Chapter 8
From The SDI Cookbook
Contents |
Chapter Eight: Legal and Economic Policy
Editor: Roger Longhorn, Info-Dynamics Research Associates Ltd, UK and Belgium, co-Chair, GSDI Association Legal & Socioeconomic Working Group ral {[at]} alum.mit.edu
Introduction
Several legal issues arise when implementing information infrastructures, including SDIs. Typical are intellectual property rights (IPR) governing access to and use of spatial data, which includes copyright, patenting of software and algorithms, and database protection, in those jurisdictions where such protection exists in law. Privacy regulations if spatial data is used to identify individuals, commercial confidentiality and liability issues also arise. This chapter also reviews cost-benefit analysis (CBA) methodologies that have been used to justify the cost of creating SDIs, at sector, national and regional levels and addresses some of the issues surrounding use of different methodologies.
Context and Rationale
Intellectual Property Rights
This section introduces the reader to the main intellectual property rights (IPR) issues, including copyright, legal protection of databases, and patents for algorithms or methodologies that impact on spatial data use.
Copyright
Review of copyright law goes here. The focus is on how these may impact on SDI stakeholders.
Legal Protection of Databases
Review of the European Database Protection regulations (now in effect in 27 European states)
Patents
Short review of patents, especially for methods and algorithms, goes here, along with examples of important patents that have been issued relating to spatial data. The focus is on how these may impact on SDI stakeholders.
Other Legal Issues
Protecting Personal Privacy
Protecting Confidentiality
Liability
Nearly any human endeavour 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 protections.
Liability falls into three broad categories (Westell 1999a, 1999c; Klinkenberg, 1997):
1. Contract liability (or breach of contract), including breach of express and implied warranties.
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.
Liability relating to spatial information raises several 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.
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.
Liability in Cadastral Surveying
Another area in which liability issues appear regards spatial data used for legal purposes, such as in cadastral surveys, as shown in this extract from “European requirements for cadastral surveyor activities” (pp 13 – 14) produced by EuroGeographics [www.eurogeographics.org], the European Council of Geodetic Surveyors (CLGE) [www.clge.eu], and Geometer Europas (GE) [www.geometer-europas.eu] – figures in Table 1 below are based on respondents to a study questionnaire, returned from 25 European countries.
[begins]
The majority of cadastral surveyors in Europe are fully responsible for any mistakes they make in their work, yet only very few countries have clear rules or mechanisms for third party reimbursement or compensation for the acknowledged loss arising out of cadastral surveyor’s activities. Therefore the liability of the cadastral surveyor limits itself to sanctions on their level of qualification rather than financial compensation for losses suffered by the customer.
Many surveyors rely upon the results of litigation in the civil courts between the surveyors and clients to provide a solution for negligence instead of purchasing Professional Indemnity Insurance (PII).
When cadastral surveyors are employed by an NMCA their liability is limited to public servant duty. In these cases the State is liable for the cadastral data maintained by the Agency.
In the countries, which replied with a ‘no’ response (the surveyor is not responsible for the quality of cadastral data), a shared responsibility exists. The organisation (State) is responsible externally for the work provided by the cadastral surveyor, although the activity itself (validation of cadastral data) is the responsibility of the professionalism of the cadastral surveyor.
The duration of the surveyor’s liability for the cadastral documents produced can differ, as shown in Table 1, which also highlights that the liability of cadastral surveyors is not well defined in a number of countries. Almost half of the respondents (46 per cent) indicated that there is no maximum period for the liability of cadastral surveyors, while 24 per cent mentioned a lifetime responsibility, which sounds equivocal and might be questioned various courts.
Table 1. Period during which cadastral surveyors are liable for the produced cadastral documents (data)
Time Period Percentage of respondents
30 years 12%
10 years 6%
5 years 12%
Lifetime 24%
Not defined 46%
[ends]
Licensing
Introduction
The following summary of license considerations may help SDI stakeholders realise 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 2001):
• 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 redistributed.
• 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 control.
GNU Public Licenses
To "copyleft" a program, as opposed to claiming "copyright", 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 movement.
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 below) 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.
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 version.
This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.
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.
Creative Commons Licenses
Open Source and Open Geodata
SDI Economics
In this section covering the economics of SDI implementation, we look primarily at cost-benefit analysis (CBA) methodologies that may be applicable to large information infrastructure projects or initiatives, then at the results of applying such methodologies to SDI implementation specifically, at national and regional (trans-national) level. Some of the earliest studies were conducted in Australia and New Zealand from 1990 onwards.
Cost-Benefit Analysis Methodologies
Several cost-benefit analysis (CBA) methodolodies exist for examining projects and programmes. Finding a suitable methodology for investingating the cost-benefit of an entire information infrastructure is more problematic.
Different CBA methodologies are applied in different circumstances, addressing the inherent differences that exist across myriad types of project or programme goals and implementation requirements. A common theme in most such analyses is that costs for implementation are usually much easier to determine or estimate accurately than are matching benefits from the goals, especially where these may be important, but not easily quantifiable in monetary terms.
Historical Cost-Benefit Studies
SDI-related cost-benefit analysis (CBA) studies have been conducted since as early as 1990 - in Australia and New Zealand. Yet most nations that are embarked on SDI implementation programmes or in the process of adopting SDI strategies have not conducted full CBA studies or have investigated only specific components of an SDI, such as implementing a national geoportal. In some cases, lack of a formal CBA has been used as an excuse to proceed with full implementation.
Financing the SDI
Very few countries have provided additional funding from the federal treasury specifically for implementing a national SDI. Two exceptions are the Netherlands and Canada. In this section, we look at current thinking on how to finance SDI development, why the financing decision is not as straight forward as some might think, and the impact on speed of implementation where direct financing has been made available.
