The dissemination of government geographic data is profoundly rooted in government overarching policy objectives of access to government information. It is an intrinsic and vital element of a modern, representative government in an innovation-driven economy.
Government geographic data dissemination policy upholds and sustains key strategic governmental orientations. Manifested through various initiatives of departments and agencies, particularly in the development of distribution models, government geographic data dissemination policy plays a significant role in support of the attainment of government objectives and in the fulfillment of legislative mandates. Distribution models are developed to realize the objectives of government geographic data dissemination policy, and licence agreements are entered into to crystallize the fundamental premises of the distribution models and to evidence the creation of a legal relationship in a legally binding instrument.
The illustration below depicts the interplay between dissemination policy, distribution models and licence agreements.
Over the period 2002-04, the GeoConnections Policy Node superintended the development of three distribution models for the dissemination of government geographic data, as well as the development of standard licence agreements in support of each of these distribution models. This initiative was driven by the recognition that current government geographic data distribution models need to be simplified to achieve more effective, efficient and equitable access to and delivery of government-produced or held geographic data.
The following sections of this chapter detail the rationale for each distribution model within an integrated framework for the dissemination and licensing of government geographic data, as well as provide extensive commentary on recommended approaches to key data distribution issues, and standard clauses for use in licence agreements.
The integrated framework for the dissemination and licensing of government geographic data advocates the use of three (3) data distribution models for government geographic data, articulated in specific licence agreements.
The first model, expressed in what is commonly referred to as an unrestricted use licence agreement, promotes wide use and re-use of the licensed geographical data. It contains few restrictions on how the data may be used and specifically allows its further distribution.
An unrestricted use license agreement promotes wide use and further distribution of government geographic data. |
The second model provides for certain rights to the geographic data being licensed to the licensee, except distribution rights. Terms and conditions governing this model are contained in an end-user licence agreement.
The end-use model is appropriate in instances where the producer of government geographic data wishes to grant access to its data while retaining control over the number of users and the manner in which it is used. It allows users to access government geographic data and use it to create innovative solutions, products or services, in a way, however, that does not jeopardize the integrity of the government’s geographic data, or allow its further distribution.
An end-user license agreement supports accessibility to government geographic license,with restrictions on redistribution. |
The core objective of the end-user model is to allow use of government geographic data, while preventing downstream distribution.
Restrictions contained in an end-user licence agreement are typically limited to the licensed data. They impact on derived products only insofar as precluding the distribution of derived products which contain the originally licensed data in its entirety or part(s) thereof, for uses other than the licensee’s uses [21] .
The standard end-user licence agreement found in Appendix B illustrates the two pivotal prongs of an end-use licence agreement, being wide access of the licensed data, with restrictions on further distribution.
In general, creators of government geographic data are not sufficiently resourced to actively engage in the effective and vigorous promotion, marketing and ultimate distribution of their data. In order to effect the wider use and benefit of such data, relationships can be struck with distributors, whose strengths often lie in their capacity to integrate licensed data and/or services into products with greater market demand, and to capitalize on this demand through wider distribution channels [22] . The third model used within the integrated framework for the dissemination and licensing of government geographic data thus involves government geographic data producers entering into distribution arrangements with established distributors.
The distributor model is appropriate where the stated objective of the government geographic data- producing department or agency is to promote wide use of its data in value-added applications through a mechanism that also supports:
Designing an integrated framework for the dissemination and licensing of government geographic data requires building upon a common base, a common understanding of key concepts that will direct licensing practices.
Extensive, broad-based consultations have led to the development of common approaches to key issues on:
From a federal perspective, the primary objectives of government geographic data distribution initiatives must be examined against the backdrop of the Government of Canada’s overall and overarching objective of promoting economic growth and job creation in Canada through innovation. [23] Science-based governmental departments and laboratories are directed, through various policies and legislative mandates, to make their intellectual property available so as to generate further innovation. Access to government intellectual property is granted through licence agreements, which, in support of particular dissemination policy imperatives, may contain little or numerous restrictions on the use that may be made by the licensee of the licensed government geographic data.
To bridle the ability of the private and public sectors to further develop licensed government geographic data by imposing restrictions on the ability to enhance the licensed data and commercialize those enhancements may arguably curtail government objectives of encouraging and supporting an innovation-driven economy. Accordingly, the integrated framework employs a straightforward approach with respect to derived products.
