Spatial data and databases - aspects of legal protection

Małgorzata Gajos
Institute of Computer Science
University of Silesia
Będzińska 39
41-200 Sosnowiec
E - mail: gajos@us.edu.pl

Abstract

The notion of spacial information and main kinds of data processed in GIS systems have been widely described in the hereby paper (for instance geodesy information, infrastructural information, information concerning grounds, coalmines, information of geologic type etc.). The differentiation of the legal status of the data (for instance state or official secret, informational properties, personal data) has been stressed and the legal problems connected with the phenomena have been indicated, especially in reference to acquisition and access of the data.

At the final part of the paper, the problem of legal protection of databases has been taken into consideration, mainly the legal protection of databases in European Union on the base of Directive 96/9/EC of the European Parliament and of the Council of the European Union. The EU Directive offers protection to both - electronic and non-electronic databases and provides copyright and sui generis protection.Bases of protection of databases in Poland there is also describe. In Poland databases are protected mainly under legislation of 27th of July 2001 - protection of databases, which provide only sui generis protection and also as works under legislation of 4th of February 1994 - copyright and related rights.

As a result of research undertaken, it appears that introducing and functioning of GIS requires legal regulations of certain connected with this problems.

Keywords: spatial information, spatial data, legal protection of database, European Union directive, sui generis protection, copyright protection

The notion of spatial information

The range of the notion 'information about space' ('spatial information') contains legally determined, basic records of information, which include pieces of information contained in the state geodesy and cartographical supplies, real-estate register ,the register of grounds, buildings and flats, in spatial planning schedules, data bases of natural environment and to water planning and in plans of management of forests, in the collections of information from the range of the state - statistics, mining and management of minerals, defence, taxes and fees from possessing or using real-estate. However neither in rules nor in literature of the problem,the more precise or unified definition of this notion does not exist. It might be proved by nomenclature used by particular authors for defining systems of this information. Some of them use the notion 'systems of spatial information' (SIP) or a similar name 'systems of information about space', others speak about 'systems of geographical information' or about 'geographical systems of information' ('Geographical Information Systems' - GIS), yet others call it the information about ground ('land information') or about 'systems of local information' ('Land Information Systems' - LIS).

This results in far going differentiation of opinions on the content of spatial information, and the same - on the scope of systems of this information. There exists, for example, a distinct tendency restricting their range to traditionally conceived geodesy cartographical information. In wider range some geographical and geologic attributes of space are taken into account (eg scenery, natural environment, natural wealths). Yet wider is the idea of considering space as certain natural and socio-economical entity. Supporters of such opinion treat space as three-dimensional (cubic) structure, instead of flat (two-dimensional) and in consequence they tend to acknowledge that systems of spatial information should embrace data about all more important material objects, natural or created by men being found on a given area: on its surface, under the ground and in the air. They also affirm that theoretically it would be well-founded to include here also some information about social and economic infrastructure, eg about the industrial potential of a given region, about scientific cultural and educational institutions, about social organizations, about demographic situation. So understood system of spatial information is indeed a complex system of information about the specific territorial unit - a commune, an administrative district, province, region or the whole country.

Sources of spatial information

There exist also many forms and types of sources of spatial information such as:

• acts of local law, of which normative acts created by local organs of administration government and by territorial autonomy units: communes, administrative districts and autonomies of provinces belong to. They refer to such matters connected with space, as site planning, housing, flat building, communal cemeteries, cleanness and order in communes, public roads, real estate management, environment protection etc;
• analyses, estimations, opinions and conclusions, eg analyses of concordance of content and of the course of realization of short-term and middle-term programmes with strategic long-term programmes, nationwide and province estimations of protection condition from flood, opinions about annual and many years' schedules of development of water management in the range of protection from flood, or opinions and conclusions relating to running activity on special economic zones and their development;
• records and cadastres as universally well-known record of grounds and of buildings (real-estate cadastre) and cadastre of water management (water cadastre), detailed rules of running and the example of a cadastre;
• informations, explanations and reports, from among which deserve attention especially information about health safety state of administrative districts and of provinces prepared by health inspectors on the ground, statistical information, information and explanations submitted to voivodes by organs of non-joint administration and reports from activity of Main Flood - Committee;
• books, especially real-estate registers and water books have special meaning here;
• long-term strategic programmes of social and economic development and programmes of regional policy, local plans ofsite planning, plans of development of economic zones, schedules of water management development in the range of protection from flood and programmes of statistical researches of public statistics;
• prognosises, projects, ideas and foundations - the following matters belong here (among other things): prognoses of social and economic development, idea of policy of site planning of the country, founding plans of development of economic zones and of energetistic policy of the state;
• regulations, statutes, erection acts and other organizational documents. Especially orders in the matter of establishing special economic zones and regulations of such zones deserve attention;
• registers, lists and inquiry systems belong to most important collections of information about space. This refers mostly to national register of subjects of national economy called in shortening 'a register of subjects', and to national register of territorial country division, called in shortening 'territorial register';
• conditions and requirements. as for example conditions of profiting from waters of river-basin (water law);
• guidelines and directions. As an example to one can point some general directions of activity of Health - inspection organ, or guidelines for province flood - committees;
• collections of documents. In systems of information spatial collections of documents appear to have a double kind character: accessories collections, accompanying the main base or replacing it (eg collections of documents in real-estate register and water register) or as autonomous collections. As the example of this of second category of collections are the sets of rules of the local law based on the laws regulating the system and functioning of local administration and the sets of a province official papers.

Kinds and legal status of spatial data

For the purpose of the present elaboration wide understanding of spatial information was accepted, acknowledging that problem range of systems of this information embraces in prticular the following inquiry blocks:

• information about real estate, ie. about grounds and buildings. This is a typical geodesical information. In dependence of kinds of grounds one can distinguish further, more detailed collections of information, for example information about farming grounds, forests - barrens etc;
• information about waters and about water management. In this block both information about superficial waters, and - numbered already to geologic information - information about underground waters is included;
• information about minerals and about geologic and mining activities - ie. about activities concerning research, diagnosing and exploitation of deposits of minerals (geologic information);
• information about technical infrastructure of the area, in particular about developing of ground and about tele-communicational net;
• information about public roads, including the list of these roads, data about their condition, technical characteristics, lists of bridge objects, etc;
• information about protected elements of natural environment, that is about national parks, reservations and monuments of nature, areas of protected scenery, etc;
• information about antique objects and infrastructure, and in particular about monuments of architecture and buildings, town-planning - infrastructure, antique parks, gardens and cemeteries, archaeological positions, antique technical devices etc.

In the range of making the spatial data available the general rule is freedom of inquiry processes, lack of prohibitions of using this information, and in certain cases even constraint of delivering the information (eg at general registers), however with reservation of protection of such legally protected goods, as:

• state - and official secrets (secret information),
• personal data of physical persons,
• data constituting n object of intellectual property,
• financial secret,
• bank - secret,
• statistical secret,
• professional secret,
• economic and commercial know-how.

If the problem is making the spatial information available to external subjects, then the decisive meaning should be attributed to such circumstances, as:

• legal duty of making the data available to a given subject, who puts in about it, or
• the legal business of the mover (unless the current rules prevent from making the data available).

For circulation of spatial information, and the same for good SIP functioning, some legal implications of accumulation, transformation and of making the data available, resulting from current rules are essential. In Poland in the first place it is necessary to mention the law from 4 of February 1994 about copyright and related rights (Dz.U. No 24, item. 83 with later changes). In light of its rules the problems of SIP might be brought to four basic problems, namely:

• using of primary documents for the needs of the system,
• copyright protection of derivative documents,
• copyright protection of collections of SIP,
• usages of modern methods, of means and inquiry technologies, and in particular - of techniques of copying documents.

Spatial databases

Current laws often impose the duty of creation and servicing of databases of SIP character. As an example one can mention:

• the law about protection of goods of culture imposing duty of running the register of monuments and of record of goods of culture,
• water law, in accordance with which one should collect the sets of documents connected with water economy, registers of intakes of underground waters, water registers and water economy cadastre,
• the law about real-estate register and land registry/mortgage, in accordance with which one should run real-estate registers together with the sets of documents for particular real-estate,
• the law about public roads imposing the duty of running the record of roads and of road - bridge objects on managers of roads,
• about public statistics, which establishes, among other things, running the national register of subjects of national economy and of national register of territorial country division,
• the law about waste material, imposing running the record of waste material storages,
• the law about real-estate management, according to which one should prepare or run such sets of information about real-estate, as lists of real-estate intended to sale, to give in perpetual lease or in use, in lease or hire, and cadastre of real-estate (record of grounds and of buildings).

