The Role of Maritime Law in Regulating Data Buoys and Oceanographic Sensors: Balancing Open Data Access with Commercial Interests
1.2 Significance of Data Buoys and Oceanographic Sensors
Aalborg University, Denmark.
Data buoys and oceanographic sensors serve a wide range of scientific, environmental and industrial purposes. They are used to monitor real-time meteorological/oceanographic conditions, climate changes, and movement of ocean currents. Early development of oceanographic sensors can be traced back to 1876, with the invention of the reversing thermometer, used to collect temperature data. The technology in this field has progressed rapidly, particularly in the last 35 years, and more so in the last decade. This can be largely attributed to technological advancements in microelectronics and telecommunication. Modern day oceanographic sensors are sophisticated, versatile and highly reliable. They have the capability to automate data collection and storage, with subsequent transmission to a ground station by way of satellite or other means. This remote access to data has led to a significant increase in the usage of sensors, particularly by commercial industries. The value of data obtained from these sensors is substantial. It has been used to accurately forecast weather and climate changes, better understand complex ocean processes and to facilitate informed decisions in offshore industries. High quality data reliably increases the economic efficiency and reduces the chances of damage or loss in many marine-related activities. An example is in the oil industry, where knowledge of local metocean conditions may be crucial in decision making for offshore exploration and production. With the increasing demand for such data by commercial industries, disputes over data ownership and accessibility become more prevalent. This issue is central to the effectiveness of legal frameworks governing marine scientific research. An analysis of this issue will be beneficial in understanding the implications of such frameworks on the industry and the role of international conventions in balancing conflicting interests.
1.3 Research Objectives
A statement of the associations, it is hard to contend against the account that information has upset the structure and refining of strategies. Utilization of information and all the more comprehensively, of logical data, has ceaselessly and all the more as of late quickly, assumed a basic job influencing approach improvement in marine law, the same number of worldwide and provincial instruments these days are portrayed as being information driven. While the general advantages of having more noteworthy measure of logical data on which to base arrangement can barely be argued, this will probably involve several challenges. One of these is in guaranteeing that the information gathered will propel the reason for logical research and of the preservation and the feasible utilization of marine assets, and won’t be utilized for other reason focal points. A further inquiry is the way the information will impact conflicts about the regionalized or waning asset, and how to accommodate logical information customarily observed as being target, with open view of science that challenged whether there can be nonpartisan investigation of an issue where stakes are high. At last, and given the expanding job of open private organizations in expressing marine arrangement, there will be heavier pressure to use logical information to additionally private intrigue. Answering these request needs cautious issues of how best control logical information to the ideal closure, remembering existing amazingly sectoral, and dissected nature of worldwide sea undertakings. This plainly has suggestions for the present moment and for the fate of maritime law.
2. Legal Framework for Data Buoys and Oceanographic Sensors
Maritime law is the term given to the legal framework which covers issues such as data buoys and oceanographic sensors. This statute of law is one of the oldest and most complex legal frameworks in that it regulates ever-changing and often unclear boundaries. The earliest sources of maritime law date back to the ancient Phoenician sea traders. Indeed, there are references to maritime law in the Code of Hammurabi and the Laws of the Rhodes which established that captured at sea were to be tried in the state from which their attackers came and the burden of proof would be on them to demonstrate that their actions were lawful. These early examples of maritime law lay down the fundamental principle that a set of laws should exist specific to oceanic issues.
Maritime law’s vast scope means that in the limited space of this essay, we will only be able to provide a taster of the issues it covers in relation to data collection. However, we are able to broadly say that maritime law has been used to regulate data collection and ownership by consolidating a set of rules for the use of data buoys and oceanographic sensors and by encouraging states to work together to resolve ownership and access issues for specific areas of the ocean.
2.1 International Conventions and Treaties
Other specific treaties exist which pertain to environmental issues and protection and conservation of the marine environment. These perhaps have more relevance as they address laws surrounding the protection of the environment. Included in these treaties are various provisions for scientific research; however, again, the issue of oceanographic data is not specifically addressed.
At the apex of international law are the Law of the Sea Conventions. The First Convention took place in 1958 and was ratified into the United Nations Convention on Law of the Sea, which is an international treaty. Primarily, the inception of these conventions was to dictate laws pertaining to any ocean transportation, be it commercial, military, or leisure. These conventions do set regulations on the collection of data; however, they fail to address any issues pertinent to oceanographic data. Although the conventions are still in force and are considered a staple of international law, without a specific provision for oceanographic data, there is a lack of definite law.
