio, Jeffrey W. White.
Funding: Electronic resources created as part of a prototype UF Institutional Repository and Faculty Papers project by the University of Florida.
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Resource Identifier: oclc - 52182991
lccn - 2003480061
isbn - 9706480943


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Table of Contents
    Front Cover
        Front cover
    Title Page
        Page i
        Page ii
    Table of Contents
        Page iii
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
    Legal protection of databases
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
        Page 23
        Page 24
    Computer software protection
        Page 25
        Page 26
    Other legal issues
        Page 27
        Page 28
        Page 29
    Licenses and licensing
        Page 30
        Page 31
        Page 32
        Page 33
    Liability issues
        Page 34
        Page 35
    Legal issues in the context of projects
        Page 36
        Page 37
        Page 38
    Public sector information
        Page 39
        Page 40
        Page 41
        Page 42
    Abbreviated recommended guidelines for managing spatial information IP
        Page 43
Full Text

Legal Issues in the Use of

Geospatial Data and Tools

for Agriculture and Natural

Resource Management

A Primer

Roger A. Longhorn, Victoria Henson-Apollonio, and Jeffrey W. White

Sponsored by the:
Rockefeller Foundation
CGIAR Consortium for Spatial Information (CSI)
CGIAR Central Advisory Service on Intellectual Property (CG-CAS)
International Maize and Wheat Improvement Center (CIMMYT)


Legal Issues in the Use of

Geospatial Data and Tools

for Agriculture and Natural

Resource Management

A Primer

Roger A. Longhorn, Director, Information Dynamics Group (UK) Ltd,
Director, EC Projects Office, 83 Zeedijk, B-8660 De Panne, Belgium;
E-mail: rallux@attglobal.net
Victoria Henson-Apollonio, Manager, CGIAR Central Advisory Service
on Intellectual Property (CAS), P.O. Box 93375, 2509 AJ The Hague,
the Netherlands; E-mail: v.henson-apollonio@cgiar.org
Jeffrey W. White, Head, GIS and Modeling Lab, CIMMYT, Apdo. Postal
6-641, 06600 Mexico DF, Mexico, E-mail: j.white@cgiar.org

Sponsored by the:
Rockefeller Foundation
CGIAR Consortium for Spatial Information (CSI)
CGIAR Central Advisory Service on Intellectual Property (CG-CAS)
International Maize and Wheat Improvement Center (CIMMYT)


The International Maize and Wheat Improvement Center (CIMMYT; www.cimmyt.org) is an internationally
funded, nonprofit, scientific research and training organization. Headquartered in Mexico, CIMMYT works with
agricultural research institutions worldwide to improve the productivity, profitability, and sustainability of maize
and wheat systems for poor farmers in developing countries. It is one of 16 food and environmental organizations
known as the Future Harvest Centers. Located around the world, the Future Harvest (www.futureharvest.ora)
Centers conduct research in partnership with farmers, scientists, and policymakers to help alleviate poverty and
increase food security while protecting natural resources. The centers are supported by the Consultative Group on
International Agricultural Research (CGIAR) (www.cgiar.org), whose members include nearly 60 countries, private
foundations, and regional and international organizations. Financial support for CIMMYT's research agenda also
comes from many other sources, including foundations, development banks, and public and private agencies.

The CGIAR Consortium for Spatial Information (CSI; http://www.spatial-info.org) evolved from a collaboration
among CGIAR centers and GRID-Arendal with the objective of promoting effective use of GIS in international
agricultural development. CSI creates mechanisms for standardizing data sets within the CGIAR, sharing
methodologies and solutions, and facilitating inter-center collaboration. CSI serves as a platform for joint efforts in
GIS-based agricultural research at global, regional, and local levels. Core membership includes 10 institutions.

The CGIAR Central Advisory Service (CAS) on Intellectual Property (http://www.cgiar.org/isnar/cas/) was
established by the CGIAR in 1999 to facilitate the exchange of experiences and knowledge among the CGIAR
centers and to provide expert assistance on intellectual property matters.

CIMMYT-CGIAR 2002. All rights reserved. The opinions expressed in this publication are the sole responsibility of
the authors. The designations employed in the presentation of materials in this publication do not imply the
expression of any opinion whatsoever on the part of CIMMYT or its contributory organizations concerning the
legal status of any country, territory, city, or area, or of its authorities, or concerning the delimitation of its
frontiers or boundaries. CIMMYT encourages fair use of this material. Proper citation is requested.

Correct citation: Longhorn, R.A., V Henson-Apollonio, and J.W. White. 2002. Legal Issues in the Use of
Geospatial Data and Tools for Agriculture and Natural Resource Management: A Primer. Mexico, D.F.:
International Maize and Wheat Improvement Center (CIMMYT).

Abstract: This paper reviews concepts of Intellectual Property and other legal issues relating to Geographic
Information Systems (GIS) used in agriculture and natural resource management. Topics covered include copyright,
patents, legal protection of databases, confidentiality of information, data privacy, licensing, and liability. The
intent is to provide an introductory primer that can help guide day-to-day activities of people involved in
agriculture and natural resource management research.

ISBN: 970-648-094-3
AGROVOC descriptors: Natural resources; Agricultural resources; Geographical information systems; Patents;
Legal rights; Agricultural Research; Databases
AGRIS category codes: P01 Nature Conservation and Land ResourcesD50 Legislation
Dewey decimal classification: 333.72

Printed in Mexico.


Forew ord ................................... .................... .................................................... 1
P re fa c e ....................................................... . ..... ...... 2
Chapter 1. Introduction ............................ ..................... .............. 4
Overview of the Paper ........... ... ........... ........ ......... 4
Some Definitions ............ ................. ................... 5
M ain IP Protection M mechanisms ........................................ .. ... ............... 6
Some Additional Legal Issues for Geospatial Data and Tools ....................................... 9
W hy Researchers Should Care about IP ............... .... ......................... ............. 10
Chapter 2. Copyright ..... ......... ............................. 13
In tro d u ctio n ..................................... ............... ...... 13
C copyright and Spatial Inform action .............................................. ........... ..... 14
Copyright and Fair Use and Fair Practice ...................................... ........ ......... ... 15
Chapter 3. Legal Protection of Databases ......................... ....... ........................ 16
Copyright Protection for Databases ........................ ...... ................................ 16
EU Legal Protection of Databases Directive (1996) .................................. ............... 16
Protecting Databases by Other Means ................ ... ....... .................... 18
Examples of Databases using Different Protection Mechanisms.............................. 19
C h a p te r 4 Pate n ts ........................................................................................... 2 0
Patent Protection for Methods and Processes ............... .............................. ......... 21
Exam ples of Patents Related to Spatial Analysis ................................. ........ ....... 21
Chapter 5. Computer Software Protection ............... .... ......................... ............ 25
Com puter Softw are and Copyright ......... ........................................... ......... .. .... 25
Com puter Softw are and Patents ...... ........................... ........ ....... 25
Protecting Software via Copyright versus Patent .............. .... ......... ........ 26
Chapter 6. O their Legal Issues ................................ ................. ............ 27
Protecting Confidentiality in the Inform ation Age .................................... ................ 27
Personal Privacy (Data Protection) ...... ........................................ ......... ... ..... .. 29
Chapter 7. Licenses and Licensing ..... ........ .......................................... .............. 30
Typical Licenses for Software and Data Use ................ ......................... ............. 30
Copyleft Licenses and the GNU Open Source Tradition ............................ ............... 31
Licensing Summary ..... ......... ............................. 33
Chapter 8. Liability Issues .. ....................................... ........ ........ 34
Chapter 9. Legal Issues in the Context of Projects ................................. ........ ....... 36
Project work plans, memoranda of understanding, or contracts .................................. 36
Projects in the international arena ...................... ................. .............. 37
Chapter 10. Public Sector Inform ation ........ ......................................... ............... 39
References ................. ..................................... ........................... 4 1
Annex Abbreviated Recommended Guidelines for Managing Spatial Information IP ....... 43


Information is a classic public good. Use of information by one person does not reduce
applications by others within an increasingly globalized society; in fact, broad based access and
analysis improves knowledge and understanding and thereby contributes to improvements in
overall social welfare. The public sector, rather than the private sector, thus principally invests in
the collection of primary information, whether censuses, remote sensed data, or welfare
monitoring surveys. This information resides mostly, but not necessarily, in the public domain.
However, the public sector has under-invested in the bridge between the production of data and
the analysis of that information, most of which is also supported in public sector institutions. This
under-investment has created an institutional space for private sector initiative in the collation
and generation of databases, data products, analytical software, and front-end interrogation
software. While providing better connectivity between the supply and demand for information,
the increasing application of intellectual property rights (IPR) to these products has created
uncertainties about the ownership of data, the potential for limitations on access to data, and
increasing reservations by public sector institutions about unlimited distribution of data.

The increasing demand for multinational or global data sets, the expanding coverage of
trade agreements on intellectual property, particularly TRIPS, and the rapid progress in
communication and database technology, with often no clear lines between software and
information, have all served to increase the need for improved clarity on application of IPR. This
applies to producers, users, and funders of data and information. The Rockefeller Foundation has
been active for some time in the area of patent law as applied to agricultural biotechnology, to
ensure application of relevant research within the developing world. The conference and this
report on legal issues applied to the area of agricultural and environmental information by the
CGIAR Consortium on Spatial Information, CIMMYT, and CAS extends these issues into the area
of international information flows and provides a basis for a first assessment and awareness-
building in this key area. The global agricultural research and environmental change community
relies on the free flow of information. However, to guarantee this flow into the future this
research community must work within the expanding scope of IPR, where data transfers must be
accompanied by licenses for usage. These requirements extend even more importantly to the
funders of data collection and product development to ensure that IP does not encumber the
free flow of information in which they invested.

The CGIAR, CIMMYT, and CAS have provided a valuable first step in assessing IPR as applied
to the collection, collation, and exchange of geospatial information. These applications will
certainly evolve and have the potential for becoming even more restrictive. It is incumbent on the
international agricultural research community to understand the application of IPR in their work
and to work within this changing environment to maintain an open and vibrant research

John K. Lynam, Associate Director, Food Security Program, The Rockefeller Foundation


The world of agriculture and natural resource management relies
increasingly on research and development approaches that emphasize
integrative analyses. Multiple disciplines and sources of information employed
with software-based tools such as geographic information systems (GIS),
image analysis, and simulation modeling are central to such integrative
exercises. Analyses using these tools are well known for their appetites for
data, often obliging users to assemble data from diverse sources. In this
process, questions regarding data ownership, data quality, and reliability of
products often arise.

In activities of the GIS and Modeling Laboratory at CIMMYT, one of the
authors (Jeff White) noted an increasing expectation among partner
institutions that data exchanges would be accompanied by transfer
agreements. Similarly, in collaborative efforts and contracted work, questions
arose concerning ownership of software code and allowed use of commercial
tools. In discussing these concerns, the opportunity arose for the CGIAR's then
newly-founded Central Advisory Service to assist CIMMYT in reviewing IP
issues relating to use of spatial information. Recognizing that such a review
might interest a broad audience of researchers, development specialists and
managers, the decision was made to conduct the review under the aegis of
the CGIAR's Consortium for Spatial Information.

A draft of the manuscript was used as background material for a one-day
workshop during the meeting "Geospatial Applications to Support Sustainable
International Agriculture" (GASSIA) held at the USGS EROS Data Center,
South Dakota, USA. Besides questions and comments from an enthusiastic
and interested group of over 40 participants, five experts provided insights on
specific topics:
* George Cho (Univ. Canberra, Australia). Lawyer, professor and author of
the book Geographic Information Systems and the Law (1998; John Wiley
& Sons).
Laila Aslesen (National Mapping Service, Norway). Lawyer and coordinator
of expert panel for 40 European mapping agencies (Eurogeographics).
Sheree Westell (law firm of Taylor Joynson Garrett, UK). Attorney
specializing in information technologies.
Santiago Borrero (Director General of Inst. Colombiano "Augustin
Codazzi," Colombia). Geographer and chair of GSDI Steering Committee.
Paul Uhlir (Director, International S&T Information Programs, US National
Academies, USA). Lawyer and expert on access to publicly-funded

2 -

The workshop thus provided a valuable opportunity to assess
concerns and levels of understanding among potential readers as
well as to benefit from the input of the expert panel. The value of
these inputs was reflected in our decision to reduce the emphasis on
liability and on policies for protection and diffusion of data held or
produced by governments.

