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Copyright Protection for Data Obtained by Remote Sensing: How the Data Enhancement Industry Will Ensure Access for Developing Countries J Northwestern Journal of International Law & Business Volume 11 Issue 2 Fall Fall 1990 Copyright Protection for Data Obtained by Remote Sensing: How the Data Enhancement Industry Will Ensure Access for Developing Countries J. Richard West Follow this and additional works at: http://scholarlycommons.law.northwestern.edu/njilb Part of the Air and Space Law Commons, Intellectual Property Commons, and the International Law Commons Recommended Citation J. Richard West, Copyright Protection for Data Obtained by Remote Sensing: How the Data Enhancement Industry Will Ensure Access for Developing Countries, 11 Nw. J. Int'l L. & Bus. 403 (1990-1991) This Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons. Copyright Protection For Data Obtained By Remote Sensing: How the Data Enhancement Industry Will Ensure Access for Developing Countries I. INTRODUCTION The use of remote sensing of the earth by satellite' has grown tre- mendously since the United States launched the first such satellite, Land- sat 1, in 1972.2 In 1984, the Land Remote Sensing Commercialization Act3 began the gradual transfer4 of the United States Landsat program to the private sector. The Earth Observation Satellite Company (EOSAT) is the private operator licensed pursuant to the Act5, and is preparing to launch the first privately-operated remote sensing satellite, Landsat 6, in 1991.6 The Commercialization Act requires operators to make raw data7 1 Remote sensing from space is best defined as "a methodology to assist in characterizing the nature and condition of the natural resources, natural features and phenomena, and the environment of the earth by means of observations and measurements from space platforms." PROGRESS REPORT OF THE WORKING GROUP ON REMOTE SENSING OF THE EARTH BY SATELLITES ON THE WORK OF ITS SECOND SESSION, U.N. Doc. A/AC. 105/111, at 2 (1973) [hereinafter COPUOS '73]. 2 Greenburg, Third Party Access to Data Obtained via Remote Sensing: InternationalLegal Theory versus Economic and PoliticalReality, 15 CASE W. RES. J. INT'L L. 361, 362 (1983). 3 15 U.S.C. § 4201-4292 (Supp. 1989) [hereinafter Commercialization Act]. For a discussion of the purpose and function of this legislation, see infra notes 95-103 and accompanying text. 4 Landsat commercialization is to proceed in three phases. Phase 1, which is designed to in- crease data markets, requires the Secretary of Commerce to contract for private sector marketing of Landsat data, and private operation of the system. Title to the Landsat satellites is to remain with the government. Phase 2 is a six-year transition period, during which the Secretary shall "contract for private development, operation, and ownership" of a non-governmental remote sensing system. SENATE COMM. ON COMMERCE, SCIENCE, AND TRANSPORTATION, LAND REMOTE-SENSING COM- MERCIALIZATION ACT OF 1984, S.REP. No. 458, 98th Cong., 2nd Sess. 1, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 658, [hereinafter LEGISLATIVE HISTORY]. The third phase provided for in the Act is the complete termination of government authority, and thus completion of commer- cialization on July 17, 1994. See Commercialization Act, supra note 3, at § 4227. 5 See Commercialization Act, supra note 3, at §§ 4241-4246; Licensing of Private Remote-Sens- ing Space Systems, 15 C.F.R. § 960 (1988). 6 COPUOS, Review of National and International Space Activities for the Calendar Year 1987, U.N. Doc. A/AC.105/406/Add.4, at 30 (1988) [hereinafter COPUOS REVIEW]; telephone inter- view with Richard Mroczynski, EOSAT Director External Affairs, and Kevin Corbley, EOSAT Media Coordinator, October 5, 1989. 7 See infra text accompanying notes 27-29 for a discussion of the differences between raw and Northwestern Journal of International Law & Business 11:403(1990) available to all users on a nondiscriminatory basis,' but it does not pre- clude the copyrighting of processed satellite information. Because the United States recently joined the Berne Convention for the Protection of Literary and Artistic Works, 9 any copyright protection would function on an international basis. Many commentators have suggested that intel- lectual property rights in remote sensing data will sharply reduce the availability of such data to less-affluent users.10 These concerns, however, stem from a most .superficial analysis of the effects of remote sensing commercialization. Critics have ignored measures that actually protect developing country access, including the safeguards built into the Berne Convention to ensure widespread availa- bility of copyrighted material, treaties on remote sensing designed to protect international access, and safeguards built into the Commerciali- zation Act stemming from the United States' commitment to nondis- criminatory data access. Critics also fail to recognize the necessity of intellectual property rights to ensure the survival of a commercial remote