In order to understand the current legal status of open data collected from oceanographic sensors, it is necessary to compare the policies from many countries. The policies of today are based upon international and national laws and regulations. The jurisprudence of these laws was drafted in time periods where data at sea was not as easily collectable and transferable as it is today.
2.2 National Maritime Laws and Regulations
A 1971 agreement between the United States and the Soviet Union concerning research cooperation in the field of oceanography and marine meteorology suggested that a bilateral exchange of equipment would require mutual arrangements and that a statement of research activities shall include the equipment to be used. This agreement implied the necessity of equipment registration and potentially reciprocal permissions for foreign research equipment. Similar agreements may have been made between other countries participating in marine research. Such specific consensual arrangements may minimize confusions and conflicts regarding foreign research equipment; however, they are time-consuming to negotiate and may require renegotiation in the event of changes to participating parties and other affected laws.
Each nation has the sovereign authority to pass laws governing the use of its marine areas and the protection of the marine environment. The United States, through the Department of Navy, has shown particular interest in clarifying the legal status of foreign-owned oceanographic research equipment introduced into U.S. waters. Generally, the United States has taken the position that foreign-owned research equipment is subject to U.S. laws and regulations while in U.S. waters. This assertion is based on the doctrine of “objective territoriality,” which holds that a nation has the right to regulate the conduct of persons and corporations having a “real and substantial connection” to the regulating state, with respect to activities having an impact on its legitimate interests, regardless of those activities’ actual situs. Unfortunately, no clear definitions of equipment “ownership” or “substantial connection” exist in international law, resulting in potential conflicts between U.S. enforcement actions and protestations by foreign governments and researchers.
2.3 Case Studies on Legal Challenges
Case number three involves a Drifter Experiment designed to track surface current movement in the vicinity of the Azores conducted by the Office of Naval Research and co a ship-operating Institution. The project involved release of 20-30 free floating GPS tracked drifters in high seas in the vicinity of the Azores Island with intentions of retrieval of equipment and data after a period of 1-3 months. At the time of this study, there were reported disagreements between the scientists and administrative personnel of the ship-operating institution on the legal status of the project in relation to equipment ownership and a separate law of the sea case involving the ownership of similar equipment released by a separate party in the same area.
The second case study involved a similar type of mooring in the Italy-Libya Fisheries Monitoring Area, Italian High Seas (international waters) Mediterranean agreed by Italy and Libya. In this case, the investigational nature of the project and the legal status of a research activity in an area allocated for fishery management were discussed in correspondence with the legal attaches of both countries. At each step of the project, Italian authorities were kept informed of the nature and location of the scientific activity. Although the project was terminated prematurely due to destruction of the mooring by a passing vessel, the legal status of the scientific activity was clearly established until the time of termination.
The study concludes that without formal agreement with Canadian authorities, the scientists should voluntarily remove the buoy and in the event of damage by fishing activities to Canadian regulations, the scientists could be held responsible for damages. In this case, the scientific party failed to establish a legal status for the buoy and thus the scientific activity had no defined legal framework in relation to the Canadian government and existing laws and regulations in the area.
This section will examine three case studies involving deployment of scientific research equipment in ocean areas governed by different legal systems. Shotwell and Helfrich (1993) discuss the case of a free floating, iceberg-tethered mooring instrument that was deployed on an ad hoc basis in the 1980’s north of 68° in the North Atlantic region earmarked as a fishery protection zone by the Northwest Atlantic Fisheries Organization (NAFO). The mooring project was no cost to the scientific party. However, when the Canadian government provides notice to the data buoy sponsors in 1987 that the buoy was deployed in the area allocated in the 1985 NAFO conservation and enforcement measures and requested information as to the nature of the project, the scientists were unable to procure an official agreement in writing or verbally from Canadian officials concerning the nature of scientific activity and the legal status of the buoy in relation to fishing activities and possible harm to the buoy.