This process confirmed our suspicion that the first draft
contained more detail than was conducive to a readable primer.
Much of the information that was removed will be made available
on the CAS web site1. Furthermore, we are considering the
possibility of developing training modules that deal with specific
topics in more depth (e.g., on lab record keeping or developing and
implementing contracts for data set or software development).

The authors express their gratitude to the Rockefeller
Foundation, especially John Lynam, for supporting this initial
investigation and the resulting publication. We also thank the five
experts who participated in the GASSIA workshop for their
enthusiastic and knowledgeable input and to the organizers of
GASSIA for their assistance. Shawn Sullivan (CIMMYT's Intellectual
Property Manager and Counsel) provided especially valuable input on
legal concepts.

In closing, we emphasize that this primer is an awareness
building tool, not a source of legal advice. Readers will have to use
their judgment to decide when a particular issue can be resolved
through common sense and when legal advice should be sought.

Roger A. Longhorn, Victoria Henson-Apollonio, and Jeffrey W. White

SThis material will be available on the CAS web site after 1 September 2002.

Chapter 1. Introduction

Overview of the Paper

Spatial information, geographic information,
geodata whatever your favorite term is first and
foremost "information." As information is
exchanged among individuals or institutions,
questions arise relating to ownership, authorized
use, future use, and implied quality:
* If a laboratory purchases a set of point data to
create an interpolated map, does the seller
retain rights to the mapped data?
How can a large database, perhaps representing
25 years of labor, be made widely accessible
without forfeiting legal control?
Does the phrase "for non-commercial use only"
have any legal meaning?
Can a novel software algorithm be protected,
potentially to generate royalties?
As a user of "open source" data or software,
what are your rights and responsibilities?
If maps or data sets contain substantial errors,
are the providers legally accountable (liable) for
damage or losses relating to those errors?

This paper reviews concepts of Intellectual
Property (IP) and other legal issues relating to
Geographic Information Systems (GIS) used in
agriculture and natural resource management.
Topics covered include copyright, patents, legal
protection of databases, confidentiality of
information, data privacy, licensing, and liability.
The intent is to provide an introductory primer that
can help guide day-to-day activities of people
involved in agriculture and natural resource
management research.

The field of legal issues in GIS is evolving
rapidly, and various international agreements and
national laws are under discussion that will affect

use of spatial data and software. Key issues relate
to respecting the rights of owners while avoiding
barriers to the flow of data and processed
information needed for research in agriculture
and natural resource management.

In reading this document, initial reactions
may be "why worry so much?" or "this is all too
complex, so I'll just try ignoring it." Although the
legal issues surrounding GIS are complex and
represent moving targets in the evolving worlds
of information technology and international
trade, we would argue that sound management
of IP is doable and core to good science. Sources
of data and tools should always be tracked in any
well-run project. Rights of individuals or
institutions, particularly concerning creative
efforts, should be respected. No one wants to see
research activities blocked due to disagreements
that might have been avoided through open
discussion and a prudent approach to tracking
data sources or software licenses.

Our focus is largely on legal issues, but the
reader should recall that laws are meant to
express the moral or political norms of societies.
Ideally, researchers should base decisions or
actions on what is correct from an ethical or
policy perspective and then find that these mirror
what is legally permissible. Most research parties
will agree upon basic moral principles; e.g., hard
work should be rewarded, and research should
be conducted with due care to avoid errors or
misleading results. Thus, reaching a consensus on
the use of IP should be straightforward. Of
course, situations arise where one may have the
legal right to use data or software, but the
political or moral consequences outweigh the
possible benefits from use.


Perhaps the most important message of this
primer is the need for clarity in understanding
how data or software IP protection may affect the
transfer of a product or collaboration. In most
situations, this understanding should be expressed
by a written agreement that is acceptable to all

Annex A presents a basic checklist for
managing the IP and related legal issues for
information and software tools needed or created
by project teams, especially with international
partners. The CGIAR-CAS web site offers readers
access to additional checklists and resource

This primer is not a substitute for legal advice.
Where specific licensing or contract issues arise,
readers are encouraged to consult legal experts.
Choose experts familiar with the topic and who
have experience with the relevant geographic
jurisdictions, as laws vary from nation to nation.

Some Definitions

Intellectual Property (IP). Intellectual
property (IP) is any product of human creative
activity in industry, science, or art. Intellectual
property rights (IPR) are granted by laws and cover
two main categories (WTO 2001):
1.Copyright and rights related to copyright,
which protect literary and artistic works.
2.Industrial property, including patents, industrial
designs and trade secrets, which are protected
to foster innovation and the design and
creation of new technology, and trademarks
and geographical designations (e.g.,
'Champagne'2), protected for economic

Public Domain versus Public Sector Data
and Public Disclosure. The term "public
domain" is often used to indicate "free" or
"available gratis," but in a legal context the term
implies that that no property rights or restrictions
are associated with the product. If copyright
existed, it must be explicitly disclaimed.
Copyrighted material and patented inventions
also enter the public domain when the protection
expires or is revoked through legislation. Public
domain software is software that is not
copyrighted. Note that software originally in the
public domain can be modified, giving the person
who did the modification IP rights for the
modification. Similarly, developers of new data
products derived from public domain material are
often granted copyrights for the products. For
neither software nor data, however, do the
modifications affect the IP status of the original

Because public domain information is
normally available for use at no or a low cost,
there is little incentive to commercialize public
domain data per se. However, such data can be
processed or re-formatted and the resulting
products marketed. This is the basis for businesses
that add new value to public domain data and
then sell the result, an approach that has seen
rapid growth in the US information market for a
number of years.

"Public sector data" are data produced by a
public sector body. They may be in the public
domain or strongly protected, depending on
governmental and institutional policies. The
definition of what types of organizations are in
the public sector varies with country and time,
since agencies take on new roles due to policy
changes and reorganization.

The named assigned to sparkling wines from the Champagne region of northern France.

Public disclosure is the act of permitting public
access to information. Public disclosure does not
remove IPR, but disclosure reduces the possibility of
subsequently obtaining a patent. A window of as
long as one year after disclosure may be left open
for patenting, in jurisdictions with grace periods
such as the USA.

Open Source and Copyleft. The term "open
source" refers to the source code of computer
software, whether an operating system, language,
or application and implies that anyone can access
the source code. This does not mean that the code
is available at no cost or that the code is in the
public domain. The open source concept also
applies to content, such as documentation, data,
and books.3 Most open source material is made
available under a license, such as the GNU General
Public License4 or variations5.

Recipients of open source materials have rights
similar to the originator, but the licenses prevent
the recipient from restricting future use of the
materials. A key clause in such licenses gives the
recipient the "legal permission to copy, distribute
and/or modify" the material, be it software or data.
Most open source licenses for software prohibit any
recipient from applying for a patent on the
software unless such patent is licensed for
everyone's unrestricted use.

Open source licenses implement "copyleft,"
which is the author's formal rejection of certain
rights that exist automatically under copyright.
Claiming that information or software is copyleft is
not the same as putting it in the public domain,
because authors still retain certain rights over
copyleft material, such as requiring
acknowledgment for its use.

Freeware, Free software and Shareware.
The term 'freeware' is commonly used for
software where redistribution but not
modification is permitted. The source code is
seldom provided. The user has "free license" to
use the software but does not own it.

According to the Free Software Foundation
(2002), 'free software' "...comes with permission
for anyone to use, copy, and distribute (it), either
verbatim or with modifications, either gratis or for
a fee. In particular, this means that source code
must be available."6

In the case of "shareware," people are free to
redistribute copies with the stipulation that
anyone who continues to use a copy must pay a
license fee.

Main IP Protection

Not all forms of protection are of equal
importance in the agricultural and environmental
development community, especially with regard
to spatial information. The most important are
copyright, protection of databases, patents, trade
secrets, and trademarks. Each of the topics is
introduced briefly and then discussed further in
subsequent chapters. Table 1 summarizes the
major mechanisms for protecting IP.

Copyright. Copyright gives certain rights to
creators of literary and artistic works, including
books, drawings, and paintings. The concept has
been extended to cover computer programs,
maps, imagery, and databases. The right to

See http://opencontent.org/opl.shtml and http://opencontent.org/openpub/ for examples of the Open Content License v.1.0
of July 1998 and the Open Publication License, v.1.0 of June 1999, respectively.
See http://www.gnu.org/licenses/gpl.txt for the latest version of the GNU General Public License. GNU is a recursive acronym
for "GNU's Not Unix'.'
See http://dsl.org/copleft/dsl.txt for the Design Science License developed by Michael Stutz in 1999.
See http://www.gnu.org/philosophy/free-sw.html for GNU's "free software" philosophy guidelines.

6 -

control use of a creative work is mainly economic,
although authors also have moral rights; e.g., the
right to claim authorship and to oppose changes to
a work that might harm the author's reputation. In
most national systems, moral rights remain with the
author, even if economic rights are reassigned. As
with other types of IPR, economic property rights
are often assigned to an employer, especially for
"works made for hire," a term that appears in some
national IP (copyright) legislation or that can be
included in contracts to avoid ambiguity regarding

Copyrights protect the form of expression of an
idea, concept, method or formula, and not the idea
itself. Copyrights are enforced by national laws,
which permit the owner of a work to initiate legal
action against persons or organizations that
contravene his/her rights (called infringement). To
enforce copyright laws, national agencies, such as
the customs authority, are often given empower to
assist IPR holders. National laws protecting

economic and moral rights of copyright owners
must conform to the terms of regional and
international treaties governing IP. New treaties or
amendments are being proposed to account for
changes in the nature of information and
technology. Many recent changes to copyright
principles involve "related rights," including rights
for the electronic version of a manuscript or a
database. One issue is whether strict enforcement
of copyright, which favors knowledge-rich societies,
may harm developing nations by interfering with
the flow of scientific information required for
sustainable development (Chapman 1998).

For people working with spatial information,
copyright is a primary means of protecting IP.
Scientists and educators can generally use
copyrighted material because of a "fair use"
exception in the United States and equivalent
exemptions in Europe, based on exceptions
permitted in the Berne Convention. However, fair
use does not permit large portions of copyrighted
material to be copied or transferred to third parties.

Table 1. Comparison of basic features of different mechanisms for protecting intellectual property.

Applicable to

Mechanism Data per se Databases Software Geographic coverage Comments

Copyright No Yes Yes Respected across Only protects form of expression, not
jurisdictions, ideas or data.

Patent No No Yes Requires application in Not all countries allow patents on
each country. algorithms.

Database Yes Yes No Only available in certain Concepts of fair use
protection countries, remain to be established.

Written Yes Yes Yes Terms used in licenses vary If well written, provides perhaps the
license with country (e.g., "work least risk of misunderstanding.
for hire" vs. "contract of/for Especially useful when dealing with
service"), agreements among diverse organizations.

"Shrinkwrap" Yes Yes Yes Uncertain Validity of such licenses is still bein
license tested in courts.

Trademark No No No Requires application in each Used only for names and logos.

Trade secret Yes Yes Yes Laws protecting secrets Requires that deliberate efforts be made
vary greatly to keep information or product secret.

Legal Protection of Databases. The Berne
Convention for the Protection of Literary and
Artistic Works (WIPO 2001 a), which provides for
copyright and related rights, does not
automatically allow copyright for a database.
There are provisions for "collections," such as
encyclopedias and anthologies, which "...by
reason of their selection and arrangement of their
contents, constitute intellectual creations..."
(Berne Convention, Article 2), and the individual
works in a collection may carry their own
copyrights. However, for databases the US
Supreme Court (in the Feist7 decision) and high
courts in Europe ruled that only databases whose
creation required an intellectual input can be
copyrighted. Databases produced only by "sweat
of the brow"-that is, with large amounts of
effort or money but without creativity-could not
be copyrighted.

Recognizing that such sweat-of-the-brow
databases form a significant economic and
scientific contribution, all countries in the
European Union now have separate database
protection laws (Hugenholtz 2001). Other
countries will probably enact similar protections,
but as discussed later, there is controversy over
whether such protection will overly restrict
effective use of databases for educational and
research purposes.

