Government geographic data licence agreements are the written expression of a contractual relationship entered into by government in support of overarching government mandates and policy objectives. The terms governing government geographic data licence agreements find their justification in the data dissemination objectives established by government in support of the same overarching mandates and policy objectives.
The subject-matter of government geographic data licence agreements is intellectual property. A basic understanding of intellectual property, and perhaps more precisely of copyright law, is useful to appreciate the legal intricacies of government geographic data licence agreements.
4.1.1 Intellectual Property
Intellectual property can be described as property that consists of assets that can be perceived or comprehended, but which cannot be felt or touched. It refers to intangible property to which attaches economic rights that provide for exclusivity of exploitation recognized by law. It consists of products of the inventive human mind, and includes the distinct fields of patents, copyright, trademarks, trade secrets, confidential information and similar rights. These offer protection over such things as inventions, original expression in literary, artistic, musical, dramatic works and compilations, words or symbols that distinguish the source or quality of goods or services, and non public information.
Of the various types of intellectual property protection afforded in Canada, copyright is of the most relevance to government geographic data.
4.1.2. Object of Copyright Law
The central object of copyright law is to grant authors exclusive rights of exploitation in their original literary, artistic, dramatic, musical works and compilations thereof or compilations of data, as well as rights to ensure that their work is properly credited and not changed in any way that harms the author’s reputation.
The Copyright Act protects original literary, dramatic, artistic and musical works, compilations thereof and compilations resulting from the selection and arrangement of data. Copyright does not protect the facts contained in such works, but rather their expression [10] . Literary works, artistic works and compilations (being the categories of works most pertinent to geographic data) that attract copyright protection include original books, pamphlets and other writings, illustrations, sketches, topography, drawings, maps, charts, plans, tables and compilations thereof. Original depictions of road networks, of municipal boundaries, of wildlife habitats and ocean disturbances, for instance, are proper subject-matter of copyright.
For a work to benefit from copyright protection, it must be original. An original work under Canadian law is one that originates from the author and is not copied from another work, and must be the product of the author’s exercise of skill and judgment. Skill refers to the use of one’s knowledge, developed aptitude or practiced ability in producing the work. Judgment is evidenced by the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. Street directories, tax tables, actuarial tables, accounting forms, agendas and tables contained in a diary, geographical maps and plans that are not copies of existing works and that are produced using skill and judgment have been found to be original works attracting copyright protection.
The exercise of skill and judgment required to produce the work must not however be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce ‘another’ work would be too trivial so as to confer upon this other work copyright protection. Similarly, the mere mechanical or computerized juxtaposition of a large number of cities to an outline map may not constitute a work involving the originality or skill and judgment necessary to sustain a copyright.
As stated by the Supreme Court of Canada in CCH Canadian Ltd. v. LSUC:
It is, I think, an elementary principle of copyright law that an author has no copyright in ideas but only in his expression of them…The ideas are public property, the literary work is his own. [11]
Copyright protects the form and expression of an idea, not the idea itself. It is on this basis that there can be no copyright in news, concepts, facts, procedures, schemes or information, regardless of the time and labour expended to conceive, generate or collect them.
The exclusive rights conferred to the owner of copyright include the sole right to reproduce his work in the original form or in a derived form. The Copyright Act affords this protection in the introductory paragraph of s. 3(1), referring to the sole right to ‘reproduce the work or any substantial part thereof in any material form whatsoever’ as well as in certain sub-paragraphs of the same section.
What will constitute a substantial taking of a copyrighted work is assessed from both a quantitative and qualitative perspective and is, in all cases, a question of fact. Courts will however generally look at whether the ‘essence of the work’ has been appropriated when adjudicating whether a derived work reproduced a substantial part of an original work (thereby infringing on the copyright owner’s rights), as well as:
Arguably, and again based on the facts of each case, it may be that an unauthorized digitization by a third party of a copyrighted government chart or map, to produce 'another work', could be found to constitute a taking of a substantial part of the copyrighted work, and thus to constitute copyright infringement.
The right of the owner of copyright in his work is absolute. The improvement made by the person who takes a copyrighted work is immaterial. If a substantial part of a copyrighted work is taken without authorization, then there is infringement.
A party who wishes to produce a work derived from pre-existing copyrighted material must obtain the consent of the owner of copyright in the original work(s). In the absence of such consent, the derived work may infringe the copyright owner’s rights. Consent may be obtained via permission or a licence agreement.
4.1.3 Raw Data is not Protected under the Copyright Act
As stated previously, facts, ideas, concepts, numbers, procedures, schemes and other types of raw data, alone and by themselves, are not protected under the Copyright Act, regardless of the time and labour expended to conceive, generate or collect them [12] .
For example, the quantification of a particular fish population in a given geographical area, arrived at through the combined use of highly sophisticated technology and human skill, is a fact that is not protected under the Copyright Act, notwithstanding the effort and resources allocated to arrive at such number. What is protected is the original expression of that fact, which may take the form of an original (i.e. that emanates from the author and is not copied from another work) literary work (a report, a letter, a memo, etc.) or artistic work (a graph, a map, a chart, etc.), as long as its production required skill and judgment.
Similarly, roads and distances, boundaries of a city, town or village, and topographical information are not protected by copyright. Copyright will subsist however in the depiction, representation or expression of such roads, distances, boundaries and topographical information, provided they are original (i.e that emanates from the author and is not copied from another work) and are the result of skill and judgment.
