jim sparks and dave estes 8 may 2012. 1. to increase awareness of statutes, case law, ordinances,...

Legalities Of GISJim Sparks and Dave Estes

8 May 2012

1. To increase awareness of statutes, case law, ordinances, and legal opinions related to GIS in Indiana and across the nation.

2. To encourage and promote discussion of how legal issues affect GIS in Indiana

Purpose of This Presentation

Are GIS data public records? Can a government agency charge for GIS

data? Can a government agency copyright,

license, or restrict the downstream use of GIS data?

Can GIS data be exempt from disclosure?

Where the rubber meets the road…

Federal and State Statutes

What is copyright? What are the benefits of copyright? What does copyright protect? How is a copyright different from a

patent or a trademark? When is my work protected? Do I have to register with your office to

be protected?

U.S. Copyright

Source: http://www.copyright.gov/help/faq/

What types of works are protected by copyright?

What is not protected by copyright?

Can GIS data be copyrighted?

U.S. Copyright

Source: http://www.teachingcopyright.org/handout/copyright-faq

Ensures public access to U.S. government records Presumption of disclosure Enforceable in court Applies only to federal agencies Each state has its own public access laws

The Freedom of Information Act (FOIA)

“Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.”

The Indiana Court of Appeals has added to this definition “any material created for or on behalf of a public agency.” Knightstown Banner, LLC v. Town of Knightstown, 838 N.E.2d 1127 (Ind. Ct. App. 2005).

"Electronic map" means copyrighted data provided by a public agency from an electronic geographic information system.

An agency must make reasonable efforts to provide a copy of electronic data to a person if the medium requested is compatible with the agency’s system.

Access To Public Records Act (APRA) Ind. Code 5-14-3

Declared confidential by state statute Required to be kept confidential by federal

law Declared confidential by rule adopted by

Indiana supreme court (Administrative Rule 9)

Social security number contained in the records of a public agency

12 Exemptions to disclosure (I.C. § 5-14-3-4)

Attorney work product Personnel file information, except for

information that must be disclosed Inter or intra-agency deliberative material,

which is expression of opinion and is communicated for the purpose of decision making

23 Discretionary Exemptions (I.C. § 5-14-3-4(b))

(11) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it and portions of electronic maps entrusted to a public agency by a utility.

23 Discretionary Exemptions (I.C. § 5-14-3-4)

        (19) A record or a part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety by exposing a vulnerability to terrorist attack.

23 Discretionary Exemptions (I.C. § 5-14-3-4)

Complaint alleged that the City of Berne Stormwater Utility Board (“Board”) violated the APRA by failing to provide a copy of an electronic map. July 22, 2005 (Public Access Counselor Advisory Opinion)

Board’s reasons for not providing data:◦ It was expensive to create◦ Could pose a threat to public safety◦ Contains data entrusted to a public agency by a

utility

Clarification: Formal Complaint 05-FC-124

“APRA is to be liberally construed.” “It is clear that information from an electronic

map is a public record” “If an agency denies the disclosure of a record

or a part of a record the agency or the counterterrorism and security council shall provide a general description of the record being withheld and of how disclosure of the record would have a reasonable likelihood of threatening the public safety. IC 5-14-3-9(d).”

PAC Analysis of 05-FC-124

“Merely stating that the electronic map includes data regarding utilities does not bring the record within section 4(b)(11).”

“…the Board has not provided the explanation required under IC 5-14-3-9(d), which states how disclosure of the record would have a reasonable likelihood of threatening the public safety.”

“For the foregoing reasons, I find that the City of Berne Stormwater Utility Board did not comply with the Access to Public Records Act.”

www.in.gov/pac

PAC Analysis

Local agencies may charge only the fee on a schedule adopted by the fiscal body.

May not exceed the actual cost for providing a copy of the public record.

Actual cost is the cost of the paper and per page cost for use of the equipment.

APRA’s general provisions on fees are superseded by a specific statute allowing higher fee.

APRA: Fees for providing copies of public records

(j) A public agency may charge a fee for providing an electronic map that is based upon a reasonable percentage of the agency's direct cost of maintaining, upgrading, and enhancing the electronic map plus direct costs.

(k) The fee may be waived for non-commercial uses, including      (1) Public agency program support.