A derived product is one that incorporates any of the licensed data, or which uses the licensed data as input to the creation of something new. The method of incorporating the licensed data or of using it to "derive" soemthing else from it is not at issue. The licensed data may be incorporated through automated data transfer or transformation, hand digitizing, manual copying, etc.
Licensees of government geographic data should generally have the right to develop, manufacture and distribute commercially derived products they have or have caused to be created, which incorporate or derive from the licensed geographic data. Such is the approach that has been taken in respect of the unrestricted model and the distributor distribution model set out within the integrated framework.
End-use licensees should also generally have the right to improve upon the licensed government geographic data and create derived products. However, given the rationale underlying the end-use model and its primary goal of control over the further distribution and use of the licensed geographic data, derived products containing the originally licensed data, in whole or in part, should not be permitted. Derived products not containing any of the originally licensed data may, under the end-use model, be produced and further distributed.
The standard licence agreements found in Appendices A, B and C detail this approach to derived products.
Mindful of the government’s objective to spur innovation by making government intellectual property accessible, the approach advocated permits licensees to further improve and make modifications to licensed government data; and to retain the intellectual property rights in such modifications. Licensees who make modifications to the licensed government data also bear responsibility for such modifications.
Clauses reflecting this approach are contained in the annexed standard licence agreements.
An approach to managing risk has also been developed for widespread implementation within the integrated framework.
The provision by government of programs and services necessarily entails some level of risk. However, modern comptrollership initiatives have developed sound approaches to managing such risk, including legal risk.
The possibility of liability attaching to a producer of government geographic data as a consequence of its dissemination of government geographic data, either as a result of a legal proceeding brought by a licensee or a third party, is a genuine concern. There are, however, mechanisms to manage such risks, namely through contractual indemnities and through the inclusion of contractual provisions disclaiming the fitness or accuracy of the licensed data.
A representation is a statement or assertion made by one party during negotiations on some matter which, often times, has had a bearing on the other party’s decision to enter into the agreement. A warranty, on the other hand, is a statement or representation intended to be a binding covenant on the part of the party who makes it.
Some representations and warranties are generic to all intellectual property licence agreements and apply to both parties. They commonly include representations and warranties that:
Since most representations and warranties in intellectual property licences go to the existence and strength of the licensed intellectual property, they are usually requested of the licensor [24] . A government department or agency, as licensor, may assert that it owns the licensed intellectual property or at least has the ability to grant the licensed rights which the licence purports to grant, provided such, in fact, has been established. However, it should refrain from providing representations and warranties on the accuracy, usefulness, enforceability and validity rights; and should specifically disclaim any implied warranty of merchantability or fitness for a particular purpose.
This common approach to managing legal risk associated with the licensing of government geographic data is expressed in the appended standard licence agreements.
It is appropriate and consistent with both the rationale underlying the dissemination of government geographic data and federal Treasury Board policy that the licensee acknowledge the appropriate department or agency as the source of the licensed geographic data and incorporate metadata supplied with the said data in any downstream distribution [25] .
The approach advocated and expressed in the standard licence agreements is more fully described in section 6.5 below.
Fees and royalties are, generally speaking, the main benefit to any licensor, including government departments and agencies, in a licence agreement.
Fees and royalties schemes typically take one (1) of three (3) forms:
All depends, essentially, on the manner in which the licensed intellectual property is to be exploited;
There is no magic formula concerning the appropriate amount of fees, royalties or the royalty rates to be charged to a licensee. Arguably, an appropriate amount is what the licensee is willing to pay, given the practice in the relevant industry and the value of the intellectual property in the marketplace.
In recognition of departments and agencies’ varying mandates and cost-recovery policies and targets, it is suggested that provisions for fees and royalties schemes be set out in a Schedule to the licence agreements. The appended standard licence agreements demonstrate how this may be done.
“Duration” or “term of agreement” relates to the period of time during which the licence persists. The duration may be based on a specific length of time (e.g. from June 1, 2003 to May 31, 2004) or may be based upon the payment of yearly access fees.
The term is to be defined with an effective date for its commencement and a termination date, the latter to be made subject to other provisions in the licence agreement providing for early termination.
