Point of Beginning

Viewpoint

March 29, 2001
V. Kelly Bellis
How fertile the ground and rich in metaphor is the comparison of real property with intellectual property? Concepts of title, ownership and licenses applied to land provide marvelous conceptual illustrations of a slightly less tangible form of property: intellectual property. Technological advancements, the increased pervasiveness of those technologies throughout society and the prevailing forces of commerce, all heighten the need to understand those concepts when applied to intellectual property, both in terms of public and private rights.

Of course, protection of intellectual freedoms for the private citizen or the public is nothing new. It is much at the crux of our country’s constitution. One of its framers wrote nearly a dozen years afterward:

“The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to an uniformity of interests. The protection of these faculties is the first object of government.”1

This sentiment is manifested in the Constitution of the United States, where it gives Congress the power to enact laws relating to patents. In Article I, section 8, it states “Congress shall have power . . . to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

The protection of the private rights to intellectual property is largely covered through laws dealing with patents, trademarks and copyrights2 while the protection of the public rights to intellectual property is covered through laws seemingly less centralized. There is possibly one exception: information.

Information, a form of intellectual property, can be claimed and possessed either privately or publicly. Privately held information, through creation or acquisition, generally has a clear basis of title by which the ownership, the unrestricted right and exclusive use of it, is claimed. Publicly held information, through creation or acquisition, generally has its basis of title nebulously linked to the sovereignty and the actions of government.

The unrestricted right and exclusive use by the public to public information has not always been seen, thus giving rise to both federal and state laws. It is important to remain mindful of this respective applicability; the (federal) Freedom of Information Act (FOIA3) only applies to federal entities while each state’s own Freedom of Access laws (sometimes referred to as right-to-know laws) only apply to state entities.

Some Examples

As an example of public information being requested in a federal application, DeLorme Publishing Company Inc., DeLorme, Maine, filed suit4 in U.S. District Court against the National Oceanic and Atmospheric Administration of the United States (NOAA) under the FOIA after DeLorme’s November 1994 request for digitized nautical charts was denied.

In an example of public information being requested in a state application, Taconic Data Corporation, Valhalla, N.Y., initially filed a complaint with the Freedom of Information Commission (FOIC) of the state of Connecticut against the towns of Lisbon, Groton, Suffield, Ledyard, Bozrah, Griswold and Stonington after being informed that Taconic’s request for an electronic copy of the grantor/grantee index would cost $1 per page (same as the paper copies cost). Although the Commission’s decision of June 19975 dismissed the complaint, Taconic’s appeal before the Superior Court resulted in the matter returning to the FOIC. Not only did the FOIC declare in its revised final decision in January 19996 that the fee may not exceed the town’s costs in providing copies in the requested format, it also ordered the clerks to strictly comply with the provisions of the statutes.

An interesting aspect in these two examples of public information being sought through the courts is the nature of the information being requested and the spirit spoken through the law. Indeed, it is at the very heart of both the federal law and the various state laws (including Maine’s Freedom of Access) that there not be concealed deliberations when doing the people’s business.

“The Legislature finds and declares that public proceedings exist to aid in the conduct of the people’s business. It is the intent of the Legislature that their actions be taken openly and that the records of their actions be open to public inspection and their deliberations be conducted openly. It is further the intent of the Legislature that clandestine meetings, conferences or meetings held on private property without proper notice and ample opportunity for attendance by the public not be used to defeat the purposes of this subchapter.

“This subchapter shall be liberally construed and applied to promote its underlying purposes and policies as contained in the declaration of legislative intent.” [1975, c. 758 (rpr).] 7

Not leaving the powerful opening statement to stand alone in its own right, the legislators underscored their intentions, emphasizing their opening declaration: “shall be liberally construed and applied to promote its underlying purposes and policies as contained in the declaration of legislative intent.”

A good book discussing this further is Maine’s “Right To Know” Law: An Introduction and Guide8 by Jonathon S. Piper Esq. and Sigmund D. Schutz Esq.

