Let’s go to court

George Cho PhD

Court Decision on the MAPPS case

The Federal Court issued a ruling in June 2007 against MAPPS. According to Judge T.S. Ellis III of the U.S. District Court for the Eastern District of Virginia, MAPPS and its fellow plaintiffs do not have the standing to bring the questionof implementation of the Brooks Act. This is because the plaintiffs failed to establish that injury in fact was suffered by the individual surveyors or their firms. Note here that the court only ruled on the process of law and did not address the issue of whether QBS was applicable to mapping. Further litigation might be on the horizon in the near future (see Respini-Irwin 2007b and MAPPS 2007b).

Surveyors Maps and Intellectual Property

In Australia, the Copyright Agency Ltd (CAL) brought a case to the Copyright Tribunal under the Commonwealth Copyright Act 1968 (Cth) in regard to surveyors plans and the state of New South Wales’ claim to ownership. The Tribunal heard the application, evidence, submissions and made findings. Following the determination, the parties requested that the Tribunal refer the matter to the Federal Court to determine questions of law concerning whether copyright existed in the surveyors’ plans within the meaning of the Copyright Act and whether surveyors were entitled to receive royalties arising from the State Government’s use of the plans.

In September 2007 the Full Federal Court unanimously rejected the New South Wales Government’s claim that it owned copyright in the surveyors plans. The court held that the subject plans were not made or first published by or under the ‘direction and control’ of the state within the meaning of sections of the Copyright Act and that even though the Government’s use and supply of the subject plans fell under a section of the Act, the Government had an implied licence from the surveyors to use and supply the plans (see Yates & Kingston 2007).

As regards Crown Copyright, it was held that for copyright purposes a work is made by its author. The Copyright Act contemplates that in certain circumstances, the act of the author in making a work is to be attributed to the Crown. Following the Federal Court’s decision, the NSW State government sought leave to appeal to the High Court of Australia – Australia’s highest court. The basis for the appeal was whether the New South Wales Land Titles Office may continue to freely deal with surveyors plans lodged with it for State purposes, or whether that government agency should pay surveyors royalties for these subsequent dealings. The appeal was granted in November 2007 (see Baldwin & Adams 2007).

The CAL is declared a ‘collecting society’ for the purposes of the Copyright Act. CAL’s role is to represent copyright owners such as authors, photographers, publishers and, in this case, surveyors, and to administer the licensing of copyright works to the general community.

Before the decision of the Full Federal Court there has been very little judicial discussion as to the meaning of “direction or control of the State” and the scope of operation of Crown Copyright provisions. This appeal to the High Court may yield more certainty in the interpretation of the terms and clarifying the limits of the automatic vesting of copyright in the Crown (Wong 2007).

Implications for GI professionals

The rhetorical question of “who can draw maps?” is asked simply to raise awareness that one may indeed do so for various purposes including that of making a living. However, when there are barriers and limitations in trying to make a livelihood it may raise the hackles of individuals and professional associations. The MAPPS case may be interpreted as one of a kind of ‘restraint of trade’, of a monopoly (or in the case in North America of anti-trust) and to see the Brooks Act as equivalent to one of protectionism. Were that litigation to have succeeded it would have restricted the people who could tender for government contracts to draw maps.

The MAPPS case also raises issues of qualifications and accreditation, of licensing and of professionalisation of the mapping community.

In North America, the Geographic Information Science Certification Institute (GISCI) (see http://www.gisci.org) provides professional certification after vetting of qualifications and experience. It is a kind of an accreditation agency for the various institutions that provide GItype education and training. But even here the GISCI has a policy against mandatory certification in the GI profession for any purpose. The certification policy has always been voluntary.

Licensing is a very different from certification, while both might be considered as different forms of regulation. The push for certification is for the interests of the GI profession and not to debar those that are licensed and is no substitute for licensure. Having attained a professional status with the addition of letters “GISP” after one’s name does not necessarily mean that those who do not have these are not qualified to undertake professional GI work. On the contrary, some of these professionals might have better experience and skills learnt on the job than from any tertiary course. Moreover, GIS, as a tool, is used in many disciplines and applications and is not narrowly confined.

Surveyors, engineers and architects have a formal licensing process to gain professional status and more importantly to obtain a practising licence. There are liability and other imposts for these professions and hence the need for strict procedures. The imperative is not so great for GI professionals although there may be an urgent need for such licensure when cases come to court for loss amounting to damage, harm and hurt.

“Who owns the maps?” is a further question but is no longer rhetorical as the case in Australia shows. More and more GI professionals now are becoming acculturated to the view that there are intellectual property issues involved. These include not only the rights of ownership, but also responsibilities. For surveyors the need for absolute accuracy is a requirement, whereas some GI professionals might argue that the map is only a representation of reality and the represented objects are in relative space. In the Australian context the inception of the Spatial Sciences Institute (SSI) that gathers together all of the spatial science professions – geographers, GI professionals, surveyors, cartographers — may be a step in the right direction (see http://www.spatialsciences.org.au)