Digital Map Data Copyright Question
- April 20, 2011 @ 9:02amjustin says:I have two datasets. One is copyrighted and the other is public domain. Can I query the copyrighted data to select out information from the public domain dataset and keep that data in the public domain? I would only query against the copyrighted data, I would not keep it or use its attributes to update the public domain data.
- May 3, 2011 @ 9:15amGClement says:Justin, In order to consider your question about the use of copyrighted data, a bit more information is needed:
1. What kind of "copyrighted data" are you referring to? Can you be more specific about the genre or nature of the works being used? The nature of the copyrighted work is a factor in making a Fair use determination, and your inquiry doesn't provide sufficient context to gauge whether Fair Use could be applicable in your situation.
2. Is the copyrighted data covered by some kind of license? Often times, data providers distribute their data under terms of a license agreement that you or your institutino have signed. If a license is in place, you need to abide by the terms and conditions of this agreement or risk breaching a contract. Keep in mind that licensing terms can pre-empt any rights you might have under US Copyright Law.
2. If you acquired the copyrighted data without a licensing agreement in place, then it is important to clarify what you are trying to do to see if your use fits within one of the exceptions to the owner's rights, such as Fair Use. Can you provide more detail on the purpose of your use? Again, your inquiry doesn't provide sufficient context to gauge whether Fair Use could be applicable in your situation.
- May 3, 2011 @ 9:48amjustin says:Thanks for getting back to me. I want to take google kml files (which google claims to be copyrighted because people are using imagery to obtain a latitude and longitude) and do a spatial query on a public domain dataset to select out a few records out of millions. I hope this makes sense. So I would select all points within a certain distance of the kml point and sift through a subset of the large public domain dataset. Please let me know if this still does not make sense and I will try to elaborate, but I think this should be clear now.
- May 3, 2011 @ 10:01amGClement says:Hi Justin,
The use of geospatial data can be pretty complex, so thanks for the additional info. As a science librarian with GIS training, I am still having a hard time understanding how exactly you are using the copyrighted data. It is not clear how your activities are implicating the rights of the copyright owner to control the reproduction, distribution, modification, public display or public performance of his/her copyrighted data.
Are you saying that you need to load the copyrighted kml files into your GIS software (which in effect means you are reproducing it?) Or are you modfying the data in some way via the software?
Also, in acquiring the kml files, did you agree to any kind of terms and conditions set forth by Google, the data provider?
Again, the more specifics you provide, the better chance we have of providing a useful response!
- May 3, 2011 @ 10:35amjustin says:Here is an example of what I want to do.
1)Find a kml of Major League Baseball Stadiums.
2)Convert the kml to shapefile
3)In ESRI software select points in a public domain dataset that are within 5 miles of converted kml files
4)manually sift through the selected records for the records I want
I am downloading google kml files from forums that people create with their own free time. I believe that google states anything created or derived from imagery on their website is copyrighted. I am using the kml google data to spatially query a public domain dataset. Does this sound like copyright infringement?
- May 4, 2011 @ 11:38amGClement says:The additional info really helps!
Before launching into a response, please understand that there are two major elements of your question:
(1) Copyright implications of what you are doing with the kml files
(2) Potential breach of contract implications based on the use of content that Google has licensed to you
Since the scope of this CAN Forum is copyright (not contract law), my response is limited to #1.
My not-a-lawyer analysis of your situation is as follows:
a. The data contained in any given kml file may NOT be copyrightable. For instance, if the kml file contains latitudes and longitudes or other address-like information, the data is simply not eligibile for copyright protection under US Copyright Law. This fact would apply to geospatial coordinates, whether lat/long, UTMs, street addresses, zip codes, etc.
b. What could be copyrightable in the kml file is the arrangement of the data. So the actual mark up -- the xml tagging -- could represent value added by the file creator, and s/he could assert copyright ownership over the markup.
c. Because of (b) above, your act of converting the kml file to shapefile for use in an ESRI ARC product could then infringe the copyright owner's right to control the making of derivative works from her/his coprighted work.
Also, your copying of the shape file into the ESRI software would infringe the copyright owner's rights to control reproduction of his/her protected work.
d. Therefore, the use you describe could be an infringement of copyright if you do not secure permission for your use ....BUT that is not the end of the story!
e. If your use falls within one of the statutory exceptions to the copyright owner's rights, such as Fair Use, your use is NOT an infringement. Fair Use allows you to make use of copyrighted works -- in certain circumstances -- without permission. Fair Use has equal standing in US copyright law as the rights of the owner, so if you use qualifies as a Fair use, you are fully compliant with copyright law.
To determine if your use is Fair, you need to evraluate it with respect to four factors specified in Copyright Law (Title 17, Section 107). Various handy tools, including the Fair Use Checklist, can help you to make that evaluation properly. ( see http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf)
f. BUT this is not the end of the story either!
g. IF you agreed to some kind of license that prohibits your use -- such as the Ternms and Conditions statement on the Google earth site -- the license pre-empts, or trumps, any rights you have under Copyright Law such as Fair Use. In other words, you can kiss your Fair Use right goodbye by agreeing to the terms of a license. We on this Forum can not help you interpret the terms of the license at Google but you may want to check with your local GIS librarian, GIS data manager, or your legal counsel.
Hope this helps with your project, justin, and thanks for sharing your very interesting and appropriate question on the CAN Forum!
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