The spirit seen through these opening declarative statements and throughout the entirety of the statutes surrounding freedom of access to public information can be easily viewed as shining a light on the conduct of government. These laws are therefore sometimes referred to as “sunshine laws” ensuring conduct that may be seen in the light of day. Rightfully, the press is often associated with these laws surrounding public access to information:

“No government ought to be without censors; and where the press is free no one ever will.”9

In spite of the freedoms afforded through these laws, concern is growing over special interests that continue to lobby government for exemptions from public scrutiny; and thus give rise to such entities as Maine’s Public Access Coalition.10

Interestingly enough, the laws dealing with the conduct and nature of the information of the people’s business are extended to include nautical charts, grantor/grantee indices, GIS and other information whose nature has less to do with conduct but rather with commerce. (Note: Further suggested reading for obtaining an initial overview of the legal issues surrounding the use and development of geographic information technologies and databases can be found at Professor Harlan J. Onsrud’s website.11)

Another significant court action seen in regard to the access and unrestricted use of public information recently took place in New York; however, in this case, it was the government that filed the action. First American Real Estate Solutions LLC, Anaheim, Calif., was notified by Suffolk County to stop marketing CD-ROM disks containing electronic copies of the tax maps originally produced on paper by the county. The county had received copyright registrations and affixed copyright notices on their maps and associated amendments beginning in 1974. The county had claimed exclusive right, title and interest in and to all of the copyright protected maps. They also filed an action in United States District Court, Southern Division of New York to not only stop First American from selling the CDs but to seek damages. First American moved to dismiss the action on grounds that the maps lacked originality, were in public domain and that New York’s Freedom of Information Law (FOIL) bars the counties from owning copyrights in tax maps. Judge Keenan denied the motion to dismiss in his Memorandum Opinion and Order dated May 15, 2000.12 Judge Keenan later reversed his decision in an order dated July 21, 200013, upon First American’s motion to reconsider based primarily upon the FOIL and two unpublished advisory opinions from the state agency that oversees implementation of the FOIL, the Committee on Open Government.

Conclusion

Access and unrestricted use of public information continues to be threatened. The county commissioners in Hancock County, Maine, unwittingly conveyed copyrights of all electronic images produced under a 1997 contract (and a subsequent 1998 contract) with a fledgling Registry of Deeds services provider. Court action was avoided after public outcry resulted in the commissioners, in effect, buying back the copyrights from the vendor in October 2000. Although not yet implemented14, the commissioners have stated they will charge $1.25 to view a single image online.15

Public information on land records is increasingly being regarded as a commodity by both the private sector and government. Commercial websites such as ACS16, TitleWeb17 and The Warren Group18 appear poised for an eager market. Some local and state governments are also vying for a slice of the revenue stream from the perceived panacea of e-commerce.

Not all efforts to disseminate public information on land records via the Internet and other electronic means are motivated by “the selfish spirit of commerce, which knows no country, and feels no passion or principle but that of gain.”19 Many excellent examples exist all across our country of government’s responsible role in providing its citizens with free and open electronic access to the land records information owned by the people. These include Cobb County, Ga.20, Maricopa County, Ariz.21, Pima County Department of Transportation in Arizona22 and Essex County, Mass.23, to name just a few. Free and unfettered access to public information is fundamental to liberty. “The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime, and the punishment of his guilt.”24

Sidebar:

ASME International (American Society of Mechanical Engineers), in collaboration with the American Bar Association section of Intellectual Property Law, published a new book, Intellectual Property: A Guide for Engineers. The book is designed to provide engineers (and surveyors) in all disciplines with a basic understanding of intellectual property and its various forms. It presents information on patents, copyrights, trademarks and other topics. While not a law book, the 74-page guide covers such issues as copyright transfers, federal registrations of trademarks, trade secrets and Internet domain names. It also includes a chapter discussing the international protection of intellectual property. To order, visit www.asme.org and click on “Publications Catalog” or call 800/843-2763.