Open Data and Earth Observations The Case of Opening Up Access to and Use of Earth Observation Data Through the Global Earth Observation System of Systems

Earth observations (EO) represent a growing and valuable resource for many scientific, research and practical applications carried out by users around the world. Access to EO data for some applications or activities, like climate change research or emergency response activities, becomes indispensable for their success. However, often EO data or products made of them are (or are claimed to be) subject to intellectual property law protection and are licensed under specific conditions regarding access and use. Restrictive conditions on data use can be prohibitive for further work with the data. Global Earth Observation System of Systems (GEOSS) is an initiative led by the Group on Earth Observations (GEO) with the aim to provide coordinated, comprehensive, and sustained EO and information for making informed decisions in various areas beneficial to societies, their functioning and development. It seeks to share data with users world-wide with the fewest possible restrictions on their use by implementing GEOSS Data Sharing Principles adopted by GEO. The Principles proclaim full and open exchange of data shared within GEOSS, while recognising relevant international instruments and national policies and legislation through which restrictions on the use of data may be imposed.The paper focuses on the issue of the legal interoperability of data that are shared with varying restrictions on use with the aim to explore the options of making data interoperable. The main question it addresses is whether the public domain or its equivalents represent the best mechanism to ensure legal interoperability of data. To this end, the paper analyses legal protection regimes and their norms applicable to EO data. Based on the findings, it highlights the existing public law statutory, regulatory, and policy approaches, as well as private law instruments, such as waivers, licenses and contracts, that may be used to place the datasets in the public domain, or otherwise make them publicly available for use and re-use without restrictions. It uses GEOSS and the particular characteristics of it as a system to identify the ways to reconcile the vast possibilities it provides through sharing of data from various sources and jurisdictions on the one hand, and the restrictions on the use of the shared resources on the other. On a more general level the paper seeks to draw attention to the obstacles and potential regulatory solutions for sharing factual or research data for the purposes that go beyond research and education.

Internet Intermediaries and the Law Applicable to Intellectual Property Infringements

The coordination between territoriality restricted intellectual property rights and the potential global reach of Internet activities has been the focus of significant attention in recent years. The liability of Internet intermediaries offering potentially global services that may facilitate infringements of intellectual property rights by others in multiple countries poses a particular challenge in that regard. At a substantive law level, significant differences remain between jurisdictions regarding secondary liability for intellectual property rights infringements and safe harbor provisions for Internet intermediaries. The present article discusses the conflict of laws aspects of the liability of Internet intermediaries in light of the recent international efforts to adopt soft law provisions on intellectual property and private international law.

Infringement and Exclusive Jurisdiction in Intellectual Property: a Comparison for the International Law Association

The following comparison was written for the first meeting of the International Law Association newly established (2010) Committee on Intellectual Property and Private International Law (Chair: Professor Toshiyuki Kono, Kyushu University; Co-Rapporteurs: Professors Pedro de Miguel Asensio, Madrid Complutense University, and Axel Metzger, Hannover University) (hereinafter: ILA Committee), which was hosted at the Faculty of Law of the University of Lisbon in March 16-17, 2012. The comparison at stake concerns the rules on infringement and exclusive (subject-mater) jurisdiction posed (or rejected, in case of exclusive jurisdiction) by four sets of academic principles. Notwithstanding the fact that the rules in question present several differences, those differences in the majority of cases could be overcome by further studies and work of the ILA Committee, as the following comparison explains.

GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.

Transnational Law for Transnational Communities The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities

Open Source Communities and content-oriented projects (Creative Commons etc.) have reached a new level of economic and cultural significance in some areas of the Internet ecosystem. These communities have developed their own set of legal rules covering licensing issues, intellectual property management, project governance rules etc. Typical Open Source licenses and project rules are written without any reference to national law. This paper considers the question whether these license contracts and other legal rules are to be qualified as a lex mercatoria (or lex informatica) of these communities.

Information as Property

Information is widely regarded as one of the key concepts of modern society. The production, distribution and use of information are some of the key aspects of modern economies. Driven by technological progress information has become a good in its own right. This established an information economy and challenged the law to provide an apt framework suitable to promote the production of information, enable its distribution and efficient allocation, and deal with the risks inherent in information technology. Property rights are a major component of such a framework. However, information as an object of property rights is not limited to intellectual property but may also occur as personality aspects or even tangible property. Accordingly, information as property can be found in the area of intellectual property, personality protection and other property rights. This essay attempts to categorize three different types of information that can be understood as a good in the economic sense and an object in the legal sense: semantic information, syntactic information and structural information. It shows how legal ownership of such information is established by different subjective rights. In addition the widespread debate regarding the justification of intellectual property rights is demonstrated from the wider perspective of informational property in general. Finally, in light of current debates, this essay explores whether “data producers” shall have a new kind of property right in data.