Copyright Innovation

Of Geospatial Data Deregulation, Intellectual Property and Personal Data Protection


 

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On 15th February, the Department of Science and Technology released a new set of guidelines liberalising India’s Mapping and Geospatial Data regime by removing the existing multi-layered licensing procedures applicable on private entities. In light of these guidelines, I will discuss how maps and geospatial data can be protected as intellectual property, as well as the possible interplay between IP concerns and the personal data protection regime.

The New Guidelines

Historically, India has maintained a strong regulatory mechanism over mapping and geospatial data intelligence. The Survey of India [‘SOI’] enjoyed the sole authority to engage in the exercise and allowed limited licenses to private entities. Despite a move towards partial liberalisation in 2005’s National Map Policy, a 2016 Draft Bill threatened to render all unlicensed maps in India, illegal. These new guidelines have been issued under the National Map Policy 2005, which happens to be the source of mapping guidelines in India. The guidelines provide that any violation will be dealt with under applicable laws. While there are no mapping ‘laws’ currently in place in India, a set of Publication Instructions released by the Survey of India in 2016 enlist map publication-related offences punishable under laws including the Copyright Act, 1957, Official Secrets Act, 1923, and notifications passed under Customs Act, 1962. As guidelines do not have the force of law, it would have been better if a legislative enactment were to lay down the framework of India’s mapping policy.

Under the new guidelines, private companies, organizations and individuals have been authorised to collect, generate, prepare, disseminate, store, publish, update and/or digitize Geospatial Data and Maps and process the same without any security approvals or licenses. Ground-truthing, which refers to procuring of information through direct observation, has also been permitted. This would allow companies to use their own digital technology to collect data rather than relying on the government’s databases. . However, a few barriers have been imposed. These benefits are restricted to Indians alone and the government will soon release a negative list consisting of sensitive attributes over which restrictions will continue.

This radical change will provide a huge boost to the private sector as mapping and geospatial data are an indispensible component of various industries – infrastructure, transportation, smart power, logistics, e-commerce as well as agriculture, environment protection and increasingly, healthcare services in the COVID era. This data is a key intellectual asset, not just for companies to utilise their mapping technology to generate geospatial solutions that would support their business operations, but also for volunteer open-source mapping projects like OpenStreetMap and DataMeet which form part of the larger Open Data movement.

Data Protection

Notably, geospatial data collected from individuals is likely to have implications under the Personal Data Protection Bill 2019, which is still in the works. PDP Bill lays down a privacy-based framework for companies that collect and use ‘personal data’, i.e., data that is capable of identifying the person to whom it belongs. A large amount of location information is generated by tracking the time and location details of mobile phone users, and would most probably qualify as personal data. PDP Bill would require the data principal’s consent to be taken before this is done and also mandate deletion of such data if consent is later withdrawn. Additionally, location information often happens to be the key to intimate details about a person such as their religious beliefs, political affiliation or ethnicity. PDP Bill classifies this as ‘sensitive personal data’, and contains additional accountability measures for transfer of such data outside India.

Aside from individual privacy, accumulation of location data can reveal important patterns that may have implications for security interests as well. In 2018, a global heat map released by a fitness app exposed the location of US military officers and thus, secret military bases.

With the proliferation of geospatial data and its rising importance in the economy, businesses will seek to obtain IP protection over it, so as to ensure that their data provides them a real competitive advantage over rivals. However, IP is a private right. When IP protected geospatial data comes under the PDP regime, there may be clashes between the two. For e.g., can a data principal seek to have here information deleted if it now constitutes the (intellectual) property of the company that collected that data? Geospatial intelligence may witness a significant interplay between intellectual property and data protection laws.

Copyright Protection

Mapping involves two different subjects for copyright protection: (i) the maps themselves and; (ii) the geospatial datasets used to create them.