        (2) Nonprofit activities.        (3) Journalism.        (4) Academic research.

Fees for copies of GIS data I.C. § 5-14-3-8 (j) and (k)

Informal Inquiry 09-INF-5

Regarding Electronic Maps

The counselor must be a practicing attorney

The counselor shall apply full efforts to the duties of the office and may not be actively engaged in any other occupation, profession, or business

Requirements for position of Public Access Counselor

(1) To train public officials and educate the public on the rights of the public        

(2) To conduct research. (3) To prepare interpretive and educational materials and

programs     (4) To distribute to newly elected or appointed public

officials the public access laws(5) To respond to informal inquiries made by the public

and public agencies(6) To issue advisory opinions to interpret the public

access laws(7) To make recommendations to the general assembly

concerning ways to improve public access.

Powers and Duties of thePublic Access Counselor

(IC 5-14-4-10)

“In my opinion, the electronic maps are public records subject to the disclosure provisions of the APRA.” (page 2, paragraph 3)

“A county may, pursuant to I.C. § 4-23-7.3-20(a), enter into a data exchange agreement with the State. If the county refuses to do so, the State may request, and the agency must provide, access to the electronic map pursuant to the general disclosure provisions of the APRA.” (page 5, paragraph 2)

GIS As Public Records

“I.C. § 4-23-7.3-20(a) [Indiana GIS Law] provides that ‘a political subdivision maintains the right to control the sale, exchange, and distribution of any GIS data or framework data’ ... But it is important that within the same chapter is a provision indicating that language does not supersede the APRA.” (Page 3, last paragraph)

APRA versus Indiana GIS Law

APRA

Rules!

“In summary, it is my opinion a county may not, under I.C. § 5-14-3-3(g), require the State or any requester to obtain a license or pay copyright royalties to obtain a copy of the GIS mapping data.” (page 5, paragraph 2)

Royalties and Licensing

“…if the information the State receives is information from an electronic map, the political subdivision may not limit the State's use or dissemination of the information.”(page 6, last paragraph)

Downstream Restrictions

“If a public agency (here, a county) refuses to enter into a data sharing agreement, the State then becomes a purchaser, and as such the State must pay the fee established under I.C. § 5-14-3-8(j).” (page 4, paragraph 2)

Copy fee

GIO

County

“In my opinion, it would be reasonable and appropriate for the agencies to charge a lower rate for only a small portion of the electronic map… (page 4, paragraph 3)

“If the map data maintained by an agency is not copyrighted, it would be my opinion that information must be provided in accordance with the general provisions of the APRA.” (page 5, paragraph 1)

“If the data is not copyrighted, the record is treated like any other public record.” (page 5, paragraph 1)

Fee and copyright

“While I am no expert in this area, it is my opinion and understanding that the information the State seeks does not constitute computer programs, codes or software. As such, I do not believe a county can withhold the information on the basis of I.C. § 5-14-3-4(b)(11).” (page5, paragraph 4)

Other findings

Since GIS data are public records, can they be protected by copyrighted? If so, what protections would be afforded (Not licensing or royalty payment. Not forcing downstream restrictions. Not withholding the information.)

Why is that important? It could be the difference between paying $14 and paying $14,000 (Marshall County)

Questions not answered

Confused?

You should be.. Its OK!

Elsewhere in the USA… GIS Case LawUnited States Court of Appeals, Second

CircuitCOUNTY OF SUFFOLK NEW YORK v. FIRST AMERICAN REAL ESTATE SOLUTIONS TRW

COUNTY OF SUFFOLK, NEW YORK, Plaintiff-Appellant-Cross-Appellee, v. FIRST AMERICAN REAL ESTATE SOLUTIONS, Defendant-Appellee-Cross-Appellant,

Experian Information Solutions, Inc., doing business as Experian, doing business as Experian Real Estate Solutions, TRW Redi Property Data, also known as

Information Systems and Services, Inc., Defendants.

Docket Nos. 00-9011(L), 00-9169(XAP).

Argued Feb. 28, 2001. -- July 25, 2001Suffolk County claims “tax maps contain a substantial amount of original material, research, compilation and organization wholly original with the County and are copyrightable subject matter under the laws of the United States.”

