CLIMATE DATA, CLIMATE CHANGE and COPYRIGHT – What’s the Connection?

CURRENT SOCIETAL CONCERNS
Elpidio V.Peria
3 February 2013

Access to climate data is important. Last 3 December 2012, ALERTNET reported[1] that in Colombia, climate researchers complain of lack of access to data because it is expensive. Its main climate data service, the Institute of Hydrology, Meteorology and Environmental Studies, charges more for access to its information than similar agencies in its Andean neighbors, and this lack of access to data, the scientists say, affects decision-making processes and puts lives at risk.

According to the World Meteorological Organization also quoted in the report, when it’s hard to get current climate data, researchers use “suboptimal, out-of-date data”. This can result in all sorts of bad planning, from where a country locates its farms to how it builds storm-resistant infrastructure. It can also mean bad long-term weather forecasting, leaving whole populations vulnerable to weather disasters.

According to the same report, Colombian scientists have to spend $1,200 just to get one record of basic atmospheric pressure data they might need to study tropical climate change. That’s about the monthly salary of a young researcher. Another scientist researching extreme winds behavior could spend $23,000, for one basic data series. That’s a two-year scholarship for a Colombian graduate student. Peru, Venezuela, Bolivia and Chile, by comparison, all share their climate data for free on the Internet. So does the US National Oceanographic and Atmospheric Administration

In its defense, the Colombian climate data service explains it is charging high fees because gathering such data is costly, it spends around US$20million to run its network and earns around US$1million a year by selling data.

Philippine climate researchers also say the same thing about the high costs of access to climate data in their work, but would not give specifics because their contracts with the providers gag them into talking about these things. One factor however that adds to the costs is the matter of copyright over these materials.

Climate advocates and the ordinary citizen may be hard put where to put copyright among their other concerns about climate but as Dr. Estelle Derclaye of the University of Nottingham, put it:

At first sight it may not seem like copyright plays a role in the fight against climate change or the protection of the environment in general. But in many ways, it does, and it does so (perhaps surprisingly) with quite some importance Indeed copyright works can be extremely varied. Literary and artistic works of various kinds as well as audiovisual works and films are subject to copyright. In the environmental field, they can range from eco-friendly architectural plans and buildings, literature, charts, diagrams, maps, photographs, to films about the weather, climate, and the size of glaciers, to software and databases used for forecasting or analysis of weather, climate, temperature patterns, changes in fauna and flora, and drought control .[2]
What is meant by the quote is that as these enumerated items of data or information have copyright, one has to confront first the concerns of the owner of the copyright before one can get access and use of all these copyrighted items. This involves licensing and licensing costs money. But what is copyright, one may ask.

Copyright is a species of intellectual property that attaches to a creative work at the moment of its creation; it provides for economic rights – those which concern exclusive authorization and in most cases, compensation, for the use of the copyrighted material, and moral rights – a set of rights which recognizes attribution of the work to the creator and the prevention of the mutilation, derogation or similar modification of the work. Thus, anyone who wants to use these copyrighted materials has to get first permission or pay, or both, before getting access to these copyrighted works and always recognize the person or entity who has created such work. That is the general rule, but there are exceptions, especially certain types of uses which the user can immediately avail of, this kind of use is called fair use and we will come to that later in this post.

When it comes to climate data, while it can be said most of them are generated and used by public entities like weather agencies, there are also some types of data that require significant investments before they are gathered and require experts who are highly educated and more often are highly-paid, to make sense of the data gathered and make them understandable to the public. This makes the data costly, but another element that adds to the cost is the licensing fees that must be paid before this data is accessed and used, and notwithstanding the fact that climate is a global concern of paramount public interest, somewhere, somehow, someone must pay for all these data that are available.

But the open-source/open-access movement has also grown significantly in recent years, thus journals, maps and other data, including the source code for climate data[3] , are freely and openly made available to those who are interested in these things and wish to research on or create new works from these materials. In the Philippines, the climate civil society group AKSYON KLIMA PILIPINAS, has disseminated one of its signature output for 2012, the disaster risk reduction-climate change adaptation (DRR-CCA) toolkit, through what is called a “copyleft” scheme, a Creative Commons license, meant to hasten the sharing and non-commercial use of the toolkit in preparing plans for DRR-CCA to users all over the Philippines, but also, if there are those interested, from outside of the country.