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Maps are expressly recognised as copyrightable under Section 2(c) of the Copyright Act, 1957. Interestingly, since the value of maps depend on their accuracy – a factor which also decreases copyrightability – cartographers have for long practiced a technique called ‘map trapping’, to prove copyright infringement without compromising on accuracy. They intentionally mark their maps with places that do not exist in reality, in order to detect copycat maps. These places could be streets, called ‘trap streets’ or even whole towns known as ‘paper towns’. One such town, ‘Agloe’ in New York State, has an interesting story of how it began as a paper town but people moved there believing it to be real, and so the mapmakers actually lost their claim against an allegedly plagiarised map!

In the age of digitized maps, such issues are no longer common as geospatial information has overtaken physical maps as the major business asset.

Geospatial data consists of large amounts of location data collected either through remote-sensing, radar, satellite and drone imagery or generated from navigation systems, social media applications that track location by default, customer information entered into radio-cab and food delivery apps, traffic cameras, surveillance systems, etc. Such data comes broadly within the scope of ‘compilations’ or ‘databases’, which are recognised as literary work under the Copyright Act. However, in order to enjoy copyright protection, they must show originality. Post the Supreme Court’s decision in EBC v. DB Modak, the ‘exercise of skill, labour and judgment’, is no longer accepted as a threshold of originality. Compilations and databases need to show a ‘modicum of creativity’ for protection. Thus, only a unique selection and arrangement of data is protected and not data in its raw form.

This poses a problem because unlike client lists, geospatial data consisting of geographical information such as landscape, climate and topography is collected via means that can be utilised by any entity, making it harder to prove specific selection and arrangement. This factual nature makes it more likely to be termed raw data.  Moreover, even if a dataset as a whole is found to be original, other parties are not precluded from copying its components or non-original subsets, regardless of the skill and labour exercised to procure it and the competitive advantage it offers. Geospatial data could perhaps be better protected under a sui generis database protection law, akin to the Directive 96/6/EC adopted by the European Union, which extends protection to non-original databases.

Copyright’s limited protection to geospatial data is further subject to fair dealing exceptions, which have been inconsistently interpreted in India. Some courts lean towards an open-ended four-factor test (fair use doctrine), while others emphasize strict adherence to statutory exceptions (Nikhil discusses this here).  It is difficult to predict how courts will apply the exceptions crafted for copyright law on geospatial data, which can be used in a wide range of industries, from real world simulations in videogames to aviation training.

Geospatial data deals with information taken from publicly available sources and is commonly used in public utility projects. Therefore, from a policy perspective, it is worth questioning whether allowing copyright protection over it would actually promote innovation, as awarding strong monopoly rights may allow the first-movers in the business to prevent others from utilising it.

Trade Secret

While geographical data relating to the physical features of terrain would not qualify as ‘secrets’, location information acquired through an entity’s own operations such as customers’ travel routes, residence and similar details may be protected as trade secrets. Trade secrets in India are protected either under contract law, or the common law doctrine of breach of confidence. Courts usually require plaintiffs to show:(i) that the information in question is not known to public; (ii) that it provides the plaintiff with commercial advantage; and (iii) the plaintiff has undertaken reasonable efforts to maintain the secret. However, there is uncertainty in this regard as some courts have denied protection to customer information.

Public funding and Government Copyright

The maps published by SOI are under the Government of India’s copyright (see Section 1(2), here). The new guidelines order SOI and other government agencies to ‘simplify procedures and abolish forms/licenses’ to make its maps and geospatial data accessible. Presumably, they retain copyright over it as the guidelines, which are silent on this issue, otherwise state that geospatial data produced by utilising public funds will be provided to government agencies free of cost and to others at fair charges. This is similar to countries like the UK, where Crown copyright subsists over government-created data.

Some scholars have argued (see page 19, here) that if data is collected by utilising public funds in exercise of public duties, why should the public have to pay again to access it?  Even if the government does retain copyright over this data (which it ideally shouldn’t), the fair dealing exceptions in Section 52 permit usage for a number of purposes that are mostly non-commercial in nature. Thus, if members of public require maps or geospatial data for uses falling within the scope of Section 52, SOI should not be charging them as they are not legally required to pay. This is all the more relevant when seen in light of the cases where agencies such as SOI have failed to publish accurate maps that the public requires (see this EPW article).

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