Patents, Petty Patents, Innovation Patents,
and Utility Models. Patents grant an inventor a
temporary monopoly to exploit an invention. This
is done with the expectation that society, as a
whole, will benefit if new inventions are publicly
disclosed, but that researchers or inventors require
a reward or stimulus for making their findings

publicly known. Thus, a patent is granted as a
state-sanctioned monopoly for a specified period,
typically 15 to 20 years. Two of the major
international treaties covering patents are:
1.The Paris Convention for the Protection of
Industrial Property, 1883-1979 (WIPO 2001 b).
2.The patent provisions within the Trade Related
Aspects of Intellectual Property (TRIPS)
Agreement, 1995 (WTO 1995).

The bases under which patent protection can
be sought for an invention generally include (Cho
Novelty, i.e., the invention must be new8;
Invention, i.e., the product must be the output
of an invention process;
Lack of obviousness since "obvious invention is
inevitably not novel";
Manner of new manufacture, i.e., the
innovation has not already been used, sold or
disclosed to the public; and
Demonstration of usefulness (utility), i.e., it
must be able to achieve the useful results
claimed in the patent application.

In some jurisdictions, patents may be granted
for business models and methods, including
algorithms embodied in software (which would
otherwise be protected only by copyright).

Petty patents, innovation patents, and utility
models offer exclusive but shorter protection for
technical inventions in several countries. These
rights are similar to patents but can be secured
more rapidly and cheaply. Legal protection usually
is less secure than for a patent, due to a lower
standard of search and examination and the

See http://www.bitlaw.com/source/cases/copyright/feist.html for a description of this case, where the court concluded that the
white pages of a telephone directory fail to meet the test of originality since they are simply a compilation of facts.
Regarding "patentable subject matter," definitions of what constitutes novelty and non-obviousness can vary widely among
national regulations. In the US, the courts interpret patent legislation and the interpretation can change over time as new cases
are brought before the courts. If an invention is already in the public domain, then any subsequent patent that might be granted
is invalid since it is not new, nor are certain types of inventions considered to be patentable in some jurisdictions, including
software, methods of programming, schemes, plans and business methods.


absence of a requirement for an inventive step for
the issuance of such protection. Utility models
"...must be capable of industrial application;" i.e.,
they can be made or used "...in any kind of
industry, including agriculture." An example is the
Australian innovation patent scheme.9

Trade Secrets and Confidential
Information. Confidential information, including
trade secrets, come under Article 39, Protection of
Undisclosed Information, in the WTO TRIPS
Agreement. To be considered confidential, the
information must be secret and have commercial
value because of this secrecy, and reasonable
steps must have been taken to keep it secret.
Enforcement of these rights is an important part
of TRIPS. In some countries (Mexico) trade secrets
must be recorded in writing to be protected.
National legislation often provides for criminal
penalties for disclosure or misappropriation of
trade secrets.

By relying solely on trade secrets to protect IP,
however, an inventor runs the risk that another
person will produce the same or a similar product,
potentially obtaining stronger IP protection (for
instance, through a patent). For users and creators
of spatial information or software, this risk may be

Trademarks. A trademark is any sign,
represented graphically, which is capable of
distinguishing goods or services of an
undertaking-typically an organization or
business. In the Paris Convention for the
Protection of Industrial Property, numerous articles
protect registered owners of trademarks, service
marks, and trade names, and ensure exclusive use
of such marks. Trademarks can be extremely
valuable, but it often requires large expenditures
of time and money to establish a link between the
mark and an undertaking. The period of

protection for a registered trademark typically is 7 to
10 years, and protection is usually renewable, subject
to payment of additional fees.

Use of someone else's registered trademark may
have serious consequences, even if done
inadvertently. The agricultural researcher's main
concern is to avoid inadvertent misuse of trademarks.
Before a product is named, trademark registries
should be consulted to ensure that the proposed
name does not infringe on an existing mark.

Other Forms of IP. Other types of intellectual
property covered by major treaties include industrial
designs, plant breeders' rights, geographical
indications that identify a good as originating in a
given place, and integrated circuit layout designs.
New types of property rights that cover such IP as
traditional knowledge may appear in the near future.
These protections are not considered further in this

Some Additional Legal Issues
for Geospatial Data and Tools

Liability Regarding Information and
Licenses. Anyone who creates, uses, or disseminates
spatial information and tools, or services based on
the data and tools, faces certain legal responsibilities.
Cho (1998) highlighted the following legal risks
relating to geodata and GIS:
* Failure to secure IP rights.
* Liability for infringement of IP rights, whether
intended or not, including failure to control
access to geodata or tools, resulting in illegal use
of the data or tools by others.
Failure to secure accountability for defective data
or GIS tools (which can also mean models,
methods, and services based on the data and

9 See http://www.ipaustralia.gov.au/patents/P_innvopat.htm for a full description of this new approach.

* Liability for breaching privacy or confidentiality
Legal uncertainties involved in contracting out
tasks (outsourcing) related to geodata
collection, processing, and dissemination,
whether by a government agency or for such
an agency or private enterprise.

Factors that can mitigate liability include how
much care was exercised in developing a product
or service, how much was charged, and whether
appropriate disclaimers were provided. Licenses
that provide such information are a key means of
limiting liability, but courts generally decide
against attempts to disclaim all liability.

Data Protection for Personal Privacy.
Coupling descriptive data to precise location data
is the corner stone of many types of spatial

analyses. But when locations are easily linked to
identities of individuals or farms, there is potential
for violating personal privacy. Illegal or unwarranted
use of personal information is a serious issue being
addressed by multinational legislation. Typical
requirements for using personal data are that the
data be obtained with informed consent and only
be held as long as required for the authorized use.

Why Researchers Should
Care about IP

An Example. To illustrate how readily IP and
related legal issues can permeate a project using
GIS, we consider a simple map of point locations,
district boundaries, major rivers, and annual
precipitation (the latter as an interpolated surface)
as shown in Figure 1.

Figure 1. Location of Rice Wheat Consortium research sites in north-central India and adjacent regions.


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The point data represent sites located with
global positioning system (GPS) units mainly
during farm monitoring tours conducted by the
Rice Wheat Consortium (RWC) of the CGIAR.10
The data were received by CIMMYT in
spreadsheets with different formats. In many
cases, site descriptions were completed by
reconciling the sites with information from tour
reports that were downloaded from the Internet.
The GIS technician also corrected obvious
positional errors. Some questions to consider:
* Who now owns the spatial data set? The
RWC or CIMMYT? Does the law allow for
shared ownership?
Several of the points are linked to farms
identified by the owner's name. What rights
do the farmers have in relation to the data

The Ganges and Indus Rivers were located
using data from the ESRI Data and Maps 1998.
The instructions are on the inside cover of the
CD-ROM set (with no formal licensing
agreement) and state: "The Windows Help file
(.hlp) on the CD-ROM also contains further
information about the data including appropriate
scales for display and redistribution rights. Please
check this information before redistributing any

On searching for "redistribution" and similar
terms in the Help file, no such information was
found for the database of major rivers.
* Can we safely conclude that the river data
may be redistributed?
Would it matter that CIMMYT only used a
small part of the dataset?

The annual precipitation surface was calculated
by CIMMYT from 12 layers of monthly totals
provided by a second party, who in turn, produced
the monthly data from long-term records held by
other parties.
Is the annual surface a sufficiently novel data
product that CIMMYT holds full IPR?
What IPR would another group have if they
repeated this operation and obtained identical
Does it affect the IPR of the calculated monthly
surfaces whether the interpolations were done
with an exact interpolator (which fits the surface
exactly through each observed point value) or an
inexact interpolator (which assumes that each
point value may have error and thus does not
provide an exact fit)?

The district boundaries were based largely on a
set of boundaries from Deichmann (1996), which
had no mention of copyright or licensed uses.
About 25 boundary lines were hand-edited to
accommodate recent changes in districting. The
updating was done by a consultant hired by
CIMMYT for general GIS support.
Are the district data sufficiently "new" to
constitute new IP?
Who would own such IP, CIMMYT or the

Finally, the map, as presented in this document,
was rendered as a Joint Pictures Expert Group (jpeg)
image file.
Does this simplified medium reduce conflicts
over IPR as compared, say, to displaying the map
through an Internet map server, where data
layers can be queried but not downloaded?

The RWC was established in 1994 as an Eco-regional Initiative of the Consultative Group on International
Agricultural Research (CGIAR), involving the National Agricultural Research Systems of South Asia, the
International Agricultural Research Centers and Advanced Research Organizations. The Consortium strives to form
a network between national and international agricultural institutions to address the issues of productivity
enhancement of rice and wheat in a sustainable fashion. See http://www.rwc-prism.cgiar.org/rwc/index.asp for
further information.

Further discussion of this
case is provided at the CAS
web site.

What do Researchers Understand about
Intellectual Property?At the special legal issues
workshop on 28 May 2002, held within the
GASSIA workshop framework, three scenarios
concerning use of intellectual property in GIS were
presented to the participants as a test of "fear,
uncertainty, and doubt" (FUD).11 The following is a
brief summary of the results.
* Over half of the 16 respondents had
misconceptions about intellectual property
control over the Digital Chart of the World
(DCW), a major database of global spatial data,
and another 40% were uncertain of distribution
rights to DCW data.
Nearly half of respondents were uncertain
whether they could publicly release a dataset
incorporating Landsat 7 or ENVISAT (in the
future) data. There was a lack of understanding
of the data access and release policy for these
major remote sensing platforms.
Nearly half thought that peer reviewers would
have access to the datasets used in scientific
publications-not necessarily the case, where
some of that data is acquired under strict
licensing terms.
Only 30% felt that co-investigators would know
the IP regulations applicable in their home
Only 25% considered IP issues during project
formulation, and another 25% stated that they
never actively considered IP issues at this stage
of a project plan.
Two-thirds recognized that paying for access to
data does not necessarily confer any ownership
rights to that data; that it depends upon the
terms of the license or contract.

* Confusion exists regarding public domain data,
both as to its acquisition and use/reuse.
Most respondents expressed uncertainty or lack of
understanding regarding potential export
restrictions for their software, models, and/or data
The respondents generally understood the
different degrees (and costs) of intellectual
property protection associated with patents versus
copyright, but failed to understand that patented
software (or models) can still be made freely
available under open source license terms.
Two-thirds of respondents agreed that the "Scope
of Use" clause in software and data supply
licenses was very important.

Intellectual Property in a Broader Research
Context. Whereas the focus of this document is
spatial information, researchers should understand
that IP issues are gaining importance throughout
science and industry. Dr. Lester Thurow, professor of
economics and management at the Massachusetts
Institute of Technology, (1997) noted that,
"Fundamental shifts in technology and in the
economic landscape are rapidly making the current
system of intellectual property rights unworkable and
ineffective. ... Skills and knowledge have become the
only source of sustainable long-term competitive
advantage. Intellectual property lies at the center of
the modern company's economic success..." Thus:
* Knowing how to operate within current IP regimes
may be crucial to developing new, sustainable,
and more productive agricultural and natural
resource management technologies.
Researchers have responsibilities for promulgating
their unique scientific contributions and rights
over how their results are used. IP issues can
influence their ability to distribute their products.
Basic tenets of IP protection are being debated
globally with a view toward adjusting IP legal
regimes in response to new opportunities and
challenges presented by information technologies.

1 The full text of the scenarios is available at the CAS web site, http://www.cgiar.org/isnar/cas/


Chapter 2. Copyright


The term "copyright"originally referred literally
to a "right to copy" the literary works of an author,
and was meant to encourage the publication of
written works. Copyright was implemented by
requiring publishers to secure permission from
authors to reprint their work. Copyright provides a
public benefit with little burden on citizens, and
worked reasonably until advances in digital
reproduction began permitting very low cost, high
quality copying. Rights holders thus are taking
increasingly drastic steps to protect their products,
and some of these measures arguably impinge on
the long-established rights, such as fair use, of
certain users. As Richard Stallman (2000), founder
of the GNU open source project, noted: "what was
once an industrial regulation on publishers has
become a restriction on the public it was meant to

Copyright protects "literary and artistic works
... that ... include every production in the literary,
scientific and artistic domain, whatever may be the
mode or form of [their] expression, such as books,
pamphlets and other writings" including "works of
drawing, painting, architecture, sculpture,
engraving and lithography; ... illustrations, maps,
plans, sketches and three-dimensional works
relative to geography, topography, architecture or
science" that are fixed (published) in a tangible
medium (Berne Convention 1971). The definition
of "works" has expanded significantly over past
decades, as new technologies permit ever more

diverse and powerful ways of expressing ideas.
Such works must normally be original and
creative in nature. A mere recitation of facts,
regardless of how expressed, does not
automatically qualify for copyright. Under Article
4 of the WIPO Copyright Treaty 1996 and by
Article 10 of TRIPS, 1995, computer programs are
considered literary works (discussed further in
Chapter 5).

