Thursday, 25 October 2007

A hazy map on public property rights

I wrote this a few weeks back. It was something I had been wanting to write since the news broke that SLA had won against Virtual Map, but just hadn't been able to find the time to do it. I finally got down to it, mostly because the commentary editor of TODAY was leaving and she asked for one last piece.

It came out last week. I thought that was good timing, because I do have many more interests and issues apart from Section 377A, as my speech showed.

SLA wrote a reply, which for some reason I could not locate on the text version of TODAY. The link to the PDF version is here (click on the "Voices" section heading).

Their response did not address two points I had made. Firstly, I asked why they did not say more about their dispute with Virtual Map, when filing the affidavit on behalf of NTUC Income. SLA's response that they were not a party does not address this.

Secondly, my reference to how SLA did not limit Virtual Map's right to deal with the licensed content should be read in the context of the article, i.e. SLA did not limit how/whether Virtual Map could sue alleged infringers, based on SLA licensed content. SLA also did not address this.

A hazy map on public property rights

SLA's actions with regard to Virtual Map case puzzling

Tuesday • October 16, 2007

Siew Kum Hong

Mention "Virtual Map" to a local businessman, and he just might respond with some choice ear-burning words. That was the depth of anger that the company behind aroused a few years back, when it wrote to hundreds of companies demanding damages and legal expenses.

So, I found it curious that there was barely a murmur when a court recently found Virtual Map liable, for infringing the Singapore Land Authority's (SLA's) copyrights in the data that Virtual Map had relied on to create its online maps. I will not discuss that decision in detail, as Virtual Map is reportedly appealing against the court's decision.

But I have found the SLA's conduct throughout all this to be curious. When the news of Virtual Map's actions first broke, many would-be defendants clamoured for the SLA to step in, arguing that the maps in question were owned by the SLA and licensed to Virtual Map.

Indeed, in its lawsuit against Virtual Map, the SLA admitted that it had terminated its licence agreements with Virtual Map because of public outrage over Virtual Map's enforcement actions.

But before that, the SLA remained strangely non-committal even as Virtual Map sued companies resisting their demands. When Virtual Map took NTUC Income to court, NTUC's lawyers filed an affidavit made by an SLA senior manager, which was described by the judge in a later case involving Virtual Map as being "somewhat vague and ambivalent".

Yet, barely two weeks before that affidavit, the SLA had already written to Virtual Map to terminate its licence agreements with Virtual Map.

While the termination of those licence agreements is unlikely to have changed the various courts' conclusion, it was nevertheless a material fact that could well have influenced the strategy of defendants such as NTUC Income.

For instance, if NTUC Income had known of a dispute between the SLA and Virtual Map over the scope of Virtual Map's rights to the maps, it might not have settled with Virtual Map in December 2004. The SLA's explanation that it was seeking legal advice during that period is unsatisfactory, as that would not have precluded the SLA from disclosing the termination of the agreements. So, why did the SLA stay silent for so long?

The SLA's current lawsuit against Virtual Map raises many other interesting questions. What happens to the money that Virtual Map had collected previously, both before and after the termination of its agreements with the SLA? Will Virtual Map be required to pay any part of that to the SLA, and if so, is that justifiable? What about the investigation fees paid to Virtual Map's investigators, who may have been related to Virtual Map?

And do those defendants who had unsuccessfully asked the SLA for assistance have any recourse against the SLA now? Why didn't the SLA disclose its termination of Virtual Map's licences, or the existence of its dispute with Virtual Map, earlier?

The case also throws into sharp focus a bigger issue relating to the exploitation of government-owned intellectual property. In the course of performing their duties, government agencies will create many types of intellectual property, of which the most commercially-valuable will normally be databases of factual information that, practically speaking, cannot be obtained elsewhere.

While there are valid questions on the scope of the copyright, if any, in such factual databases, it is also worth considering how such intellectual property is exploited. The Virtual Map case has demonstrated that the public will not take kindly to any perception that a private entity is profiting, at its expense, from government-owned intellectual property.

In my view, that is only right, since we are all taxpayers and, hence, such intellectual property ultimately belongs to us indirectly. To the extent that government agencies license their intellectual property to private entities, they also have a duty and responsibility to ensure that the intellectual property is not used unethically or in any other manner that unfairly prejudices the public.

Indeed, there is a strong case for arguing that government agencies should not view their intellectual property as revenue-generating asset, but as public property held on trust for Singaporeans and hence to be used only in ways that benefit the public. Furthermore, a reduced focus on revenue generation could create greater incentive for entrepreneurs to build innovative services leveraging off such intellectual property.

In the Virtual Map case, the SLA licensed its data to Virtual Map for a fee, but apparently did nothing to restrict how Virtual Map could deal with the licensed materials. The result? Anger and aggravation, lawsuits all around and unanswered questions aplenty. It's time for the SLA to answer some of them.

The writer is a Nominated Member of Parliament and corporate counsel, commenting in his personal capacity. He was previously in private practice specialising in intellectual property and Internet law.


ahblabla said...

It does not appear that your link is working; there are no articles in the voices section in Today online pertaining to the SLA vs VM case?

Siew Kum Hong said...

To ahblabla: When you click on the link, it will display the PDF site. On the right hand frame, select "Voices" under section headings. The PDF of the relevant page will then appear in the main frame.

Hendra said...

Well, SLA is SLA. They are the authority. What do u expect them to say? I dont think Copyright owners will want to take any action in Singapore now. Either you get an outcry from the public (like the Odex saga) or you will be sued by the Authority. Either way, you are screwed. Companies with IP, be prepared to have your Intellectual Property Works copied. Aint nothing you can do especially if its copied by the public in general. Afterall --> Public = Voters.


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