The term of a licence grant usually coincides with the term of the licence agreement. Given the impracticality and inefficiencies associated with fixed terms that do not renew automatically (i.e. tracking terms of a multitude of licence agreements, renegotiating on a piece-meal basis, etc), it is suggested that, in the context of the integrated framework for the dissemination and licensing of government geographic data, terms renew automatically, provided the licensee is not in breach of its obligations under the agreement (e.g., payment of fees and royalties). [26]
In the context of a distributor arrangement, particular attention must be paid to the length of the appointment of the distributor and the rights granted to it. For economic reasons, distributors will be particularly concerned with the duration of the distributor agreement (wanting longer terms) and the availability of renewal terms.
In law, a person cannot grant or sub-licence that which it does not have. A distributor cannot therefore grant to a third party a licence the term of which exceeds the term of the distributor’s own licence. Distributors will therefore be looking for terms the length of which will enable them to actively promote the data licensed to them, seek licensees and enter into profitable arrangements with them.
This approach in respect of the term is reflected in the appended standard licence agreements.
It is recommended in the context of the integrated framework for the dissemination and licensing of government geographic data that government departments or agencies, as licensors, be given the right to terminate the agreement, for cause, either automatically or upon notice to the licensee. Typical events that may trigger the right of government departments or agencies (again as licensor) to immediately terminate an agreement include:
In addition, licence agreements usually contain a provision allowing the licensee time to cure a default which has been brought to the licensee’s attention by the government department or agency (as licensor), failing which the agreement may be terminated, without further notice.
In general, the licensee should be able to terminate an agreement with or without cause on notice to the licensor. Such termination should not, however, affect those obligations meant to survive termination. Termination may also be concluded upon mutual agreement of the licensor and licensee.
Clauses that typically survive termination or expiration of a licence agreement include:
This common approach is reflected in the appended standard licence agreements.
Discussions with producers and distributors of government geographic data revealed two variants to the distributor model discussed in section 5.2 above which merit attention: the tertiary model; and the distributor end-user model.
Under the tertiary model, a producer of government geographic data enters into a licence agreement with a distributor for the further distribution of its geographic data, or that to which the government department or agency has licensed rights. To mitigate the legal risks associated with the distribution of government geographic data via a distributor, the producer of the government geographic data provides the geographic data to the distributor on an “as is” basis, with no representations or warranties as to its accuracy, completeness, usefulness, etc. The licence agreement between the distributor and the producer of government geographic data allows the distributor to license the government geographic data to third parties (the “licensees”) on the same terms as those prescribed in the distributor licence agreement. Accordingly, government geographic data licensed by the distributor to licensees is done on an “as is” basis, without any representation or warranties as to the accuracy, completeness, usefulness, etc. of the licensed data. Licensees, in turn, are authorized by the terms of their licence agreement with the distributor to enter into sub-licences with other third parties (the “sub-licensees”) on the same terms as those contained in their licence agreement with the distributor. The tertiary model is illustrated in the diagram below:
The tertiary model permits an expanded market penetration of the licensed government geogrpahic data, especially with further value-added data integration or service delivery, a potential increase in revenues for the distributor, and greater potential for the recovery of government data distribution costs.
While meeting the first objective of promoting the wide distribution of government data, the tertiary model has the potential for a certain loss of control over the licensing process because of the extended chain of distribution that can be created under such a model. It has no means of ensuring, for instance, that provisions are included in the downstream licences. Neither does it have the means to ensure that the provisions regarding cost-recovery and reporting obligations contained in the agreement between the distributor and the producer of the licensed government geographical data are perpetuated and optimized in downstream licences. In most cases however, the extension of the distribution chain does result in the increased use and value of government geographic information, and with increased potential for revenue flows for all parties.
The distributor end-user model operates in the same way as the tertiary model, with government geographic data provided to a distributor for further distribution, on an “as is” basis, with no representations or warranties as to its accuracy, completeness, usefulness, etc. However, the distributor end-user model only authorizes distribution by the distributor to one or more licensees as end-users. Distribution downstream the distributor’s licensees is expressly prohibited under this distribution model.
The distributor end-user model is illustrated below:
Under the distributor end-user model, the potential use and value of government geographic data may be slightly more constrained as a result of the possible truncation of the distribution chain, however, the existence of a single distribution source strengthens the capacity to monitor downstream licences and assessment of revenue potential.
Both the Tertiary and Distributor End-User Models are workable and feasible distribution models that meet the underlying rationale of dissemination of government geographic data. While there may be some intricacies particular to each model, these can usually be addressed satisfactorily in contractual provisions.