RIGHTS IN GEOSPATIAL INFORMATION: A SHIFTING LEGAL TERRAIN.

• Date: 01 April 2018
• Author: Alexander, Isabella

Contents I Introduction A A Changing Landscape: From Paper Map to Spatial Media II Copyright Law and Geospatial Information A Copyright Protection in the Analogue Era: The Paper Map 1 Subject Matter 2 Originality and Authorship 3 Ownership 4 Infringement B The Digital Map 1 The Cartographic Visualisation (or Digital Map) (a) Subject Matter (b) Material Form (c) Originality and Authorship 2 The Digitised Data (or Database) 3 Copyright and the Digital Map: Conclusion III Database Right IV Conclusion I Introduction

Australia lies on the fastest-moving tectonic plate on Earth, floating northeast at a rate of about seven centimetres a year. (1) This means that geodesists are faced with the continuing challenge of keeping the coordinates of maps up to date. (2) The appearance of maps, and the information contained therein, has changed over time, influenced by the particular purposes they are designed to serve, developments in adjacent technological and scientific fields, as well as cultural, economic and ideological factors. Until recently, these changes have occurred at rather the same pace as continental drift: slowly and perhaps, to the majority of people, imperceptibly. However, the last few decades have seen extraordinary transformations in the methods and practices of collecting, storing, using, representing and disseminating what was once called geographic information but is now more broadly termed 'spatial data'. Updating Australia's datum so that it reflects a position on the face of the globe that matches satellite positioning systems is an essential step towards modernising Australia's spatial data management. What makes it essential is the centrality of locative technologies in almost every aspect of contemporary society--from government, to industry, to everyday activities such as finding a restaurant or driving a car. Indeed, it has been claimed that Earth Observation currently provides $500 million in direct benefits to Australia, a figure estimated to increase to $1.7 billion by 2025, while precise positioning added $2.3 billion to the Australian GDP in 2012, and is estimated to add more than $8 billion by 2020. (3)

Despite the growing importance of spatial data, surprisingly little close attention has been paid to the legal situation of the new, spatially embedded, digital citizenry. In particular, little attention has been directed towards the legal status of the spatial data involved. (4) A recent article in The Economist observed that '[d]igital information is unlike any previous resource; it is extracted, refined, valued, bought and sold in different ways. It changes the rules for markets and it demands new approaches from regulators. Many a battle will be fought over who should own, and benefit from, data.' (5) Companies and government bodies that deal with data treat them as property that is capable of being owned, bought, sold and licensed. Yet, as the Productivity Commission has recently noted, in Australia, 'no one "owns" data; in limited circumstances, copyright law can protect the form in which information is expressed, and it may be possible to claim ownership over a processed dataset'. (6)

This article will consider the extent to which existing intellectual property laws in Australia encompass spatial data and associated products or systems, such as digital maps, cybercartography, geographic information systems ('GIS') and other emerging spatial media. It will begin by examining the changing terrain of geographic information and associated digital products and clarifying terminology for a legal audience. It will then turn to consider how the legal landscape has changed. It will look first at how copyright law was used in the past to regulate the ownership, production and dissemination of analogue maps and spatial data, and the challenges that arose in that context. It will go on to examine how changes in the digital era have affected the way that the law will apply to digital maps and digital spatial data, questioning whether copyright remains an appropriate legal mechanism for assigning ownership and access rights. Next it will consider whether a database right modelled on that in Europe would provide for better processes and outcomes, concluding that it will not. It will finally turn to consider some of the matters that need to be considered when deciding whether a new category of right is required to address this gap.

Before continuing, some explanation of terminology may be of assistance. This article will use the phrases 'spatial data' and 'geospatial data' as meaning essentially the same thing. In other words, the terms will be used in a broad sense to mean data which refers to a specific location or geographical area. (7) Spatial data can thus cover not just datasets that describe physical geography, but also datasets describing topographical features, cadastral or land title information, transport and infrastructure, location of resources, such as groundwater, or utilities. (8)

The words 'data' and 'information' are frequently used interchangeably by commentators, with little significant impact. Here, we will endeavour to treat them as having a subtly different meaning, by reference to the commonly used 'knowledge pyramid'. In the knowledge pyramid, 'data precedes information, which precedes knowledge, which precedes understanding and wisdom'. (9) Without wishing to get bogged down in technical definitions, which have themselves been the subject of scholarly debate, (10) we will seek to use 'data' in the sense of 'raw elements' that have been extracted through observation, computation, experiment or recordkeeping, (11) while the word 'information' will be used here in a broader or less technical sense, to mean an accumulation of data, or 'data plus meaning'. (12) Geospatial, or spatial, data can be understood broadly as 'any data (quantitative and qualitative) which have a location (eg spatially referenced with coordinates) or topology. (13)

A A Changing Landscape: From Paper Map to Spatial Media

For the majority of people, the chief way of obtaining an understanding of one's location in terms of space and place is through the form of graphic representation known as a map. Maps have been made and used by humans since preliterate and prehistoric times, but have only come to be used in any great numbers in the last five centuries. (14) Across history, maps have embodied a vast array of purposes and objectives including wayfinding, religious and sacred, administrative, military and aesthetic. Today, the Oxford English Dictionary defines a map as

'[a] drawing or other representation of the earth's surface or a part of it made on a flat surface, showing the distribution of physical or geographical features (and often also including socio-economic, political, agricultural, meteorological, etc, information), with each point in the representation corresponding to an actual geographical position according to a fixed scale or projection ... (15) In the past, a map drawn on paper was the main method of conveying geographic information. While paper-based maps of course combined both geospatial data and the representation of that data, the value of the data tended only to be realised through its representation on a map, chart, plan or survey. Today, however, changes in technology have inverted the relationship, such that the greatest value may lie in the spatial data itself.

Around the time that Australia was being settled by the British, the British state was beginning to assert itself as having key responsibility for, and control over, geographic information through state-ordered mapping activities. (16) This situation prevailed for 200 years in both Britain and its former colony Australia, with the state controlling the production, collection, dissemination and use of geographic data and information. As Scassa and Taylor point out, 'governments have a natural interest in and need for these data, which have applications for defence, service delivery, land ownership, resource development, environmental protection, planning and other governmental activities'. (17) However, the state's key role flowed not just from these concerns, but also because the costs of producing, collecting and compiling accurate data were such that very few other bodies had the necessary financial resources.

The beginnings of the digital transformation of mapping can be roughly dated back to the 1960s, when the Canadian Geographic Information System was designed to allow the computerisation of land measurement. (18) The United States was not far behind, with the US Bureau of the Census creating digital records of streets to assist with the management of census records. (19) By 1973, the first computer-made map had been published in the United Kingdom, and soon cartographic agencies across the world were putting computers to work in map-making. (20) Alongside these developments in computerised cartography, the emergence of digital remote sensing via satellite began to offer new sources of data on the appearance of the earth, as well as methods of measuring location. (21)

Much of the early literature on developments in this field focuses on GIS and their implications for science, government and industry, (22) with a smaller subset examining their legal implications. (23) In the last 10 years, however, both technology and practice has moved beyond standalone, desktop GIS used by a small number of government or commercial actors. Now, as Kitchin, Lauriault and Wilson have noted, 'a varied set of new, networked and often mobile spatial technologies have been developed that are open to use, contributions and editing by anyone with access to the internet. (24) These new technologies are spatial in the sense that location and mapping are core to the way in which they operate. (25) The term 'spatial media' was coined by Crampton in 2009 to cover this diverse range of technologies and activities. (26) They...