sensing program, and the fact that developing countries, with the help of the international community, can make significant use of primary data which is not subject to copyright. This comment examines the function of international copyright pro- tection of processed data and shows how such intellectual property rights are compatible with, and will actually encourage, easy access for all users. II. REMOTE SENSING GENERALLY A. History and Uses The United States launched the first remote sensing satellite, Land- sat 1, in 1972.11 It has since launched four additional Landsat satel- lites,' 2 and many other countries have developed or are developing their own remote sensing programs 13 processed data. Although it is recognized that "data" is a plural noun, "data" will be used in this article in the collective singular sense. 8 Commercialization Act, supra note 3, at § 4271. 9 See the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988) [hereinafter Berne Act]; The Berne Convention for the Protection of Literary and Artistic Works, Paris Act, 1971, printed in S. Treaty Doc. No. 27, 99th Cong., 2nd Sess. 1 (1986). 10 Cf Joyner & Miller, Selling Satellites: The Commercialization of Landsat, 26 HARV. INT'L L.J. 63 (1985). 11 Greenburg, supra note 2; although Landsat was the first satellite dedicated wholly to remote sensing, earlier spacecraft, dating back to Sputnik 1, engaged in remote sensing activities, COPUOS '73, supra note 1. 12 LEGISLATIVE HISTORY, supra note 4, at 658. 13 As of March, 1988 (the date of the most recent available evidence), France, the United States, Copyright Protection 11:403(1990) Data from remote sensing are virtually unlimited in their uses and applications. 14 Satellites assist in observing renewable resources, crop- yield forecasting, oil and mineral exploration, cartography, environmen- tal observation, and water and watershed management. 5 All nations can benefit from these satellites' abilities to monitor environmental condi- 1 6 tions and to assist in the efficient management of resources. Also of global interest is the fact that remote sensing satellites aid in the predic- tion, management, and prevention of natural disasters. 7 In the United States and in other developed nations, private firms make up a significant portion of the data user market." Many of these are data enhancement firms 19 which purchase unenhanced data from EOSAT (the private satellite operator), process it, and sell it for profit to such users as oil and mineral companies20 . Public uses of data in indus- trial nations are mostly limited to the updating of existing information, and the monitoring of natural phenomena.21 This is probably due to the fact that information useful for the development of industry, such as in- formation about topography, land use, hydrology etc., has already been gained by industrialized countries through the industrialization process. Thus, developed nations rely on remote sensing not for an initial picture of these phenomena, but rather for an indication of any changes affecting known conditions. The benefit of remote sensing data to lesser developed countries lies and the Soviet Union operated remote sensing satellites, while programs were planned in Brazil, Canada, China, India, Japan, and the European Space Agency. COPUOS: REPORT OF THE SCIEN- TIFic AND TEHCNICAL SUB-COMMITTEE ON THE WORK OF ITS TwENTY-FIFTH SESSION, U.N. Doc A/AC.105/409, at 13 (1988) [hereinafter SCIENTIFIC SUB-COMMITTEE]. 14 See LEGISLATIVE HISTORY, supra note 4; JOINT NATIONAL PAPER OF THE MEMBERS OF THE EUROPEAN SPACE AGENCY (submitted at Unispace 82), U.N. Doc. A/conf.101/np/37, at 22 (1981) [hereinafter ESA NATIONAL PAPER]. 15 See REPORT OF THE THIRTEENTH UNITED NATIONS/FOOD AND AGRICULTURAL ORGANI- ZATION OF THE UNITED NATIONS/UNITED NATIONS EDUCATIONAL SCIENTIFIC AND CULTURAL ORGANIZATION INTERNATIONAL TRAINING COURSE ON THE APPLICATIONS OF REMOTE SENSING TO WATER RESOURCES, U.N. Doc. A/AC.105/414, at 5, 12, 14, 15 [hereinafter FAO]. 16 Report of the Second United Nations Conference on the Exploration and Peaceful Uses of Outer Space, U.N. Doc. A/CONF.101/10, at 41 (1982) [hereinafter UNISPACE 82]. 17 U.N. GOAR SPECIAL POLITICAL COMMITTEE (10th mtg.), U.N. Doc. A/SPC/43/SR.10, at 8 (1988) [hereinafter POLITICAL COMMITTEE]; FAO, supra note 15, at 12; See infra note 25 for an example of disaster prediction. 18 See Lowndes, Value Added to Remotely Sensed Data, 120-2 Av. WEEK & Spc. TECH. 125 (1984). 19 For a definition of the data enhancement industry, see infra note 104. The term "value-added industry" is often used in writings about remote sensing data processing instead of the term "data enhancement industry." 20 EarthSat, for example, is a firm which uses remote sensing data for consulting in oil and gas exploration, Lowndes, supra note 18. 21 UNISPACE 82, supra note 16, at 42. Northwestern Journal of International Law & Business 11:403(1990) not in its potential for commercial exploitation, but in its potential for generalized public applications.
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