Copyright grants certain protective rights to
the owners of the expression of an original idea,
formula, model, method, or theory (the literary
works mentioned above), but such works must
be "...fixed in some material form" (Article 2,
Berne Convention 1971). Contrary to patents,
which protect concepts or ideas that have been
developed to a practical level, copyright provides
no protection for ideas per se, only for the form
of expression.

The duration of copyright protection varies by
country. The Berne Convention (Article 6) and
TRIPS (Article 12) provide for protection for the
life of the author plus 50 years as the minimum,
but many countries specify a term equal to the
lifetime of the author plus 70 years. For works
with multiple authors, the term of protection is
measured from the death of the last surviving
author (Article 7). Under the US Copyright Act of
1976, anonymous works, pseudonymous works,
and "works made for hire"12 are protected for 75
years from first publication or 100 years from the
year of creation, whichever expires first.

SThis term relates to most creative work an employee produces for an employer, and therefore applies to most research work
carried out by a scientist for his/her organization, as applied to copyright, unless a contract stipulates alternate terms

Two important protective rights granted to the
copyright owner are control of reproduction,
which prohibits copying, and control of
translation. A translation acquires its own
copyright, but this cannot infringe on the owner's
prior rights; that is, the translation must be
authorized by the owner and must acknowledge
the owner's copyright in the original work.

The copyright owner does not usually need to
formally register the material to be protected
(WIPO 2002a). Formal registration may be
important for legal action in claims of copyright
infringement. The details of enforcement of rights
can also affect an owner's ability to assert his
rights. Most countries no longer require that a
copyright notice ('copyright' or ) be displayed.
Older works that do carry the notice may be in
the public domain, due to expiration of protection,
and some works may claim protection but, in fact,
do not warrant protection. One example of the
latter case is a work containing simple lists of facts,
perhaps in tables, which a court determines to
have neither originality nor creativity (nor sweat of
the brow, in some jurisdictions) in compilation.
Copyright infringement occurs in three forms:
1. Deliberate infringement occurs if the defendant
used unauthorized copies in a manner that
violates fair use.
2.Contributory infringement occurs when the
defendant knowingly enables another person
to infringe on a copyright.
3.Vicarious infringement implies that, although
the defendant did not engage directly in
infringement or enable another to infringe, the
defendant had the right and ability to supervise
the infringing activity (for example, as an
employer or work supervisor) and had a direct
financial interest in the infringement.

Penalties for infringement under US law can
run as high as US$100,000. Infringement
proceedings can be taken against researchers and
their institutions. Risk of vicarious infringement
increases in projects that involve multiple
organizations operating under different legal
jurisdictions and IP regulations or cultures.

As more works become digital and original
works are transcribed to digital formats, they can
be published-that is, copied and transmitted-
at minimal cost and without knowledge or
control of the author or owner of the work. This
ease of abuse has undermined the basic
principles of copyright and enforcement, leading
to calls for stronger legal protection. The US
Digital Millennium Copyright Act (DMCA)
prohibits many actions not considered
infringements in other laws governing copyright.
Citizens in other countries face similar

Copyright and Spatial

Researchers creating or using spatial
information need to understand the basic
principles of copyright protection, including
possible consequences of infringements and
specific issues concerning protection of

In many projects, more than one copyright
owner will provide data (e.g., Figure 1). An
agricultural researcher may access a soils
database copyrighted by a private company,
whereas the land (parcel) boundaries used in the
research may come from a government agency.3

3 A recent study (Hajek et al, 2001) found that, in the EU, six categories of spatial data were typically needed for agricultural
modelling: agricultural landscape, boundaries, blocks of lands, value of soil, parcels and thematic attributes specific to the
research project. Data were typically 'owned' by three or more distinct organizations .
4 "Fair use" is a term that originates in US law and one that is often casually used, in other jurisdictions, to indicate a certain
standard of exception to the rights of a copyright holder.

To collect data relating to plant growth and to
analyze and present the results, both sets of data
are required. One source may willingly permit data
to be used freely or at low cost, or the data may
be in the public domain. The other data may be
privately held or under control of a government
agency acting under a strong cost recovery regime.
Fair use14 provisions may apply, depending on the
amount of data used by the researcher, or special
exemptions for non-commercial use by researchers
or educators may apply. Provisions may apply
under the national law of one data provider but
not under that of another, complicating cross-
border data interchanges. Such issues are best
resolved through a careful inventory of data
sources and associated IP. Detailed guidelines on
how to inventory data sources and associated IP
are available at the CAS web site.

Digital databases are not explicitly protected by
copyright under the Berne Convention. The WIPO
Copyright Treaty, 1996, (WIPO 1996a) extends
copyright to "...compilations of data (databases)"
as "intellectual creations;" but this protection may
not cover the data itself, as facts are not viewed as
the result of a creative process.

Copyright provisions in the WTO TRIPS
Agreement (Article 10.2) give some measure of
protection to databases. A proposed WIPO
Database Protection Treaty (1996) would extend
copyright protection to databases.

Copyright and Fair Use and
Fair Practice

Copyright regulations provide for various
public uses of works. The TRIPS Agreement and
Article 10 (Certain Free Uses of Works) of the
Berne Convention define these exemptions. Article
10 outlines fair practice in using several types of
works, including access to databases:

1.It is permissible to quote from a work available to
the public, provided that the quotation is
compatible with fair practice and the extent of
material used does not exceed that justified by
the purpose.
2.It is up to national legislation or agreements
between countries subscribing to the Berne
Convention to permit works to be used to the
extent warranted "by way of illustration in
publications, broadcasts or sound or visual
recordings for teaching, provided such utilization
is compatible with fair practice."
3.When protected works are used in accordance
with Article 10, the source and the name of the
author should be published with the quoted

The fair use doctrine thus moderates a copyright's
capacity to suppress expression. Unfortunately, there
are no absolute tests to identify fair use. US courts
issue opinions on individual cases, and it is
unadvisable to extrapolate from one case to the next.
Eisenschitz and Turner (1997) summarized the main
copyright exceptions for fair dealing embodied in
national law in the European Union, as follows:
* Copying for personal use.
* Copying for scientific, educational or other private
Archival copying and library privileges.
Educational exemptions and (other) graphic

For alleged illegal use of copyrighted material, the
main defense is under fair use exemptions. Applying
fair use can be especially difficult though in the case
of a database of facts. As stated by Cho (1998):
"Reproducing facts without copying the expression or
arrangement of facts will not be considered a
reproduction of a substantial part of the work." Yet it
is often not easy to separate facts from "expression
of facts" in court. Even in the USA, where fair use is
expressly referred to in copyright law, courts decide
on a case-by-case basis whether an alleged infringer
can employ fair use as a defense.

Chapter 3. Legal Protection of Databases

Databases used by scientists may be in the
public domain, copyrighted as compilations
under the Berne Convention, protected by
database laws, or protected as trade secrets and
accessed through licenses. There is much debate
on appropriate means to protect databases, due
to the wish to reward large investments in
compiling facts vs. the recognition that simple
compilations are neither copyrightable nor

Copyright Protection for

Article 5 of the WIPO Copyright Treaty, 1996,
and Article 10 of the WTO TRIPS Agreement,
1995, extend protection to "compilations of
data (database)," i.e., "compilations of data or
other material, whether in machine readable or
other form, which by reason of the selection or
arrangement of their contents constitute
intellectual creations shall be protected as such.
Such protection, which shall not extend to the
data or material itself, shall be without prejudice
to any copyright subsisting in the data or
material itself." These two treaties formally
extend the definition of protected works
contained in Article 2 of the Berne Convention.
However, the definition of a compilation remains
similar to that in the Berne Convention for
literary works and does not approach the
definition of a database set out in the EU
Protection of Databases Directive.

Linne (2000) states that: "By law, the US
federal government cannot copyright databases,
although private vendors disseminating
government information can. Scientists can

generally use copyrighted material because of a
fair use exception in the United States or
equivalent exemptions in Europe."

EU Legal Protection of
Databases Directive (1996)

To protect investments in large databases
and harmonize disparate national legislation in
Europe, the European Union adopted a directive
providing a novel form of legal protection for
databases in 1996 (European Commission
1996). The directive has now been translated
into national laws or transposed into existing
legislation in the EU countries (Hugenholtz
2001). Because of its scope and emphasis on
rights of investors, this activity is potentially the
single most important legislative development
affecting users of spatial information in recent
years. Features of the directive include the
* Protection is not based on extensions of
copyrights or patents. It represents a unique
or suigeneris right (meaning "of its own
It protects "databases in any form," where
database is defined as "a collection of
independent works, data or other materials
arranged in a systematic or methodical way
and individually accessible by electronic or
other means." (Protection does not extend
to software used to make or access
The protection is "...for the maker of a
database which shows that there has been
qualitatively and/or quantitatively a


substantial investment in either the
obtaining, verification or presentation of the
contents to prevent extraction and/or re-
utilization of the whole or of a substantial
part, evaluated qualitatively and/or
quantitatively, of the contents of that
* Extraction is defined as "...the permanent or
temporary transfer of all or a substantial part
of the contents of a database to another
medium by any means or in any form" and
re-utilization means "...any form of making
available to the public all or a substantial part
of the contents of a database by the
distribution of copies, by renting, by on-line
or other forms of transmission."
* In place of a fair use concept, the directive
prohibits "...repeated and systematic
extraction and/or re-utilization of
insubstantial parts of ... the database ...
which conflict with normal exploitation of
that database or which unreasonably
prejudice the legitimate interests of the
maker of the database."
* Users may extract or re-utilize a substantial
part of the contents of a database if this is
done for private purposes or for "...purposes
of illustration for teaching or scientific
research" and as long as the source is
indicated and the extent of copying is
justified by the non-commercial purpose to
be achieved.
* The term of protection for a database under
the sui generis right runs for 15 years. Any
substantial changes to the contents of a
database, such as additions, deletions, or
alterations that require a large investment,
can qualify the modified database for a new
term of protection.1

Databases that "...by reason of the selection
or arrangement of their contents, constitute
the author's own intellectual creation" are
still protected by copyright. No other criteria
need be applied to determine eligibility for
protection. But copyright protection does
not extend to the contents of such
databases and is "...without prejudice to
any rights subsisting in those contents
A reciprocity clause in the directive states
that only countries that offer similar
protection to EU nationals will receive this
new level of protection within the European
Economic Area.

Many parties would agree that copyrights
and patents provide little or no protection for
the contents of databases and that investments
by groups that assemble large databases merit
some form of protection, thus regulating large-
scale copying and redistribution of the data.
However, the EU directive has been severely
criticized on multiple fronts, an underlying
theme being that the protections excessively
favor large commercial database providers at
the expense of research and educational
communities. One of the foremost concerns
relates to the creation of the novel right.
Copyright and patents have stood the test of
time, and it seems risky to introduce a whole
new class of protection without much more
extensive consultation and deliberation. The
directive also diverges from previous practice in
automatically assigning rights to the investors
rather than the creators. Critics further suggest
that the provision for new periods of protection
following database updates essentially
authorizes perpetual protection, contrasting
with the fixed time limits for copyrights and

SNote that many IP professionals regard this point as allowing perpetual coverage of a database, since an entity could "renew'
coverage every 15 years, by updating the database.

patents. A fourth concern is that whereas terms
like "fair practice" have resulted in extensive
litigation in relation to copyrights, the directive
contains a large set of descriptors such as
"substantial part," "non-commercial purpose,"
and "substantial investment," that will have to
be interpreted through court cases.

Partly in response to the EU directive, WIPO
proposed a Draft Treaty on Intellectual Property
in Respect of Databases in 1996 (WIPO 1996b).
The draft generated strong disagreement among
various sections of the information community,
and this impasse has yet to be resolved.

