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)
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