3. Balancing Open Data Access and Commercial Interests
Importance of open data access in oceanographic research
The traditional notion of scientific research as a public good often leads oceanographers to assume that their research data should be freely available to any interested party. Moreover, public data access is required by many governmental and academic funding agencies. These expectations are reiterated in various international statements, such as Agenda 21 adopted by the United Nations Conference on Environment and Development (June 1992), which declares that data and information are an essential underpinning for sustainable development and must be made available to all users. According to the Intergovernmental Oceanographic Commission’s data policy, data must be made fully and freely available to the international community at the earliest possible date. Delayed availability and restrictions to data access must be fully justified and should apply to only those data requiring special protection because they have commercial value or their release could cause harm to the originating institution or agency. “Realizing the potential benefits to the global research community of increased access to environmental data, the National Science Foundation (NSF)’s Division of Ocean Sciences has put forth a new policy effective October 1, 1999 requiring that all data from research projects supported by NSF be made publicly available in a timely manner with as few restrictions as possible. These policy expectations are quite reasonable for publicly funded research, which comprises the majority of academic research. In practice, however, the potential benefits and costs of open data access versus restricted access are highly complex and depend on the circumstances of the data (i.e. its type, anticipated future uses, and its importance to the public and various user groups).
Potential impacts on commercial interests
The move towards open data access in oceanography can have significant impacts on commercial interests. Data and information have become increasingly important and valuable as resources in the modern world, particularly with the rapid growth of information and communication technologies. Data has been termed the oil of the information age, implying that it is a resource worth investing in and capable of generating wealth. The value of data can extend far beyond its original purpose and user—advances in data mining and storage technologies mean that data can be stored indefinitely and retrieved for uses that were never originally anticipated. Measures to make data freely available to the public and other researchers can lead to de facto expropriation of data that has potential commercial value. This situation can be analogous to expropriation of land for public use, and there may be various adverse impacts on data owners; theoretically or actually loss of exclusivity and control of data, erosion of its value as a proprietary resource, and costs incurred in making data suitable for alternative uses or in monitoring and protecting it from unwanted uses. At the extreme, potential costs and risks may lead to deterrence from undertaking certain types of data gathering activities.
3.1 Importance of Open Data Access in Oceanographic Research
Many nations, and the global community as a whole, lack the resources to acquire data that are essential for the peaceful and sustainable use of the ocean, and/or are at a serious disadvantage in negotiations with entities that own or control such data. This leads to a second-class ‘have not’ category with regard to access to information, an inequity that compounds economic and environmental problems. The provision of open and equal access to data can ameliorate this situation and help to build confidence and trust among nations and user groups.
The hallmark of scientific research is the open sharing of methods, data, and results. For oceanography, this means that all environmental data should be made freely available to the international community. By and large, this ideal has been attainable, especially in the last decade and with the advent of the World Wide Web. However, recent increases in academic, commercial, and military interest in the marine environment have raised concerns about the future of open access to oceanographic data. Historically, military interests have often led scientific research into secrecy with resulting classification of data (e.g., ocean basin thermocline research during the Cold War era). While the vast majority of present oceanographic research is funded publicly or philanthropically and results are published in the open literature, there are new concerns that publicly available data may be used to further exclusive economic and military aims.
This is of special concern to developing nations and the neediest sectors of the international community. Why the data should be made available to the international community has been best stated by the Intergovernmental Oceanographic Commission:
3.2 Potential Impacts on Commercial Interests
Given the value of the data to the general scientific community, it is likely that data buoys and oceanographic sensors have a significant role in the advancement of knowledge in ocean and atmospheric science. The proposed scheme of UNCLOS Article 2(3) seeks to omit data collection and resultant IP issues and focus on the concept of sharing metadata. However, in reality the product will still be the collection and dissemination of scientific data. In this case, making all metadata and resultant data freely available will almost certainly discourage the involvement of private industry. If companies believe that their investment in data collection will lead only to public disclosure, they will be unwilling to enter the market. Data collection being a costly exercise, in water and atmosphere, companies will need some form of assurance that there will be a return on their investment. The very existence and development of oceanography and atmospheric science as a recognised discipline is in many ways thanks to the involvement of commercial and military interests. One of the driving forces behind the recent explosion in oceanography has been the vast improvements in our scientific understanding of ocean and atmosphere as a result of a need to improve weather forecasting for military and commercial operations. The availability of data buoys and oceanographic sensors employed for the above purposes makes up a significant portion of the new scientific data. If such instruments are not providing a return to military or commercial parties, it is unlikely that they will continue to be employed. An example can be seen in the recent decision by the National Australia Bank to cease sponsorship of the Australian Rugby Union, after they decided that it could not provide sufficient brand exposure in their target markets. Without the involvement of such parties, the amount and diversity of data collection in ocean and atmospheric science will be greatly reduced.