Amidst all these, whenever there are reports of changes to a nation’s law on copyright, everyone interested in the unfettered use of data and the recognition of the rights of creators, be it climate or not, should pay attention. Recently, Manila Standard Today and Sun Star reported that last November 19, 2012, the bicameral conference committee of the Philippine Senate and the House of Representatives has approved amendments to the copyright chapter of the Philippine Intellectual Property Code (Republic Act 8293).

The main thrust of the amendments is to create a new unit within the Philippine Intellectual Property Office called the Bureau of Copyrights and other Related Rights, which is now authorized to conduct enforcement actions supported by the PNP, NBI, Bureau of Customs, OMB, local government units and others; it also redefined legal concepts like “communication to the public” or “reproduction”; institutionalized “technological measures” and “rights management information” and penalizes their circumvention; redefined the moral right of attribution to perpetuity instead of just the lifetime of the creator plus fifty years; it also put forward changes which over-all make easier the prosecution of copyright infringement, including indirect infringement, and increases the damages, not only to actual, but also statutory damages and doubles these damages when effective technological measures and rights management information are circumvented.

What we will look into in these amendments in relation to our discussion on access and use of climate data are the changes brought about by the amendments on the doctrine or principle of fair use in the law of copyright. Fair use, in the scheme of rights provided by copyright to the creator, are a broad category of exceptions which the public can immediately avail of without even notifying the copyright holder, and the user cannot be held liable for infringement or unauthorized use of the copyright.

Fair use, as characterized by the US Supreme Court in a case, is a a “built-in safeguard” in copyright law for mediating tensions between interests of copyright owners in controlling exploitations of their works and free speech and expression interests of subsequent authors and members of the public .[4]

The approved bicameral version of the bill states the amendment in the following manner:

Sec. 12. Section 185.1 of R.A. No. 8293 is hereby amended to read as follows:

“Sec. 185. Fair Use of a Copyrighted Work.- 185.1 The fair use of a copyrighted work for criticism, comment, news reporting, teaching including limited number of copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation which is understood here to be the reproduction of the code and translation of the forms of a computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use under the criteria established by this section, to the extent that such decompilation is done for the purpose of obtaining the information necessary to achieve such inter-operability. (bold  text are the changes put forward by the amendments)

At the outset, it must be stated that the current work done by scientists, researchers, practitioners and even advocates related to climate data can come within the various categories of fair use, and if these uses may be contested, then it can be argued that they are another category of fair use under the phrase “similar purposes”.

Looking now at the changes in the law, and we will just tackle software decompilation in later blog posts, it must be recalled that the previous word there in the provision before the phrase “limited number of” was “multiple”. So before these amendments came along, a user can make multiple copies of the creative work under various fair uses enumerated in the law. With the substitution of the word “multiple” by “limited number of”, the power to set the number of what kind of use may be allowed shifts to the copyright holder. This kind of power somehow upsets the notion of what is fair use since according to legal scholars, fair use is something that is entirely up to the user and there are defenses the user can avail of in copyright law itself in case such use is questioned.

Whether this is good or bad for facilitating access to and use of climate data, especially those that are copyrighted, should be debated and examined closely, and this scrutiny should not just be limited to this kind of data but to all sorts of copyrighted materials as well, with information a pervasive commodity nowadays which people are now bombarded with on a daily basis, what with the proliferation of smartphones and tablets.

Another instance of fair use provided by the amendment is the exception granted to the blind and the visually-and reading-impaired persons, provided such copying and distributed are made on a non-profit basis and shall indicate the copyright owner and the date of the original publication.

While this kind of fair use is welcome, Congress should have also taken cared of the fair use rights of students and libraries in rural areas nationwide. This category of users are already at a disadvantage in not having updated materials, a quick read of the amendments indicate there are also significant limitations to their rights to copyrighted materials now. We will tackle those amendments in later postings, maybe with the bicameral bill already signed by Pnoy by then.

oOo

[1]See http://www.trust.org/alertnet/news/high-price-of-climate-data-damaging-disaster-preparedness-researchers/, accessed 2 February 2013

[2]Estelle, Derclaye (2011), The Role Of Copyright In The Protection Of The Environment And The Fight Against Climate Change: Is The Current Copyright System Adequate?, in http://ssrn.com/abstract=1961268 , accessed 2 February 2013

[3]See www.climatecode.org  of the Climate Code Foundation

[4]Pamela Samuelson (2009), Unbundling Fair Uses, from http://ssrn.com/abstract=1323834, accessed 2 February 2013

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