Public transit data through an intellectual property lens: lessons about open data.

• Author: Scassa, Teresa
• Position: Introduction through IV. Asserting Intellectual Property Rights in Transit Data A. Copyright in Transit Data, p. 1759-1789 - Smart Law for Smart Cities: Regulation, Technology, and the Future of Cities

ABSTRACT

This Article examines some of the challenges presented by the transition from 'closed' to open data within the municipal context, using municipal transit data as a case study. The particular lens through which this Article examines these challenges is intellectual property law. In a 'closed data' system, intellectual property law is an important means by which legal control over data is asserted by governments and their agencies. In an 'open data' context, the freedom to use and distribute content is a freedom from IP constraints. The evolution of approaches to open municipal transit data offers some interesting examples of the role played by intellectual property at every stage in the evolution of open municipal transit data, and it highlights not just the relationship between municipalities and their residents, but also the complex relationships between municipalities, residents, and private-sector service providers.

TABLE OF CONTENTS Introduction I. A Typology of Transit Data II. Delivering Transit Data III. The Economic Value of Transit Data IV. Asserting Intellectual Property Rights in Transit Data A. Copyright in Transit Data B. Transit Data Intellectual Property Skirmishes 1. Transit Maps 2. Static Transit Data 3. Real-Time Transit Data 4. Legal Interoperability and Clear Licensing. 5. Patent Claims Conclusion INTRODUCTION

The open government data movement (1) is gathering steam both at the domestic and international levels, and, to some extent, it has more recently been folded into the broader embrace of open government. (2) The promises of open data are many, and they include transparency and accountability, (3) improved efficiency in the delivery of services and in planning activities, (4) greater citizen engagement, (5) better uptake of government services, (6) and the stimulation of innovation and economic growth. (7) The challenges posed by open data are also significant. Perhaps one of the most difficult is managing the change in institutional culture from closed to open data. (8) Wrapped up in the institutional cultural shift are issues of information control, concerns over quality and liability, difficulties in negotiating relationships with private sector suppliers around open data, inexperience and lack of resources, and concerns over lost opportunities for revenue generation. (9) At the same time, individuals are becoming increasingly vocal about their desire to have access to government data, and increasingly engaged in finding uses and applications for this data. (10)

This Article examines some of the challenges presented by the transition from closed to open data within the municipal context, and uses municipal public transit data as a case study. The choice of a municipal data case study is driven by the fact that there has been very strong and early interest in municipal data. This data relates to the communities in which people live, and to the services upon which they rely most directly in their daily lives. Within the broad category of municipal data, transit data is particularly interesting because developers have been keen to access it as open data, and there has been more experience with its use as a result. Francisca Rojas describes transit data as "one of the earliest and arguably most successful cases of open data adoption in the U.S." (11) Municipal transit data also represents a category of data in which there is both strong public interest (12) and potential economic value. (13) There has been a great deal of resident (14) mobilization in favor of open transit data. There has also been a significant degree of uptake in the development of apps related to transit data in those municipalities which have made it open. (15)

The particular lens through which this Article examines the struggles over municipal public transit data is intellectual property law. (16) In a "closed data" system, intellectual property law is the means by which legal control over data is asserted by governments and their agencies. The classic definition of "open" in relation to both data and content provides that "[a] piece of data or content is open if anyone is free to use, reuse, and redistribute it--subject only, at most, to the requirement to attribute and/or share-alike." (17) The freedom to use and distribute content is inherently a freedom from IP constraints. In this way, IP rights, and their effective waiver, are intrinsic to open data. The transition to open data, therefore, necessarily requires a relaxing of this form of proprietary control. This shift from closed to open is often difficult for governments. It is more than a simple policy change; it may require a broader change to institutional culture. (18) The evolution of approaches to open municipal transit data offers some interesting examples of the role played by intellectual property at every stage, and it highlights not just the relationship between municipalities and their residents, but also the complex relationships between municipalities and private sector service providers.

This discussion of open transit data through the lens of IP law unfolds as follows: Part I of this Article offers a discussion of the different types of transit data, with a particular focus on transit maps, static transit data, and real-time GPS data. Part II considers how transit data is delivered to the public, and how the modes of delivery have changed with emerging technologies. The economic value of transit data is also affected by technology, and Part III of this Article discusses this issue. Part IV considers how, and in what circumstances, intellectual property rights have been asserted in transit data, and examines both the scope of copyright in transit data and the different legal skirmishes over IP rights--including patent troll activities--in relation to the use of such data. The Article concludes with a discussion of the lessons to be drawn from this study of claims to IP rights in municipal transit data.

1. A TYPOLOGY OF TRANSIT DATA

   There are many different types of data generated through the operation of public transportation systems, and the variety of such data continues to grow with technology. (19) While 'transit data' as a general category could include data about any transportation system, the focus of this Article is on municipal public transit data. This Article will consider three specific categories of data that have been of interest to transit users: route maps, static transit data, and real-time GPS data. Nevertheless, it is important to keep in mind that there are many other kinds of transit data and the transit data context is in a constant state of evolution. As technology evolves, so too do the kinds and volume of data that is collected. For example, data from smart payment systems represents a relatively new category of transit data and one in which there may soon be a rather broad interest. (20)

   A map is not data so much as it is a particular way in which data is presented. Prior to the development of Web 2.0, (21) transit maps were relatively simple things; they provided visual representations of transit routes, an overview of the transit network, and the location of stops and connection points. While the plotted information might change or evolve over time, such maps were not generally subject to rapid change. These types of transit maps offered transit users a way to visualize the system on which they were travelling. While these more static, non-interactive maps are still used, they co-exist with more contemporary maps that are interactive, and that may embed a great deal of additional information. (22)

   Schedule data, also known as static transit data, (23) offers a different layer of information linked to transit routes and stops. In essence, it is timetable data. This kind of data is the result of a significant planning exercise. In drawing up transit timetables, consideration must be given to which routes are in high demand, daily and seasonal traffic patterns, demographic considerations, limitations in terms of available vehicles and their load capacity, and so on. For larger municipalities, this process would be carried out using software tools supplied by third party vendors.24 The resulting transit timetables may be subject to adjustment or periodic review or reworking of the transit system.

   Real-time transit data are defined as "data that are being collected at the same time as they are being generated and that may be disseminated immediately." (25) Such data changes rapidly and are generated as part of the day-to-day operations of a transit authority. (26) They are generated when a GPS unit installed on a transit vehicle communicates information to a server at regular intervals. This information may include the geographic coordinates of the vehicle, the vehicle and route identifiers, and the time at which the coordinates were recorded. (27) These types of data are useful in planning, assessing performance on particular routes, and evaluating the overall...