Let’s go to court

George Cho PhD

This note is about two developments in the mapping world that should be of interest to professionals in the geospatial industry. One took place in the United States where a group of surveying professionals have asked the courts for a ruling on who may be able to tender for public contracts to draw ‘maps’. This development should raise the concern of most geospatial professionals. The second took place at the opposite end of the world in Australia where the Copyright Agency representing surveyors has sought a ruling on the ownership of intellectual property rights of surveyor’s maps. While these two cases are interesting such developments are indicative both of the maturing of the geographic information (GI) profession and the willingness of professionals to assert their ‘rights’.

The MAPPS case

In February 2007 in the US the Management Association for Private Photogrammetric Surveyors (MAPPS), American Society of Civil Engineers (ASCE), National Society of Professional Engineers (NSPE), and Council on Federal Procurement of Architectural and Engineering Services (COFPAES) brought a case against the government in the Federal Court. The litigation sought to change how the Brooks Architect- Engineers Act (1972) (see 40 U.S.C. §§
1101-1104). – a law concerning how federal contractors are selected in the procurement process – is implemented with regard to ‘mapping services’.

The Brooks Act is a framework for contracting architecture and engineeringrelated work for the federal government. The award of contracts for such work isbased on ‘qualification-based selection’
(QBS) rather than on price. QBS is predicated on professional qualifications and experience, followed by negotiation with the most qualified firm of a price that is fair and reasonable to the government. With amendments, surveying and mapping has been added to QBS.

The Federal Acquisition Regulation (FAR) Council, made up of several government agency executives, implements statutory laws, like the Brooks Act for awarding contracts.

The MAPPS litigation is how the FAR Council has implemented the Brooks Act and related legislation (see Francica & Schutzberg 2007 and Respini-Irwin 2007a). The sticking point is that mapping services do not fall under the QBS part of the Brooks Act and thus may be contracted in the traditional pricebased competition. The interpretation of the Brooks Act has been variable and implemented in different ways by different agencies when contracting for mapping.

The MAPPS litigation sought to ensure the FAR Council properly implement the Brooks Act (see statements by MAPPS 2007a). If successful, mapping would be added to the list and government contracts would only be awarded to qualified professionals such as surveyors, geodesists and photogrammetrists. The implication is that all federal contract mapping would fall under the QBS provision of the Brooks Act and need to be procured through licensed architects, engineers, surveyors and cartographers. Under such a scheme, mapping would become more expensive, complex and exclusive. It also may mean that the broader mapping community andmuch of the GIS industry would be shut out of federal mapping contracts. The unintended consequences could cripple the GIS industry, damage geographic science in the US in terms of research capacity and competitiveness and shackle government agencies to only those mapping services provided by the MAPPS membership.

Several groups have prepared amicus (‘friend of the court’) briefs. The Urban and Regional Information Systems Association (URISA) released a statement in February 2007 opposing the plaintiffs’ case because of the potential harm to the professions and the industry and details a list of problems including expanding “the scope of architecturalengineering surveying and mapping far beyond the scope of any professional expertise certified by registration or licensing as a surveyor, engineer, or architect” (see Respini-Irwin 2007a).

The Association of American Geographers, the GIS Certification Institute, the Geospatial Information & Technology Association and the University Consortium for Geographic Information Science as well as the National States Geographic Information Council have joined URISA in filing the amicus brief. The brief states that “amici [filers of the brief] would suffer injury if the MAPPS plaintiffs were to win this lawsuit … [as it] would not only insulate all federal mapping contracts from price competition, but also exclude everyone else – that is, anyone and everyone other than licensed engineers and surveyors – from even being eligible to receive a federal mapping contract” (see Francica & Schutzberg 2007b and Schutzberg 2007).

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)

George Cho PhD

Conclusions

To conclude GI professionals must take note and must begin to worry. The tussle between the rights of GI professionals to practise their craft as against regulations prohibiting the opportunity to tender for lucrative mapping contracts may have come to pass. GI professionals have come to realise the importance of asserting property ownership of the products of their labour – maps and plans – as well as being ever vigilant to ensure greater accuracy to avoid litigation in the courts.

The trend seems to be that the amount and degree of litigation involving maps, GI professionals and other cognate disciplines is on the rise. This trend is reflective of GI as a maturing system, as science and study in its own rights; and more importantly, as a profession in its own right.

References

Baldwin, M & Adams, G (2007) ‘Ownership and licensing of copyright by States and the Commonwealth: High Court grants leave to appeal’ in http://www.blakedawson.com/Templates/Publications/x_article_content_page. aspx?id=47897.

Copyright Agency Limited v State of New South Wales [2007] FCAC 80.

Copyright Agency Limited v New South Wales (2007) 240 ALR 249; (2007) 73 IPR 1.

Francica, J & Schutzberg, A (2007a) ‘February’s Brooks Act Litigation: What Geospatial Practitioners Need to Know’ Directions Magazine January 19, 2007 and at http://www.directionsmag.com/printer.php? articleid=2383.

Francica, J & Schutzberg, A (2007b) ‘Responses on the Books Act Litigation’ Directions Magazine January 22, 2007 and at http://www.directionsmag. com/printer.php?article_id=2388.

MAPPS (2007a) ‘Special Notice to the Membership on QBS: QBS Litigation Update: The Parties and Issues in the Lawsuit’ January 30, 2007 at http:// www.mapps.org/QBSlawsuit.asp.

MAPPS (2007b) ‘Special Notice to the Membership on QBS: QBS Litigation Update: Judge’s Decison’ June 15, 2007 at http://www.mapps.org/QBSlawsuit .asp.

Respini-Irwin, C (2007a) ‘The Case of MAPPS v United States’, Geospatial Solutions, Feb. 15, and at http://govm.geospatialsolutions.com/gssgovm /content/printContentPopup.jsp? id=405391.

Respini-Irwin, C (2007b) ‘Court Decides. MAPPS, et al. v United States of America’, Geospatial Solutions, June 22, 2007 and at http://www.geospatialsolutions.com/geospatialsolutions/content/print ContentPopup.jsp?id=436672.

Schutzberg, A (2007) ‘Has There Been Enough Response to the MAPPS Litigation? Directions Magazine, February 21, 2007 and at http://www.directionsmag. com/editorials.php?article_id=2412.

Wong, M (2008) ‘When must the Crown pay to use copyright material for the services of the State?’ in Deacons Legal Update February 2008 at http://www.deacons.com.au.

Yates, D & Kingston, V (2007) Copyright Agency Limited v State of New South Wales [2007] FCAC 80 in Allens Arthur Robinson Intellectual Property Bulletin – September 2007 at http://www.aar. com.au/pubs/ip/ipbullsep07.htm#07.