Because a large body of international
research is done by or through institutions based
in the EU member states, researchers should
understand that the sui generis right is now
active. Many spatial databases may have such
protection, regardless of whether the immediate
provider is aware of its scope and potential

Protecting Databases by
Other Means

Legal means such as contracts and technical
measures such as encryption can also protect
databases. A contract "...is a two-party
agreement, the terms of which are specified by
the individuals involved. ... (the contract) can be
used to prevent unauthorized uses of a database
by the parties to the agreement." (Linne 2000)

Legal contracts have been used since the
first on-line electronic databases were created
for medical information, patents, and other

scientific data. Contracts are used to control access
to many large, spatial information databases, such
as those created by many national mapping
agencies and by satellite imagery vendors.

Contracts have drawbacks, including "(1) a
high administrative burden of negotiating terms
with each user and provider of data, particularly for
databases compiled from several sources, and (2)
they cannot prevent unauthorized downstream
uses of the database because they are only binding
on the parties to the agreement." (Linne 2000)
Whereas the first concern is being addressed
through cleverly implemented, on-line, "click to
use" licenses, the second concern is much more
difficult to eliminate.

Technological methods such as encryption can
also regulate use of databases, but they are
expensive and complex to implement, both for
vendors and users. The WIPO's Digital Agenda
(WIPO 1999) focuses on e-commerce in the
information area and IP in particular, and addresses
use of such methods. In the USA, the Digital
Millennium Copyright Act (DMCA) enacts the
provisions of the 1996 WIPO Copyright Treaty
(Article 12) that prevents "...removal of electronic
rights management information without
authorization" from any protected work. The
DMCA further makes it an offence, with severe
punishments, to publicize information that could
lead to removal of protection mechanisms.

Although not providing protection per se, data
in large databases are often modified in a readily
detectable way to permit reliable identification of
the source, even when copied to new media or
database software. Such digital watermarks may
include manipulation of non-significant digits to
create readily identifiable patterns and inclusion of
records with fictitious data (Isenberg 2002).

Examples of Databases using
Different Protection

The Digital Chart of the World (DCW)16, as
produced by ESRI, is a database of geographical
information in vector format derived from the US
government's Vector Map Level 0 (VMAP-0) of
the world. ESRI has provided enhancements and
additional quality control, and otherwise added
value. The box containing ESRI's "Digital Chart of
the World for use with ARC/INFO software"
contains fine print warning potential users that if
they do not "...agree to the terms and conditions
as stated, then ESRI is unwilling to license the
database" and that the unopened box should be
returned. Permitted uses include:
* Installing the data on a server.
* Making one copy for backup puposes.
* Modifying the data or merging with other
data sets.
Selling, marketing or otherwise distributing
hard copies (paper maps) of the database or
parts of it, provided that ESRI is acknowledged
as a source.

Prohibited uses are:
Selling, renting, transferring, etc. of the data to
unlicensed third parties.
To reverse engineer the ESRI ARC/INFO format.
Selling, marketing or otherwise distributing the
data in digital form (including derived forms).
Removing or obscuring any ESRI copyright,
proprietary, or trademark notices.

The document states clearly that it "is a license
and not an agreement for sale." Additional
sections deal with duration of the agreement,
warranties, export regulations, and other details.

Land Information New Zealand (LINZ) supplies
their Landonline Bulk Survey Data (LINZ 2001) for
the cost of distribution only and permits the data
to be redistributed at no additional fee to LINZ.
LINZ retains copyright, but the IP in any
modification or derivative work resides with the
person adding value to the raw data. Thus, while
LINZ operates under a "crown copyright"
(government copyright control) regime, it releases
raw survey data without seeking financial gain
from derived products.

SThe DCW was based on the Defense Mapping Agency (DMA) Operational Navigation Chart (ONC) series produced by the
United States, Australia, Canada, and the United Kingdom, at a scale of 1:1 million (1 inch equals approximately 16 miles).

Chapter 4. Patents

Contrasting with the focus of copyrights on
forms of expression, patents deal with useful
inventions. Patents are regulated under terms of
the Paris Convention for the Protection of
Industrial Property, 1883- 1979 (WIPO 2001b)
and Section 5 of the TRIPS Agreement (WTO
1995). The TRIPS Agreement sets a minimum
protection period for patents of 20 years "from
the filing date" (Article 33). Patent protection
must be requested from designated bodies in each
country, following strict procedures. Applications
usually are filed via patent agents who know these
procedures. Agents also advise whether the
application is likely to succeed, following a search
for published information that might negate
claims to novelty or non-obviousness.

Treaties such as the Patent Cooperation Treaty
(PCT) and the Patent Law Treaty (PLT) simplify the
application, search and examination processes.
National applications must still be filed with the
patent office of each nation, except where
regional systems exist, such as the Organisation de
la Proprie Intellectuelle (OAPI) in the francophone
countries of Africa.17 The filing cost ranges from a
few hundred US dollars to more than US$ 10,000.
Maintenance fees can further increase the cost
and, if necessary, defending a patent can cost
millions of US dollars (Barton 2000). Since patent
protection is only a right to prosecute
infringement, the potential costs should be taken
into consideration when deciding to file for a
patent, and if so, where to file.

Patent protection is sought not just for
economic benefits and to restrict use of the
patented elements, but to secure IP control of
important new techniques, models, or tools which
can then be released to the public, including other
researchers, in a more managed way. Patents can
protect the conceptual framework underlying
intellectual property that has been rendered useful
by a "reduction to practice." The danger to
research institutions is that an organization will be
granted a patent for a critical element of research,
and this patent thus allows access only to those
who can afford to pay the license fees.

Patents are awarded after search and
examination by experts employed in or contracted
by national or regional patent granting authorities.
The validity of a patent depends on the skill of the
examiner, the honesty of the inventor(s), and
drafting skills in preparing the application. In
recent years, there has been an outcry against
patents that would have affected millions of users
of information and communications technology
equipment or services. Some were later
overturned on request for re-examination, appeal,
or in civil cases regarding fulfillment of patenting
requirements. Some failed the novelty or
usefulness tests. Others were disallowed on
technical grounds when additional prior art was
discovered or the innovation had actually been
used, sold, or disclosed to the public prior to the
filing of an application.

In practice, the PCT system virtually assures that a patent will be issued by a national patent office, if the search and examination
authority, say the European Patent Office (EPO), looks favourably upon the patent application. The EPO can issue an EPO patent.
However, this can become a national patent, subject to an opposition process, only in States that were designated at the time of
filing and that are members of the EPO.


If a patent is infringed, the only remedy is
generally a civil or administrative lawsuit. This
contrasts with infringement of copyright, which
can carry criminal penalties as well, and breach of
confidentiality and unlicensed use of a trade
secret without permission, which are criminal acts
in most jurisdictions.

For agricultural research staff and their
institutions, especially as regards spatial
information, one key question is whether
software tools, methods, and models are
patentable in their legal jurisdictions. If so, then
the possibility exists that third party products used
in research are patented. In addition, the option
exists to seek patent protection for research
products developed by these staff or institutions.
See Chapter 5 for further discussion on protecting
software by patents.

Patent Protection for
Methods and Processes

The patent system is designed to protect
invention of both products and processes. Patent
systems in some nations, such as the USA, grant
patents for business methods, a practice not
allowed in systems such as that of the European
Union. The current debate centers on two issues:
(1) whether such patents should be allowed and,
if allowed, (2) how to better regulate the process
by which they are granted, since patents are
awarded for many seemingly obvious methods.

The US government supports the concept of
patenting business methods, and a court ruling in
1998 (State Street 1998) found that "...such

patents express the practical application (useful,
concrete, and tangible result) of technology that is
the essence of innovation." A US Patent Office
White Paper (USPTO 2000) concludes: "USPTO
management is committed to the successful
examination of these applications to ensure
continued growth and innovation in this important
area." In various international agreements, the US
government has pressured trading partners to
clarify IP laws protecting business method patents,
including software algorithms.

During the consultative process preceding
current attempts to create an EU Community
Patent, the 19 countries that operate the European
Patent Office (EPO), which examines European
patent applications for a number of European
countries, voted to allow patents "...in all fields of
technology," including methods and software (Fox
2000). According to some sources at the EPO,
both software and some business methods claims
have already been allowed by the EPO. In February
2002, the European Commission published a draft
directive for patentability of software (European
Commission 2002). The spirit of the document has
been broadly attacked,18 and the fate of this
initiative is as yet unclear.

Examples of Patents Related
to Spatial Analysis

A search of the US Patent and Trademark
Office's on-line database19 for "GIS" reveals the
prevalence of GIS and related tools in the patent
literature. Table 2 lists examples from this list as
well as patents from related fields including image
processing, GPS, and database design. We
examine a few examples below.

See http:/www.eurolinux.org/ for an extensive critique of the proposal as well as links to the Eurolinux Petition for a Software
Patent Free Europe.
http://www.uspto.gov/patft/index.html provides access to the U.S, Patent and Trademark Offices searchable databases.

United States Patent 6,240,360 was
granted to Sean Phelan on 29 May 2001 for a
"Computer system for identifying local
resources" (Figure 2). The abstract describes a
system for transferring spatial data from a
server to a remote computer based on location
information provided from the remote device:

A map of the area of a client computer (10) is
requested from a map server (11). Information
relating to a place of interest is requested
from an information server (12) by the client
computer (10). The information is
superimposed or overlaid on a map image at
a position on the map image corresponding
to the location of the place of interest on the
map. The information (or "overlay") server
(12) may contain details of, for example,
hotels, restaurants, shops or the like,
associated with the geographical coordinates
of each location. The map server (11) contains
map data, including coordinate data
representing the spatial coordinates of at least
one point on the area represented by the

The numbers refer to a drawing provided
with the patent application (included in
Figure 2). The patent is held by Multipmap.com
in the UK, which reportedly has attempted to
enforce the similar UK patent.20

Various data compression algorithms are
patented. The GIF image format uses LZW
compression, which is covered by patents held
by Unisys and IBM. Software that allows
manipulation of GIFs should include a license
from Unisys. Open source software specifically
avoids use of GIFs to eliminate the need for
licensing (Anonymous, 1999). Other patented
compression algorithms include MrSID
(LizardTech Inc.), which is based on technology
licensed from Los Alamos National Laboratory,
and Enhanced Compression Wavelet 2.0 (Earth
Resource Mapping, Inc.). These two algorithms
are currently the subject of a patent
infringement case.21

IDELIX Software Inc.'s Pliable Display
Technology (PDT) extends display capabilities of
traditional GIS software by providing
"magnification-in-context" tools. As the user
moves a "lens" over a display the image is
magnified. Patents for PDT are pending.22

Garmin Corp., a major manufacturer of GPS
units and related products, holds a patent for
"peer-to-peer position reporting," as featured in
their GPS-enabled, two-way radios. The patent
covers portable devices that combine GPS and
radio technologies to enable such devices to
transmit positions to other such devices, as well
as a method for indicating the location of one
device on the display of another portable device.
Garmin Ltd. and its subsidiaries hold 67 US
patents and have almost 100 US applications

See http://www.gismonitor.com/news/newsletter/archive/040402.php and http://mapserver.gis.umn.edu/wilma/mapserver-users/
0203/msg00495.html for discussions of this case.
See http://spatialnews.geocomm.com/dailynews/2001/apr/24/news3.html and http://www.jurisnotes.com/Cases/LizardTech.htm for
perspectives on this case.

Table 2. Recent US patents related to Geographic Information Systems. Details on individual patents are provided
at the US Patent and Trademark web site (http://www.uspto.gov/patft/index.html). The assignee is the individual
or entity to whom ownership of the patent was assigned at the time of patent issue, typically the business that
employed the inventor(s).