Data sets, insofar as they constitute an original arrangement of literary or artistic works, or a work resulting from an original selection or arrangement of data, qualify as ‘compilations’ under the Copyright Act and thus benefit from copyright protection, provided: 1) they are original in the sense that they originate from the author and are not copied from another work; and 2) there is some minimal degree of skill and judgment in the overall selection or arrangement of the data comprising the data sets. The exercise of skill and judgment must not, however, be so trivial that it could be characterized as a mechanical exercise. Where the only originality in a data set is in the mere order in which the various items are placed, there may not be sufficient originality for copyright to subsist. The skill and judgment in selecting and arranging the data comprising the data sets must impart some quality or character that the raw material did not possess.
Government geographic data sets may consist of an arrangement of raw data such as facts, bare statistics, characters, symbols or other similar data; or may be comprised, in whole or in part, of other copyrighted works.
Raw data and other non-copyrighted subject-matter may be collected, compiled and expressed in a data set free from any constraints on use. However, the creation of data sets comprising, in whole or in part, of third party copyrighted works may be found to infringe the copyright owners’ exclusive rights if their prior approval has not been secured. Hence, care must be exercised in the creation of data sets that include other copyrighted works. Securing appropriate authority from the copyright owner must precede the making of such data sets. [13]
The following illustration depicts the particularities and associated legal risk of compilations. Generally, if source data are derived from copyrighted works, and the resulting work has an objective similarity to the source from which it derives to the point that it may be concluded that the "essence of the work" was appropriated, permission for use must be obtained. Permission is habitually obtained and evidenced in a licence agreement.
In legal terms, a licence agreement is a legally binding contract, enforceable as against its signatories. It is subject to the legal rigors that apply to the formation of contracts, in addition to the statutory constraints and judicial pronouncements pertaining to contracts in general.
A licence agreement will, by its very nature, contain a licence grant. Simply put, a licence grant is a permission given by the owner of property (the “licensor”) to someone else (the “licensee”) allowing that person to use the owner’s property free from legal recourse.
There are basically three (3) categories of licence grants. The first is an exclusive licence grant, which gives to the licensee the right to exercise the licensed rights at the exclusion of others, including the licensor. The second is a sole licence grant, being one by which the licensor agrees that it will not grant to any third party the same rights as those granted to the licensee. A sole licence grant does not usually limit the licensor’s rights to use the licensed property. The third is a non-exclusive licence grant, by which the licensor reserves to itself the right to exercise the licensed rights and the right to grant an unlimited number of licence grants over the same licensed rights.
Government departments and agencies that produce and/or acquire geographic data sets are directed, through various policies and legislative mandates, to make such intellectual property available so as to generate further innovation. Access to Crown-owned or Crown-licensed intellectual property is granted to users through licence agreements. Government licence agreements are meant to crystallize and structure a particular contractual relationship, and, in support of particular policy imperatives, may contain little or numerous restrictions on the use that may be made by the licensee of the subject-matter of the licence agreement.
Government departments and agencies are however limited in the manner in which they may license geographic data sets they create or in respect of which they have licensed rights.
It is important to have an appreciation of the theory and history of Crown law, as they shed light on the constraints imposed on government’s current data dissemination and licensing practices.
The legal system in Canada recognizes the Crown [14] as a legal person, capable of acquiring rights and liabilities under common law or statute law, capable of suing and being sued, and bound by the decisions of courts and other properly constituted tribunals. However, the Crown, although a legal person, is not in all instances subject to the same laws as other legal persons, namely corporations and private individuals. Furthermore, the Crown enjoys extensive powers that are not available to subjects (e.g., to collect taxes, to maintain an army, to enact and administer the laws which regulate and provide state services in a modern society), and certain privileges or exemptions from the general law of the land.
The Crown enjoys powers privileges and exemptions from the general law of the land |
The Crown also derives powers from the common law referred to as “prerogatives”, which are based on the inherent power of the monarch dating back to the Middle Ages. Although the prerogative powers of the Crown have been vastly narrowed over time, they remain significant and real. The main areas in which Crown prerogative has survived and remains relevant today include:
Notwithstanding these rights to which the Crown is entitled under prerogative, the Crown is limited in how it may deal with its property rights.
The Crown, in general, has the same rights under the law as individuals and corporations to acquire and hold property, including intellectual property. The Crown acquires intellectual property mainly through four (4) means.
Firstly, the Crown may, pursuant to the Copyright Act [16] , acquire ownership of the copyright in works such as original data sets, where the work was produced by Crown employees as part of their duties, or where the work was prepared or published by or under the direction or control of the Crown [17] .
The Crown may also acquire rights in intellectual property consisting of inventions pursuant to the Public Servants Inventions Act [18] in instances where the inventions are created by public servants while:
Thirdly, the Treasury Board policy Title to Intellectual Property Arising Under Crown Procurement Contracts [19] allows the Crown, in limited circumstances, to acquire intellectual property rights in works completed by contractors, such as when the deliverable under the contract consists of material subject to copyright. The exception, however, does not apply to computer software and related documentation, the intellectual property rights in which is to vest with the contractor.
And lastly, the Crown may also acquire intellectual property rights through collaborative arrangements entered into notably with the private sector and academia and, to some extent, through certain type of transfer payments arrangements. Treasury Board policies and guidelines applicable to such arrangements should be consulted,. They can be found on the Treasury Board website. Legal counsel should also be consulted to ascertain the propriety of the acquisition of intellectual property rights.
Disposition of Crown IP reuires compliance with key legislation and Treasury Board Policy |
[TO COMPLETE WITH INPUT FROM CCOG WORKING GROUP]