Dallas-Fort Worth cities import

Purpose

This import project will be an ongoing import of government GIS data—mainly building footprints—in the Dallas-Fort Worth metro area.

Sources/Permissions

In almost all (>99%) cases, GIS data produced or purchased by governmental entities is covered under the Texas Public Information Act^[1], which is a robust state law that grants the public the legal right to access information produced by governments with few exceptions (mainly to protect confidential information from disclosure). A member of the public can normally submit an Open Records Request for GIS data and a government agency would be legally obligated to provide such data within 10 business days, with no restrictions as to its use or reuse. In short, this means that GIS data carries a de jure public domain license in Texas if it is owned, produced, and/or procured by a government entity in Texas which is subject to the Act, regardless of whether or not a government web page explicit states that the data is public domain or a copy right is improperly claimed.

In response, many cities have begun providing their authoritative GIS data online for download or viewing through Open Data portals. (Note: Many of these OpenData portals will contain standard copyright notices at the bottom of these pages. These may be disregarded because the Texas Public Information Act gives government entities no such right to restrict the usage of data that is subject to disclosure under the Act.)

2025 Legal Concerns

The above section states that "a government agency would be legally obligated to provide such data within 10 business days, with no restrictions as to its use or reuse" (emphasis added). It further states that claims of copyright reservation from various government entities "may be disregarded because the Texas Public Information Act gives government entities no such right to restrict the usage of data that is subject to disclosure under the Act" (emphasis added).

I do not believe that either of these statements are supported by Texas PIA law. Specifically, Open Records Decision 660 states, on page five (bold emphases added):

The FCA [Federal Copyright Act] does not make information confidential, but rather gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. See id. §§ 106, 107. Assuming that the Port in fact holds a legal, enforceable copyright on the map, we believe that any use must be consistent with federal copyright law. See id. §§ 101 et seq.; Attorney General Opinion JM-672 at 2-3 (1987) (custodian of public records must comply with copyright law and is not required to furnish copies of copyrighted records by third parties). Since you represent that the Port, and not a third party, holds the copyright to the digital map, we believe that, under the Public Information Act, the Port must allow the requestor access to or copies of the information. See Minn. Op. Atty. Gen. 852, 1995 WL 775042; Miss. Op. Atty. Gen. (May 23, 1991), 1991 WL 577834 (Mississippi Highway Department may not deny public access to public records or refuse to copy public records when properly requested under Mississippi Public Records Act). Accordingly, the requestor assumes the duty of compliance with the copyright law and the risk of copyright infringement suit. See Open Records Decision No. 550 at 9 (1990).

This presents two concerns:

1. If the copyright of the data in question is held by a non-governmental third party, then the government is not required to release it. Suppose that a local governmental office transfers copyright of maps to a third-party, with only limited public use permitted (perhaps such an option would be cheaper than owning the copyright directly). In such a scenario, the Texas Public Information Act, and this Open Records Decision, indicate that the government is "not required to furnish copies of copyrighted records by third parties" (and indeed, could face legal repercussions for doing so).
2. If the copyright of the data in question is held by a governmental body directly, then that body is afforded all of the rights and protections of federal copyright law. This Decision explicitly warns that such rights includes the right to sue a requestor for copyright infringement.

Further, in the next (penultimate) paragraph of the Open Records Decision (bold emphases added):

In reaching our conclusion, we believe the Public Information Act and the FCA are compatible. While the act prohibits a governmental body from making an inquiry of a requestor, see Gov't Code § 552.222, it does not address the subsequent use of public information. Cf. Govt' Code § 552.204 (officer for public information is not responsible for requestor's use of information released under act). The act, however, does not prohibit a governmental body from protecting its copyright by entering into licensing or use agreements, or exercising its rights under the FCA. See generally Minn. Op. Atty. Gen. 852, 1995 WL 775042 (state agencies may place reasonable restrictions on use of their "original works of authorship" consistent with the rights of copyright owner under FCA); Miss. Op. Atty. Gen. (May 21, 1991), 1991 WL 577834 ("main purpose in copyrighting is to require anyone reproducing maps and data for commercial purposes to disclose the source of data"). Thus, we conclude that, while the Public Information Act requires the Port to provide access to or copies of public information, the Port may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright holder under the FCA, to the extent the information at issue is subject to copyright protection.⁸ See 17 U.S.C. §§ 102, 103. Consequently, the FCA may not be used to deny access to or copies of the information sought by the requestor under the Public Information Act.

⁸We do not believe this office is the proper forum to address the issue of whether the information at issue is copyrightable under the common-law or federal law or whether a particular use of the information is a "fair use" under section 107 of the FCA. See Attorney General Opinion DM-98 at 3 (1992) (attorney general cannot resolve fact questions in opinion process); Open Records Decision No. 426 at 5 (1985).

Here, the Decision explicitly indicates that the Texas Public Information Act does not provide any guidance on "subsequent use of public information." I.e., merely acquiring information via the PIA does not grant the requestor copyright, or any specific right, over the information. The Decision also explicitly states that governmental bodies "may place reasonable restrictions on the use of its copyrighted works consistent with the rights of a copyright holder under the FCA." Finally, in the footnote, the Decision advises against a presumption of "fair use" under the FCA.

As such, I believe that --- absent explicit language from the governmental body indicating that the data is dedicated to the public domain, or else is suitably licensed for use in OpenStreetMap (compatible with ODbL) --- more thorough, explicit permissions need to be obtained from Texas governmental bodies with respect to the copyrights that they claim/invoke on GIS data that gets imported into OpenStreetMap. Perhaps it would behoove us to make a boilerplate request letter with sufficient wording to grant incorporation of the data into OSM at least, and, if possible or desirable, more permissive usage as well.

Methodology

This import will follow the methodology described in the Dallas Import and Fort Worth, Texas import pages, which succeeded in adding several hundred thousand building footprints from the two largest cities in the Metro areas.

Building footprints will be the priority of this import project. The "Replace Geometry" tool will be used in JOSM to preserve the history of any existing building footprints.

Changesets will include the source of the data in the Source field and the hashtag #dfwCitiesImport

Cities Imported

Sources