No. Title Assignee


6,411,899 Position based personal digital assistant Trimble Navigation
6,408,107 Rapid convolution based large deformation image matching via landmark and volume imagery (Not indicated in USPTO database)
6,404,920 System for generalizing objects and features in an image (Not indicated in USPTO database)
6,389,356 Geographic information system Matsushita Electric Industrial Co
6,353,832 Selectivity estimation in spatial databases Lucent Technologies
6,343,290 Geographic network management system Celeritas Technologies
6,337,693 Vector-based geographic data Autodesk


6,327,533 Method and apparatus for continuously locating an object Geospatial Technologies
6,321,158 Integrated routing/mapping information DeLorme Publishing Company
6,313,837 Modeling at more than one level of resolution Schlumberger Technology
6,308,177 System and method for use and storage of geographic data on physical media (Not indicated in USPTO database)
6,307,573 Graphic-information flow method and system for visually analyzing patterns and relationships (Not indicated in USPTO database)
6,292,827 Information transfer systems and method with dynamic distribution of data, control and Shore Technologies
management of information
6,282,362 Geographical position/image digital recording and display system Trimble Navigation Limited
6,269,358 Method and system for similarity-based image classification
6,262,741 Tiling of object-based geographic information system (GIS) PRC Public Sector
6,247,019 Object-based geographic information system (GIS) PRC Public Sector
6,240,424 Method and system for similarity-based image classification NBC USA
6,240,360 Computer system for identifying local resources Multipmap.com
6,229,546 Rapid terrain model generation with 3-D object features and user customisation interface Geosoftware
6,216,130 Geographic-based information technology management system InGeo Acquisitions
6,202,063 Methods and apparatus for generating and using safe constraint queries Lucent Technologies
6,191,787 Interactively constructing, editing, rendering and manipulating geoscience models Schlumberger Technology Corporation
6,184,897 Compressed representation of changing meshes and method to decompress IBM


6,144,338 Predictive drop and load algorithm for an object-based geographical information system PRC Public Sector
6,134,541 Searching multidimensional indexes using associated clustering and dimension IBM
reduction information
6,128,577 Modeling geological structures and properties Schlumberger Technology Corporation
6,122,628 Multidimensional data clustering and dimension reduction for indexing and searching IBM
6,119,069 System and method for deriving field boundaries using alpha shapes Case Corporation
6,115,672 Method for measuring and quantifying amounts of carbon from certain greenhouse gases Environmentally Correct
sequestered in and by grassy and herbaceous plants above and below the soil surface Concepts
6,107,961 Map display system Kokusai Denshin Denwa Co
6,081,624 Spatial index compression through spatial subdivision encoding Autodesk
6,052,650 Enforcing consistency in geoscience models Schlumberger Technology Corporation
6,031,548 Progressive multi-level transmission and display of triangular meshes IBM

Figure 2. Example of a description of a US patents for a "Computer System for Identifying Local Resources:
(US Patent No. 6,240,360 B1). Information was downloaded from the US Patent Office web site.

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Chapter 5. Computer Software Protection

Computer Software
and Copyright

Computer software is typically protected by
copyright or licensing agreements. The Berne
Convention says nothing about copyrighting
computer software, but Article 4 of the WIPO
Copyright Treaty, 1996, states that computer
programs are to be protected as literary works as
per Article 2 of the Berne Convention,
"...whatever be the mode or form of their
expression." Article 10 (1) of the WTO TRIPS
Agreement also states that "Computer programs,
whether in source or object code, shall be
protected as literary works under the Berne
Convention (1971)." Thus, all nations that ratified
the WIPO Treaty or WTO TRIPS Agreement must
allow computer programs to have copyrights.

The EU's computer software copyright directive
(European Commission 1991) requires member
states to protect computer programs by copyright
as literary works, within the meaning of the Berne
Convention. The term "computer programs"
would include their preparatory design material,
including source code. The directive further stated
that the computer program would be protected if
"...it is original in the sense that it is the author's
own intellectual creation" and that no other
criteria would be applied. Protection applies to the
expression of the computer program in any form
but not the underlying ideas or algorithms.

Computer Software
and Patents

Some jurisdictions have permitted computer
programs to be patented. In the USA this is
allowed under current patent legislation. In
Europe, as discussed in Chapter 4, the European
Patent Office has allowed software patents despite
the lack of a legal framework that explicitly
permits such patents. Elsewhere, the practice is
still being debated. Such protection potentially
affects the use of computer programs by people in
the spatial information sector, because the
protection extends to the ideas, formulas, or
methods underlying the computer code, not
simply to the code itself as with copyright

New computer hardware is readily patentable,
but computer programs have generally been
considered to "...fall within the general
prohibition against schemes, plans, and other
types of intellectual information" (Cho 1998).
Patents on software are now common in the US
patent system, but Article 52 (2) of the European
Patent Convention specifically excludes software
from the list of patentable inventions. The
president of the European Patent Office (EPO)
estimated that the EPO had "issued (allowed) over
20,000 patents on computer programs" by the
end of 1997 (Basinski 2001), but an attempt to
remove the software restriction from the European
Patent Convention failed in 2000 (Sayer 2000).

Protecting Software via
Copyright versus Patent

Software can be protected by copyright at
virtually no cost and for very long periods of time
(70 years or more). Patents are expensive to obtain
and to defend and offer protection for much
shorter time periods (15 20 years). Thus, one
might question why software developers are eager
to patent software.

Recall that copyrights apply to forms of
expression and not ideas. While a third party
cannot copy software directly, they can use the
ideas contained in software to create software
with similar functionality, even down to using the
same logic in complex algorithms. In contrast, with
patent protection, the underlying ideas are fully
protected. Researchers might consider patenting
software that implements novel methods,
procedures or processes for two reasons:

1.The policy of the researcher or his employer
may be to try to capitalize on research
funding and the patented software or
method can be exploited.
2.Once the software is patented, the patent
owner can decide to freely distribute the
software under terms that they control, via
licensing, even of an "open source" nature.
This protects other members of the research
community or beneficiaries of the research
from some day facing potentially steep
charges should some other less benign
innovator create similar software or
procedures and then decide to charge all
users for its application. This type of strategy
is often referred to as "defensive patenting".

Whether or not patents are applied for will
also depend upon the legal regime of the target
country and the information access policy of the


Chapter 6. Other Legal Issues

Other legal issues affecting use and misuse of
spatial information include:
* Protecting commercial or organizational
Ensuring data privacy (personal
confidentiality) for individuals or groups.
Abiding by national laws on exporting or
importing data or information products.
Understanding and incorporating appropriate
licensing terms.
Managing liability related to data, information
and software products.

These issues may interact with each other
and with the IP issues discussed previously.
Consider the range of national and/or
institutional regulations that might affect
collecting spatial information from multiple data
owners, analyzing the data using models or other
input from other researchers, or the publication
and distribution of maps created through a GIS.
This chapter examines confidentiality and privacy
issues, while licensing and liability are covered in
the two following chapters. Laws governing
import and export of certain types of information
and software vary quite dramatically across
national jurisdictions and are outside the scope of
this primer.

Protecting Confidentiality in
the Information Age

One method of protecting IP is simply to
keep private as much information as possible
about the product, process, technique, model, or
method that is to be protected. Prior to the
advent of patent regimes, secrets were one of
the few protections available to inventors.

Confidentiality. Confidentiality of
information does not arise automatically. A
communication, in whatever form, should be
clearly identified as "in confidence." Protecting
confidences is governed by legal provisions
differing from those for ideas. Common law and
equity protect secrets (Cho 1998) via legal
actions for breach of confidence. Laws in most
countries consider it to be a breach of
confidence if a person receiving information "in
confidence" discloses the information to a third
party. Almost anything, ranging from industrial
formulas to lists of customers, can be protected.
The main requirements are that the information
must be "...secret, a discrete entity and uniquely
ascertainable" (Cho 1998). The information
does not need to be expressed in material form;
verbal information is protected as fully as
written information. The protection of
confidential or trade secret information has
become more standardized and enforceable
internationally as a result of TRIPS provisions
(Section 7) covering this area.

To maintain the confidentiality of electronic
communications, include a simple confidentiality
statement as part of the prefix or suffix to a
message. A typical example found attached to
many e-mail messages is:

"This message is sent in confidence for the
addressee only It may contain legally
privileged information. The contents are not
to be disclosed to anyone other than the
addressee. Unauthorized recipients are
requested to preserve this confidentiality and
to advise the sender immediately of any error
in transmission."

Vendors of spatial information and GIS tools
often invoke confidentiality restrictions on
purchasers via clauses in licenses for data or
software. Such clauses allow the purchaser to use
the data or tools (software or models), but prohibit
the purchaser from disclosing any details to a third
party. The terms are enforced via contract law.
Researchers should note that third parties who
unwittingly use confidential information may still
be liable, depending on how they accessed the
information and whether they should have
suspected that the information was meant to be

Research staff working on projects involving
cross-border partners should be aware of any
confidentiality clauses that may exist in project
documents or funding arrangements relating to
entire programs. If a research group involves
institutions and research staff from different
countries or different legal jurisdictions, contractual
terms should be introduced into project
agreements that can be used later to establish
breach of confidence, should confidential
information be knowingly or inadvertently misused.

Trade Secrets. Trade secrets are typically
protected by unfair competition law (WIPO 2000).
Protecting trade secrets in today's digital network
environments relies heavily on technological
measures such as encryption and password control.
Once a trade secret has been stolen and posted to
the Internet, courts may have trouble determining
the "secrecy" element of the trade secret, as set
out in TRIPS Article 39 (2-a and 2-c) below:

Natural and legal persons shall have the
possibility of preventing information lawfully
within their control from being disclosed to,
acquired by or used by others without their
consent in a manner contrary to honest
commercial practices so long as such information:

(a) is secret in the sense that it is not ...
generally known among or readily accessible
to persons within the circles that normally
deal with the kind of information in question;
(b) has commercial value because it is
secret; and
(c) has been subject to reasonable steps under
the circumstances, by the person lawfully in
control of the information, to keep it secret.

(For the purpose of this provision, "a manner
contrary to honest commercial practices" shall
mean at least practices such as breach of
contract, breach of confidence and inducement
to breach, and includes the acquisition of
undisclosed information by third parties who
knew, or were grossly negligent in failing to
know, that such practices were involved in the

Staff involved in agricultural research that
generates information of commercial value should
be aware of their responsibilities in regard to trade
secrets. Such information is considered to be a
trade secret if (1) the owner takes reasonable
measures to keep the information secret and (2)
the information has real or potential economic
value by not being made public (Selzer and Burns
1999). Thus, not all confidential information is
necessarily a trade secret, yet both types of
information can be protected.

A particular problem may arise when staff
leave one organization and join another, taking
both confidential and trade secret information
with them simply because they were party to its
creation or used such information in their work.
Both staff and institutions should recognize their
rights and responsibilities in such cases, and stated
policies should be in place, including appropriate
non-disclosure and confidentiality agreements and
forms, both in contracts of employment and
perhaps even on a project basis.

Personal Privacy
(Data Protection)

People working in agricultural and natural
resource management may consider that such
work normally does not invade anyone's privacy,
yet seemingly innocuous records of farm
expenditures, farming practices, or property
boundaries are legally viewed as personal data,
especially under recent European privacy laws.
Countries with personal data legislation generally
require that administrative steps be taken to
inform the persons) affected as to what is being
collected, why, how, and for what use, as well as
to register databases holding the personal data.
Failure to follow these protective steps can lead to
criminal prosecution, as under the UK's Data
Protection Act 1995.

To avoid the need for such controls, a valid
alternative is to eliminate the use of actual
identities of any persons who might otherwise be
identified via the research. The US National
Institute of Statistical Science24 is developing a
system for the US National Agricultural Statistics
Service5 to disseminate geographical survey data
on agricultural-chemicals usage that protects the
identity of farmers (Karr et al. 2000; Karr et al.
2001; Federal Committee on Statistical
Methodology 1994).

The information privacy policy promoted by
the US Federal Geographic Data Committee (FGDC
1998) to protect personal information in
"geospatial databases" is as follows:
* When personal information is collected directly,
at the time of collection agencies should
inform individuals of:

o why they are collecting the information
and their legal authority to do so,
o how the information will be used and
protected as to confidentiality, integrity
and quality,
o the consequences of providing or
withholding the requested information,
o how to correct personal information if it
lacks sufficient quality to ensure fairness in
its use,
o the opportunity to remain anonymous
when appropriate and any rights of
redress, plus the records retention
schedule of the agency.