Counter claim (1) the tax maps lack sufficient originality to qualify for copyright protection because their content is dictated by state regulation;  (2) the tax maps are sufficiently analogous to judicial opinions and statutes to be deemed in the public domain from their inception and, hence, not entitled to copyright protection;  and (3) FOIL bars Suffolk County from owning a copyright in its tax maps.

http://caselaw.findlaw.com/us-2nd-circuit/1302264.html

Conclusions:Tax maps are sufficiently original to allow for copyright Tax maps are not in the public domain from their inceptionCopyright does not abrogate FOIL

Elsewhere in the USA… GIS Case Law

District Court of Appeal of Florida,Second DistrictMICRODECISIONS INC v. SKINNER

MICRODECISIONS, INC., Appellant, v. Abe SKINNER, as Collier County Property Appraiser, Appellee.

No. 2D03-3346.

December 01, 2004

At Issue:

Collier County claims tax maps are public records which are copyrighted and require a commercial license and royalty payments to be used by for profit purposes.

http://caselaw.findlaw.com/fl-district-court-of-appeal/1081203.html

Conclusion:

Under the Florida constitution, Collier County has no right to claim copyrights to GIS data, which are public records.

Collier County cannot impose a license agreement or charge royalties

Elsewhere in the USA… GIS Case Law

Supreme Court of ConnecticutDIRECTOR DEPARTMENT OF INFORMATION TECHNOLOGY OF THE TOWN

OF GREENWICH v. FREEDOM OF INFORMATION COMMISSIONDIRECTOR, DEPARTMENT OF INFORMATION TECHNOLOGY OF THE TOWN

OF GREENWICH, v. FREEDOM OF INFORMATION COMMISSION et al.No. 17262.

Argued Jan. 6, 2005. -- June 21, 2005

At Issue: “Exemption from  disclosure because GIS data contains trade secrets”, and “Exemption from disclosure because the format of GIS information would reveal the structure and thus compromise the security of an information technology system”

http://caselaw.findlaw.com/ct-supreme-court/1445320.html

Conclusion:

Local government GIS data does not comprise a “trade secret”

GIS data does not threaten the security of information systems

Elsewhere in the USA… GIS Case Law

Supreme Court of Wisconsin

WIREDATA INC v. VILLAGE OF SUSSEX

Nos. 2005AP1473, 2006AP174, 2006AP175.

Argued March 13, 2008. -- June 25, 2008

At Issue:

Several issues – the key issue was whether the Village of Sussex could avoid liability under open record laws by contracting with an independent contractor. The independent contractor claimed copyright protection of its database.

http://caselaw.findlaw.com/wi-supreme-court/1350576.html

Conclusion:

The Village of Sussex was responsible to provide the GIS data in compliance with open records laws and could not hide behind a contractor. The data was provided in PDF format.

Elsewhere in the USA… GIS Case Law

Supreme Court of South CarolinaSEAGO III v. HORRY COUNTY

George H. SEAGO, III, and Real Estate Information Service, Inc., Appellants, v. HORRY COUNTY, Respondent.

No. 26505

June 16, 2008

At Issue:

Horry County's right to claim copyright for GIS data, charge a fee (royalty) for use of copyrighted data and restrict the down stream use of the GIS data

http://caselaw.findlaw.com/sc-supreme-court/1279054.html

Conclusion:

Horry County can claim copyright and and restrict the downstream use of the data.

Elsewhere in the USA… GIS Case Law

Court of Appeal, Sixth District, California

COUNTY OF SANTA CLARA v. SUPERIOR COURT

COUNTY OF SANTA CLARA et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent; California First Amendment Coalition, Real

Party in Interest.

No. H031658.-- February 05, 2009At Issue:

(1) Homeland Security Act protects the information from disclosure;   (2) The requested information is exempt from disclosure under the California Public Records Act “catch-all clause”; (3) The County can place restrictions on disclosure under state law provisions recognizing its copyright interests, and it can demand fees in excess of reproduction costs.

http://caselaw.findlaw.com/ca-court-of-appeal/1417775.html

Conclusions:Submitter of data to the Federal government the is not protected by the Homeland Security

Act

Santa Clara County could not prove that in withholding the GIS data the public interest was better served

California law provides for copyright for software and not for public records – data can’t be copyrighted nor can a fee be charged greater than the cost of reproduction.