The legal protection of databases under European Directive

The legal base of protection of databases in European Union is the Directive 96/9/EC of the European Parliament and of the Council of 11th of March 1996 on the legal protection of databases.

Directive covers databases defined as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means (art. 1 paragraph 2 Directive).

The Directive provides:

I. copyright protection for the intellectual creation involved in the selection and arrangement of materials.

In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection (art. 3 paragraph 1 Directive).

The author of a database shall be the natural person or group of natural persons who created the base or, where the legislation of the Member States so permits, the legal person designated as the rightholder by that legislation (art. 4 paragraph 1 Directive).

In respect of the expression of the database which is protectable by copyright, the author of a database shall have the exclusive right to carry out or to authorize (art. 5 Directive):

• temporary or permanent reproduction by any means and in any form, in whole or in part;
• translation, adaptation, arrangement and any other alteration;
• any form of distribution to the public of the database or of copies thereof. The first sale in the Community of a copy of the database by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community;
• any communication, display or performance to the public;

The performance by the lawful user of a database or of a copy thereof of any of the acts listed above which is necessary for the purposes of access to the contents of the databases and normal use of the contents by the lawful user shall not require the authorization of the author of the database. Where the lawful user is authorized to use only part of the database, this provision shall apply only to that part (art. 6 paragraph 1 Directive). Member States shall have the option of providing for limitations on the rights in the following cases (art. 6 paragraph 2 Directive):

• in the case of reproduction for private purposes of a non-electronic database;
• where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
• where there is use for the purposes of public security of for the purposes of an administrative or judicial procedure.

II. sui generis (in latin means "of its own kind or class") protection for an investment (in human and technical resources and effort and energy) in the obtaining, verification or presentation of the contents of a database. Under this right there is no requirement for creativity or originality.

Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database (art. 7 paragraph 1 Directive). The right may be transferred, assigned or granted under contractual licence (art. 7 paragraph 3 Directive).

Extraction means the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form. Re-utilization means any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission. The first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community. Public lending is not an act of extraction or re-utilization (art. 7 paragraph 2 Directive).

The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted (art. 7 paragraph 5 Directive).

The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Where the lawful user is authorized to extract and/or re-utilize only part of the database, this paragraph shall apply only to that part. He also may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database and may not cause prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database (art. 8 paragraph 1 - 3 Directive).

Member States may stipulate that lawful users of a database which is made available to the public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents (art. 9 Directive):

• in the case of extraction for private purposes of the contents of a non-electronic database;
• in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
• in the case of extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.

Term of protection for database runs from the date of completion of the making of the database. It shall expire fifteen years from the first of January of the year following the date of completion. In the case of a database which is made available to the public in whatever manner before expiry of the period provided for in paragraph 1, the term of protection by that right shall expire fifteen years from the first of January of the year following the date when the database was first made available to the public. Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection (art. 10 paragraph 1 - 3 Directive).

The protection under the sui generis right shall apply to database whose makers or rightholders are nationals of a Member State or who have their habitual residence in the territory of the Community (art. 11 paragraph 1 Directive). Shall also apply to companies and firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community; however, where such a company or firm has only its registered office in the territory of the Community, its operations must be genuinely linked on an ongoing basis with the economy of a Member State (art. 11 paragraph 2 Directive).

The legal protection of databases in Poland

Necessity to adapt Polish legislation to European Union requirements under protection of databases causes the introduction of legislation of 27th of July 2001 - protection of databases (Dz.U. No 128, item 1402), which entered into force on the 10th of November 2002. Before this law databases were protected in Poland under legislation of 4th of February 1994 - copyright and related rights (Dz.U. 2000 No 80, item 904 with later changes) only as a work.

The aim of Directive was to provide harmonized copyright protection and protection through a new specific sui generis right for databases. However Directive provides much greater protection of databases than in Polish regulations. It concerns the legal protection of databases in any form. In Poland the law from 2001 concerned only sui generis protection without databases which are works.

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