Personal information is to be acquired and
used only in ways that respect an individual's
privacy and such information will be
collected only as needed to support current
or planned activities.
Agency staff should be are aware of the
privacy implications of geographic
information system technology.
Technical and managerial controls will be
used to protect the confidentiality and
integrity of personal information, including
prevention of alteration or destruction of
such information held in or linked to
geospatial databases, and such information
should be as accurate, timely, complete and
relevant as possible for the purposes for
which it is acquired and used.

These policies apply to any US agency that
collects personal information. They serve as an
excellent model for policies to protect privacy.

NISS www.niss.org/dg
NASS http://niss.cnidr.org

Chapter 7. Licenses and Licensing

Given the uncertainties over coverage by
copyright and other protections, licenses remain
one of the most common mechanisms used to
protect software and data products. Research staff
should understand the various types of licenses
and the terminology used, both as end-users and
as potential producers.

Typical Licenses for Software
and Data Use

It is difficult to identify software licenses for
commercial software packages that consist of less
than several pages of small print. The ESRI Master
License Agreement (MLA)26 has 11 major articles
with numerous sub-sections plus a table and
explanatory notes, as outlined below:

1. Definitions.
2. Intellectual property rights and reservation of
3. Grant of license (covering normal licenses, beta
release licenses and evaluation licenses).
4. Scope of use (permitted uses and uses not
5. Maintenance.
6. Term and termination.
7. Limited warranties and disclaimers (3 sub-
8. Exclusive remedy and limitation of liability (2
9. Infringement indemnity (3 sub-clauses).

10. General provisions (with 11 sub-sections).
11. Entire agreement, amendments.
12.A table for scope of use showing what types of
licenses apply to what products in the ESRI
product line, including both software and data.

A separate ESRI Data License Agreement27 has
15 clauses, including permitted and not permitted
uses, redistribution rights for derived data sets, no
warranty given for quality, limitation on liability,
and export restrictions.

Licenses for software or data downloaded
from a Web site can be read by the user prior to
accessing the information product. For packaged
products, the paper version of a license is typically
contained inside the physical packaging that
contains the software or data. By opening the
software package, most vendors lead users to
believe that they have already agreed to the terms
contained therein. Such "shrink wrap licensing"
claims have been contested in various countries
with varying results. Considerable time and money
may be spent in fighting claims by vendors against
the purchaser in regard to defending the latter's
right to refuse and/or return the software once the
packaging has been removed. In the USA, courts
have variously upheld and rejected the validity of
shrink wrap or "click to agree" (on-line) license
terms, in interpretations of the Uniform
Commercial Code (UCC) that embodies US
commercial law (Myers 2000). A key issue is at
what time did the purchaser have the opportunity
to actually see the terms to which he/she had
allegedly agreed, in relation to the time at which
the product was purchased or first used.28

See URL http://www.esri.com/software/arcims/License.pdf for the latest version.
See URL http://www.esri.com/data/online/datalicense.html for the latest version.
See also http://www.bsa.org/usa/policy/consumers/wysps.phtml for details of the US Uniform Computer Information Transactions Act.


Researchers who offer their data under any
conditions other than public domain need to
carefully consider why the data are being released
and what licensing terms are needed to achieve
those aims. If data from multiple sources are
integrated into the final result, careful
consideration must be given to the licensing terms
for each product. Unfortunately, few purchasers of
software or data packs read licenses thoroughly
and thus understand the legal conditions governing
use of the product. Furthermore, the license text
often requires an understanding of legal
terminology to fully comprehend the ramifications
of the agreement.

Two important topics used in licenses are those
dealing with "uses not permitted" and
"redistribution rights for derived data sets" (e.g., in
the ESRI Data License Agreement discussed
previously). Most such agreements prohibit transfer
of data to unlicensed third parties. More
importantly, since data acquired from outside a
research project are likely to be integrated with
data collected during the research, limitations on
distribution rights for the "derived data sets" can
be crucial. Such rights should be closely scrutinized
at the start, to ensure that there is such a right,
even if at an additional cost.

For data or tools made available to educational
institutions, a statement is often provided that the
product can only be used or disseminated for "non-
commercial use." This concept also appears in the
licensing agreements for many publicly available
(but not public domain) spatial datasets, such as
the 1:1 million scale Global Map project and for
national datasets from many countries around the
globe that are participating in the Global Spatial
Data Infrastructure (GSDI) initiative. An educational
institution using a topographic base map for
classroom instruction has nothing to fear from such
a restriction. A scientist who may have acquired
similar data and uses them in completing a

commercial research project faces quite a different
problem, including potential infringement.

Therefore, while apparently gaining ready
access to no-cost or low-cost spatial information
that is crucial to either their research (for spatial
analysis purposes) or to the publication of final
results, researchers should be aware of the terms
and conditions of any external data sources used,
unless the data are officially in the public domain.

They should also beware of potentially losing
rights to software or data that already purchased,
as a result of upgrading to newer versions offered
by the same supplier. Some licenses, covering
trade-in upgrades, restrict the use of previous
versions. However, most software upgrades and
associated licenses impose no such restriction on
the user or original purchaser, although all original
terms of acquisition do still apply (Jenness 2001).

Copyleft Licenses and the
GNU Open Source Tradition

The GNU General Public License intends to
ensure open access to software and data.
"Copyleft" is a claim to willfully revoke the
exclusivity inherent in copyrighted works under
stated terms and conditions. Anyone can copy
and distribute the work or properly attributed
derivative works, but all copies remain under the
same terms and conditions as the original. The
terms for copyleft software typically prevent those
who redistribute the software from adding
restrictions during redistribution, even if they
modify the original software prior to
redistribution. Copyleft software is "free
software," even if modified. The GNU Project
copylefts almost all the software it produces,
because their goal is to give every user the
freedom implied by the term "free software."

To copyleft a program, researchers need to use a
specific set of distribution terms, which can be
written in many ways. The GNU Web site29 contains
much information on different types of open source
licenses plus educational material about the entire
open source movement. There are also links to the
Free Software Foundation, Inc., in the USA, which is
one of the driving forces behind the open source

If a researcher or institution develops a new
program for which they want to encourage the
widest possible use, this can probably best be
achieved by making the new product "free
software" (as opposed to "shareware"), which
everyone can then redistribute and change under
the GNU Public License terms. To do this, simply
attach the notice (shown to the right) to the
program, typically at the start of each source file, to
convey the exclusion of warranty. Each file should
have at least the copyright line, a pointer to where
the full copyright notice can be found, and contact
information for the program author.

29 See http://www.gnu.org/home.html for extensive coverage of 'open source' software.

Freeware Notice

Copyright (C) yyyy Name of Author

This program is free software; you can
redistribute it and/or modify it under the
terms of the GNU General Public License
as published by the Free Software
Foundation; either version 2 of the
License, or (at your option) any later

This program is distributed in the hope
that it will be useful, but WITHOUT ANY
WARRANTY without even the implied
GNU General Public License for more

You should have received a copy of the
GNU General Public License along with this
program; if not, write to the Free Software
Foundation, Inc., 59 Temple Place Suite
330, Boston, MA 02111-1307, USA.

Licensing Summary

The following summary of license
considerations may help focus research staff on
the value of licenses and the main terms to be
included, if creating a license, or to be aware of, if
entering into a license (European Commission
* Licensing terms are not backed by the
international IP treaties nor, in most developed
countries, by national IP law. Rather, their use is
regulated by the laws of each nation, ranging
from privacy protection to consumer protection
to national security considerations, or proper
use may be defined within the license itself.
If claiming IP rights, state this clearly in the
license. List what rights you are claiming and
that you are claiming them. Include
confidentiality statements dealing with the
disclosure of IP in the products, whether
software or data.
Various open source licenses allow you to
surrender specific rights associated with IP
protection (for instance, copyleft clauses), while
still controlling how the IP is to be used or
Licenses can offer differing levels of protection
in different legal jurisdictions and even in
regard to different types of products and
services in a single country.
There is much more experience (in law) with
licensing software than with licensing data,
especially digital data and especially digital data
made available via the Internet.

* Examine the termination clauses in a license,
listing specific events that can lead to
termination of the license, some of which may
be automatic.
* Consider use and redistribution clauses
carefully; for example, the number of copies
permitted to be made by the original
purchaser, use on networks versus stand-alone
systems, any additional support costs for
networked systems, upgrade fees (if any are
planned), or use for commercial versus
educational purposes.
* Be aware of defensive clauses excluding liability
for the different forms of loss or damage that
may arise as a result of using the software or
data, either due to faults in the product or in
its misuse by the end user.
* Be aware that the terms of licenses depend
upon the law of the jurisdiction in which the
product is sold and that special legal
requirements may need to be met for the
license to be enforceable, such as the language
of the license. For software or data delivered
on-line, this can be especially problematic, and
involves laws on taxation (both sales and value-
added taxes), e-commerce rules that may be in
place (e.g., recognizing digital signatures), laws
on export control, and even laws on currency

Chapter 8. Liability Issues

Nearly any human endeavor that delivers a
product or service to the public, whether for sale,
for hire, or for free, can create liability. A large
body of law already exists in many countries for
liability and computer software. Liability in relation
to data is a much newer phenomenon in regard to
both statutes enacted and legal cases previously
argued in court. Although laws vary from one
country to another, in general, liability for data can
arise in four areas:
1.Errors in represented location due to
measurement or data manipulation mistakes.
2. Errors in representing otherwise error-free data;
for example, graphically showing data at the
wrong scale, thus misleading the user (even if
done inadvertently).
3.Harm caused to users by unintended or
inappropriate use of the data (or of software,
in an integrated system), which might or
should have been (in the opinion of a court)
prevented by the provider.
4.Infringement of copyrights or other IP

Liability falls into three broad categories
(Westell 1999a, 1999c; Klinkenberg, 1997):
1.Contract liability (or breach of contract),
including breach of express and implied
2. Negligence.
3. Product liability (or breach of statutory duty
regarding consumer protection statutes).

Negligence arises if harm, loss or damage
results when a supplier fails to exercise reasonable
care to a standard normally accepted in the same
situation. Reasonable care has been defined in
statute and by courts for many situations. Defects
leading to such liability include design faults and
marketing misrepresentations; for example,
leading potential users to believe that products or
services are fit for a purpose for which they are
not. Map makers and users of maps have been
found to be negligent in past court cases,
although such cases are sufficiently infrequent that
many practitioners are not unduly concerned.

In some jurisdictions, neither the cost of
software or data nor pure economic loss can be
recovered under a negligence claim. Losses that
are covered include losses for death or injury to
persons and damage to personal property, as well
as economic losses arising from personal injury or
damage to physical property (Westell 1999b).
Under the strict product liability or breach of
statutory duty laws of some countries, the user is
required to show that the product is inherently
dangerous in nature. It does not require that the
injured party demonstrate improper action on the
part of the producer, and liability can extend
beyond the producer of the data to anyone acting
on behalf of a producer; for example, by importing
or distributing the product.

Liability relating to spatial information raises
many questions, because it is often difficult to
measure the completeness, accuracy, or reliability
of such data as "express terms" in a supply
contract. It is important to specify the nature of


the data product as completely as possible, to let
potential users know (1) what the data were
collected for, (2) what they were used for initially,
and (3) what they are not suitable for, even
though such a list is not likely to be exhaustive.
Provision of adequate "metadata" (descriptions
of the nature and sources of the product in
question) with data should reduce liability.

Note that so far as limiting liability goes,
there is potential for a basic conflict of interest
among parties negotiating contracts. People
contracting for products or services will normally
expect that a contract clearly state the purpose
of the product or service and provide warranties
that the product or service is fit for its intended
purpose. In contrast, product or service providers
will seek to minimize explicit claims of suitability,
to reduce potential liability. In an ESRI White
Paper on publishing GIS software, which applies
equally well to publishing spatial information, the
following advice is given (ESRI 1995):
Put disclaimers in log-on screens (for software
or database access) and user manuals, stating
what you actually know to be true about the
software or data (e.g., accuracy, timeliness,
sources), but that no warranty is made
concerning this. Add footnotes showing
where data can be verified.
Be careful in wording of advertising and
marketing material that might be used in
evidence against you later if determined by a
court to be misleading.
Add legends that actual data should always
be checked and that this is the responsibility
of the user and that information is subject to
change, plus notices of actual changes. Make
full disclosure of known uncertainties and
hazards in use of the software or data.