Elsewhere in the USA… GIS Case LawSupreme Court of California

ORANGE COUNTY SUPERIOR COURT v. SIERRA CLUBOrange County Superior Court; 30-2009-00121878

No. S194708

CURRENT

At Issue: Is Orange County’s computer database of public land records exempt from disclosure under the Public Records Act (Gov. Code, § 6250 et seq.) as a ―computer mapping system[]‖ (Gov. Code, § 6254.9, subd. (b)), or is that term limited to computer programs that read such a database?

http://calpubrec.org/oclawsuit/

Conclusions:To be announced in June 2012

One more.. On Copyright Law..

United State Supreme CourtFEIST PUBLICATIONS, INC. v. RURAL TEL. SERVICE CO., 499 U.S. 340 (1991)

499 U.S. 340 FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE CO., INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 89-1909

Argued January 9, 1991 Decided March 27, 1991

At Issue:

Feist Publications published a phone book containing listings from Rural Telephone’s copyrighted telephone directory.

Conclusions:The phone directory is not eligible for copyright

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=499&invol=340

Summary of Case Law to date..Copyright law was created by the Federal government for the benefit of the authors of original and creative works.. but the Federal government exempts itself from copyright protection

States and local governments have the right to copyright their work unless they expressly exempt themselves from copyright protection. e.g. Florida and California

Local governments who have copyrighted their data do restrict downstream use and do charge royalties

Why are these issues important?

Liability issues

Financial issues

Security issues

Political issues

Centerline & Address databaseo Form TX For a non-dramatic literary work

o We claim the work is a “compilation of database”

2 Foot Contourso Form VA For a Work of the Visual Arts

o We claim the map is a 2-Dimensional Artwork

Digital elevation Modelo Form VA For a Work of the Visual Arts

o We claim the map is a 2-Dimensional Artwork

Orthophotographyo Form VA For a Work of the Visual Arts

o We claim the map is a 2-Dimensional Artwork

Parcels & “Condominiums & Related Tax ownership lists”

o Form VA For a Work of the Visual Arts

o We claim the map is a 2-Dimensional Artwork

Allen County has registered copyrights on..

Allen County publishes its copyrighted data

http://www.acimap.us/viewer

Google alsoclaimscopyright

What good is the copyright?

Yahooclaimscopyright

What good is the copyright?

Mapquestclaimscopyright

What good is the copyright?

Copyright is the only method recognized in Indiana statute.. in the definition of an “electronic map”.. which allows a local government entity to charge a fee greater than the cost of copying the data.

Indeed.. What good is the copyright of GIS data to local government in Indiana?

Can I pay for the GIS operation with revenue generated by data sales?

How much does it cost to register my copyrights and keep them current?

How much does it cost to keep track of the revenue I am earning by selling my data?

How much lost economic development is occurring because I am limiting distribution of data that would contribute to growing my community?

Lets look at that a little closer.. and ask..

Are there options?

We can choose

US Government grant money is available to those local GIS efforts willing to freely share their GIS data

Economic development is fueled by easily obtained highly accurate local information – How many new Toyota plants does it take to offset any loss in GIS data sales?

Allen County recently changed their ordinance for GIS fees.. to the cost of printing a map

Allen County declared GIS data to be a “public record in the public domain”

Allen County’s GIS license agreement, 13 pages of restrictions, was replaced by a sentence requesting credit for use of its data in products generated from its use

In 2011, Allen County provided two copies of its parcel layer to industry and received $30K in the transactions

Since the amended ordinance in April of 2012, Allen County has provided eight copies of its parcel layer to projects as diverse as new rail transportation research.. to protection of ecologically fragile wetland areas.. to participation in the IndianaMap project.

Allen County based its GIS on sales of data and found that data sales could not support the GIS costs

Allen County recognized it was limiting itself and has changed its position on sharing GIS data

The future will tell..

Summary

Where do we go from here?

Seek further clarification, especially about copyright

Seek changes to Indiana code Continue to find build

relationships and find ways to help each other

Work to invert the National Map paradigm so that GIS funding supports work at the local level

Where do we go from here?

IndianaGIS