* Advise users to seek expert help for specific
advice or actions and require signed user
agreements acknowledging all the
Carry comprehensive insurance against

While sound advice for a product or service
provider, it is easy to see why someone
contracting work might feel uneasy about this
attempt to disclaim responsibility.

Agricultural research staff and their
institutions should recognize that there are two
sides to attempts to ensure a quality product or
service and, as always, consult legal advisors
before entering into contracts (by signing or
otherwise agreeing to license terms), or when
creating licenses of their own for release of
research results, regardless of what level of IP
control is intended.

It is possible to release software, data, or
advice into the public domain, claiming neither
IP nor economic gain, and still be held liable for
the product or service so offered. However,
anecdotal evidence suggests that, for spatial
information services that are offered at no/low
cost by public research organizations and that
carry appropriate disclaimers, the risk of being
held liable may be lower than would otherwise
be the case.

Chapter 9. Legal Issues in the Context of Projects

The previous chapters have addressed issues
on a component basis, mainly examining IP in
relation to databases and software as discrete
entities. Most activities using spatial information
will occur within the context of projects, whether
within a single institution or research unit or
among multiple research groups.

Project Work Plans,
Memoranda of
Understanding, or Contracts

A project work plan, memorandum of
understanding, or contract can spell out who will
own what outputs of a project, how the
intermediate or final products can be used, and
disclaim potential liabilities (within reason). A well-
written agreement is an excellent way to clarify
expectations, regardless of applicable laws, and to
ensure that a project satisfies institutional policies,
particularly when more than one institution is
involved. Besides the project goals, objectives and
activities, a robust project description for work
involving spatial information should address data
and software management and reporting explicitly.

For data, this entails ensuring that, for any
data used, there is clarity on expected quality,
allowed uses, and ownership. In situations where
researchers may wish to publish from data or maps
produced through their labors, an institution may
license proprietary rights for a fixed period (e.g.,
one year) while retaining ownership. This is an
effective mechanism for avoiding dubious
promises that data will be released "after they
have been published" and clarifying that
ownership resides with the institution, not the

Attention should always be given to provide
and maintain metadata. Properly describing source
data and data products is simply a basic part of
good research, and will have the added benefits of
forcing researchers to examine source
documentation, including permitted usage and
data quality.

In dealing with software, the most contentious
issue is usually ownership of software developed
within a project. Keep in mind that, with GIS and
related tools, the line between software
development and simply using an application is
often blurred by use of macro languages or
specialty programs for data manipulation. If there
are doubts over the timeliness of delivery and
robustness of software developed in a project, a
work plan may define explicit activities for testing
pre-release (beta) versions against agreed-upon
performance criteria. Nonetheless, software
projects are notorious for exceeding time limits
and budgets (Standish Group 1995).

The main caution in relying on written
agreements is that allowable conditions and
terminology vary from country to country. In US
courts, emphasis is given to what the intent was in
an agreement as well as to whether there are
conditions that are unreasonably harsh or
restrictive. Courts of other countries adhere very
closely to the wording of a contract. In reviewing a
work plan or contract, some key points worth
considering are:
* Who owns the data or information? Who owns
information resulting from the research, in the
economic sense? Who has permission to
release what portions of the data to the public,
perhaps for peer review or in developing or
monitoring government policies?


* Who is responsible for data if they turn out to
be of poor quality or are misused? Are project
participants adequately protected from liability?
What legal remedies exist to resolve disputes
that may arise concerning ownership, allowed
use, and liability?
What legal jurisdiction takes precedent in
seeking legal remedies?
If data or software products are to be sold, is
this consistent with the cost-recovery policies of
the researchers' organizations, whether public
or private? Does charging for the product
violate any of the licenses for data or software
to be used in the project?
In describing data acquisitions, does the
terminology facilitate the required research use?

Whereas a primary objective of this primer is to
avoid conflicts over use of spatial information or
software, history shows that the best-laid plans can
still generate misunderstandings. All agreements
should contain provisions governing the resolution
of disputes arising from or relating to the
agreement. Four approaches to resolving conflicts
can be pursued.
1. Most disagreements can be resolved through
timely and open discussions. Regular meetings
of project participants is an excellent vehicle for
ensuring that problems or potentially
contentious issues are kept under control.
2. Many contracts require the parties to mediate
their disputes prior to taking legal action. In
mediation, a neutral third party, the mediator,
works with the parties to identify a workable
solution. Mediation is non-binding, so if the
aggrieved party is not satisfied, they can still
pursue more formal solutions.

3. Litigation is one option for forcing resolution
of a conflict. The legal venue will usually be
the nation where one or more parties are
located or where a substantial portion of the
project activities took place. Litigation
exposes the parties to a large range of
uncertainties concerning the nature and
quality of the judicial system involved, and
often proves much more costly and
problematic than is initially anticipated.
4. In arbitration, the parties agree to accept the
decision of a neutral party. In contrast to
litigation, the arbitrators) may be selected on
the basis of having expertise in the relevant
field. Within a single country, standard
procedures for arbitration are often provided
within laws governing contracts. At the
international level, arbitration can be handled
by bodies such at the International Chamber
of Commerce, or private entities.30 Arbitration
can also be as time-consuming and expensive
a process as litigation, especially where
multiple legal jurisdictions are concerned.

Projects in the
International Arena

International collaborations present a range
of challenges, due to the potentially conflicting
policies and laws that may apply. As emphasized
in previous sections, while basic principles of IP
are similar among different nations, details of
copyright, patent, and contract laws can differ
substantially across jurisdictions. For copyright,
points to be aware of include whether "sweat of
brow" is a valid criterion for recognizing

30 See, for example, information from a private law firm at http://www.mwe.com/area/int-arb.htm.

protection, and what criteria define "fair use."
For patents, remember that a product must have
been patented in the jurisdiction in question.
Also, interpretations of patentability of software
and software algorithms varies greatly, and in
some cases, software patents have been granted
even when the laws appear to prohibit this.

The situation for database protection is
especially polarized. Under the laws complying
with the1996 EU Directorate, all EU member
countries have strong protection. While similar
legislation is being considered elsewhere, the
strong opposition to this type of protection
suggests that many countries will enact less
stringent protection.

Whereas one might wish for uniform, globally
applicable policies, it should be borne in mind
that this diversity reflects fundamental differences
in cultures, histories, and economic policies.
Treaties promoting globalization of trade appear
to be reducing some of these differences, but it is
not clear how far reaching these reforms will be.
Faced with this panorama of uncertainties, written
work plans and contracts again remain the safest
mechanisms for clarifying ownership and allowed
use of intellectual property.

International projects involving spatial
information face additional challenges.
Representations of international boundaries are
potentially contentious, and representing a
boundary in an unacceptable way can have
serious repercussions, especially for employees of
governments involved in disputes. Besides
attempting to represent boundaries as correctly as

possible, researchers may need to indicate certain
boundary positions as "disputed" or "uncertain."
The International Boundaries Research Unit
maintains a searchable database on boundaries.31
To address this issue, maps or data sets can include
relevant disclaimers (see box below).

Researchers should also determine whether
particular activities are allowed, especially when
involving work near conflict areas. Large-scale
maps may be considered "military secrets" and
use of GPS units may be restricted in some areas.
The USA has recently tried to control distribution
of very high-resolution commercial satellite
imagery of regions where its military forces are
active (Nardon 2002).

Sample Disclaimer for Boundaries

The designations employed and the
presentation of the material on this map do
not imply the expression of any opinion
whatsoever on the part of[name of
institution] or contributory organizations and
institutes concerning the legal status of any
country territory city or area, or of its
authorities, or concerning the delimitation of
its frontiers or boundaries.

See http://www-ibru.dur.ac.uk/for access to the database and an extensive set of documents and links relating to international


Chapter 10. Public Sector Information

GIS applications in agriculture and natural
resource management rely heavily on data and
software tools from public sector institutions.
Policies toward access to information held by
governments vary greatly, however, both among
nations and among federated states such as in the
USA (Table 3). Public institutions, including
international organizations, also vary greatly in
their approaches to information sharing.

Recall that "public domain" is a legal status-
anything in the public domain is copyright free.
Public sector information is not necessarily in the
public domain, and in some countries or legal
jurisdictions, is not even easily accessible. Access to
public sector information may be governed by
constitutional law or may be an inherent element
of the information culture permeating

The Freedom of Information Act (FolA 1996)
of the USA is often held up as a model for other
countries. Basic provisions are that federal
institutions must provide information to anyone
who requests it, with logical exceptions to protect
confidentiality and national security. The
information has to be provided within a
reasonable time period, and the provider can only
recover costs of copying the information, not the
cost of acquisition. FolA does permit specific
exceptions to be applied, which had direct impact
on the agricultural and environmental research
communities some years ago when low-cost
access to Landsat imagery was replaced by fees
many times higher than previously charged.
Although users of spatial information have
benefited greatly from FolA, a major driving force
behind FolA was a desire to identify and expose
abuses of federal power (e.g., in relation to civil
and human rights).

Table 3. Examples of data use or ownership policies of mapping or data agencies in various countries.

Country Agency Cost Uses allowed

Denmark Danish Data Archive No cost For non-commericial use. May not be
redistributed.May only be used for stated
purpose after which data must be returned
or destroyed.

Ireland Ordnance Survey Ireland Varies with intended use Uses are licensed according to categories of
activities (e.g., for architects, solicitors,
Internet, etc.)

Mexico Instituto Nacional de Estadistica, Reproduction for commercial gain ("fines de
Geografia e Informatica (INEGI) Cost recovery is allowed lucro") is prohibited in statement on CD ROM liners.

New Zealand Crown Research Institutes Recovery of direct costs is allowed Open, except where use is not to the benefit of
New Zealand

UK Ordinance Survey Cost recovery is allowed Uses are licensed according to categories of

USA United States Geological Reproduction and handling Unlimited
Survey (USGS)

A wide-ranging debate on access to and
exploitation of public sector information is
underway in Europe. A key problem is in defining
what constitutes the public sector and what is
public sector information (Longhorn 2002). Due
to the wide variation in types of national
government and in national information cultures,
and recognizing the practical problems posed by
lack of information infrastructure in many
countries, it may never be possible to agree on
definitions acceptable to all.

Note also that the private sector is becoming
increasing involved in collecting, processing, and
disseminating what many consider to be
traditional public sector data, including scientific
data (Linne 2000). However, price and end-user
cost are not due to IP systems, but rather to the
policies of governments, industry, and many

research and educational institutions, both in the
public and private sectors. All information has a
cost and someone must bear this cost, or the
information will not be collected. The debate
regarding access to public sector information is
who should bear this cost and how (Weiss 2002).

Some scientific research organizations are
now setting more restrictive policies for
disseminating research results, invoking the legal
instrument of copyright protection. There is
currently a wide-ranging debate on the issue of
science publishing, wherein certain policies now
restrict dissemination of information to the
research community, thus impeding peer review,
replication of experimental results, and the ability
of other scientists to incorporate research
findings in their own projects or fields in building
on prior results.



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Annex. Abbreviated Recommended Guidelines

for Managing Spatial Information IP

Detailed checklists will be available at the CAS web site (www.cgiar.org/isnar/cas).
1. Keep a laboratory or project note book that documents:
Data sources, data created, enhancements to data.
Software used or created.
Any transfers of data or software among research groups or institutions.
The notebook should indicate who did what when and be updated and backed up
2. Read the license agreements when acquiring software packages or access to data sources.
3. Maintain a physical file containing all data and software transfer agreements.
4. Maintain metadata with references to all data and software transfer agreements.
5. Use a data or software transfer agreement to document terms of any interchange,
checking that the terms in the distribution agreement do not conflict with other licenses
(e.g., for data from third parties).
6. Provide secure storage for all data (primary and secondary) for a minimum period of 10
years following closure of a project (according to several codes of good practice).
7. If major data sets may need to be traced over time, consider including "digital
watermarks" that will allow the owner to identify the data even after it has been
extensively modified.
8. When dealing with data that include personal information (e.g., names of individuals or
their land holdings), explain the purpose of collecting the data to the affected individuals
and establish a clear policy for disposition of the data at the end of the project.
Alternatively, manage the data in such a way that identities of individuals are not recorded
(e.g., by assigning identification numbers or by aggregating to a level above the individual,
farm or whatever).
9. In creating names for products, especially software, conduct a search for similar already
trademarked names.

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