3.3 Strategies for Balancing Open Data Access and Commercial Interests
The complex and interrelated interests in processing and exchanging data in order to achieve the goals of using the world’s ocean as a global system is discussed in Law of the Sea terms. The value of unimpeded open data access is widely recognised, but the growth of the commercial sector in the last few decades has led to increased participation of private entities in – and reliance upon – oceanographic research and data collection. The result has been an increasing number of proprietary restrictions on the exchange and use of collected data, which runs counter to the interest of the global community in the ocean as a common resource, and the best interests of the companies themselves. Quite simply, if a data buoy is beyond the effective reach of national jurisdiction, there is a risk that it may not be permitted to transmit data at all. Furthermore, the heaviest reliance on proprietary data is often found in cases concerning data that has been gathered specifically with a commercial end in mind. Because such instances are increasingly common in the developing ocean technology field, this issue is not limited to large multinational resource extraction industries, but will become a concern for a wide variety of companies in various states of national jurisdiction.
4. Future Perspectives and Recommendations
Traditionally, data collection by marine scientists has been a largely unregulated activity. Data were often collected opportunistically and stored along with metadata (data describing the data) in an investigator’s personal files. Sharing of data from investigator to investigator commonly involved little more than handing off a disk or a hard drive. With the advent of new data collection technologies that provide capabilities for widespread and open data access, traditional data collection practices are giving way to a new era of increased data sharing and transparency. This shift in scientific culture is mirrored by evolving trends in domestic and international policy that advocate for open access to publicly funded research data (Holdren, 2013). Open data access clearly benefits the scientific community and the general public, providing opportunities for expanded scientific collaboration, increased data reuse, and greater return on investment for publicly funded research.
Emerging technologies in the field of marine science provide considerable promise for improving our understanding of oceanic processes and phenomena. Recent years have witnessed rapid developments in the field of autonomous ocean observing systems. Several pilot operational systems and a number of prototype systems have been implemented to advance the technology and determine the most effective and cost-efficient methods for collection of specific oceanic data (Freitag and McGehee, 2003). Data buoys and autonomous profiling floats represent a major advance over traditional ship-based data collection, providing near real-time data access and increased temporal resolution at a fraction of the cost. Long-endurance autonomous underwater vehicles (AUVs) equipped with a variety of oceanographic sensors offer capabilities for high resolution spatial mapping of ocean properties and processes. While these technologies undoubtedly improve the quality and quantity of data available to scientists, they also present significant challenges for data management and governance.
4.1 Emerging Technologies and their Implications
In situations where commercial interests are conflicting with public needs, it may be necessary to control or exclude the commercial activities. This can best be accomplished by national ocean zone and resource management planning and the allocation of specific use privileges based on compatibility with other uses and the potential environmental impacts, according to the Coastal Zone Management Act of 1972. This would be a clear and more effective alternative to attempting to civil specialize in admiral law to make a case-by-case determination of the common law regulations and the public trust doctrine, and whether the particular commercial activity is conflicting with existing uses or the public needs. Steps can also serve to protect present academic and public trails to improve marine environmental status and thereby maintain a relatively depolluted environment in which certain environmental data may have comparative value.
It is essential to recognize the specific public needs for the data gathered by these technological systems. In some instances, such as warnings of impending hazardous coastal conditions (tsunamis, sea fogs, etc.), these needs may be directly analogous to those met by current government ocean buoy programs. In other cases, the data may meet a public need but without government funding and consequently not provide a financial strategic scape for the realization of knowing what they are getting into. An example of this is the monitoring of US coastal water quality. The requirements of the 1990 amendments to the Clean Water Act for state beach sanitary survey programs are no longer funded by federal grants. In order to dump the financial burden and prevent it from being prohibitive inaction, several state health departments may seek contractual agreements for specific data purchases from commercial sea sensor operations.
Evolving technologies contribute to the complex nature of data buoy and oceanographic sensor governance. Traditional government-based regulation has been effective for surface drifting buoys and moored buoys without sensors, and limited in its effectiveness for regulating academic/research programs. Commercial interests, in comparison to the existing voluntary self-regulation of academic institutions, are both a blessing and a curse. Southern plains merchants are eager to exploit this new resource and are thereby primary concerns about the possibility of governing high-tech floats and sensors from commercial groups.
4.2 Policy Recommendations for Effective Regulation
4. It is recognized that the above are no easy tasks and they represent a significant departure from the status quo in data buoy deployment and data regulation. An informed public debate is warranted to consider whether the marginal costs of imposing or relaxing data regulations are more or less detrimental to the common good, and in turn consider alternative measures of achieving an equal or greater benefit. This may require revisiting data regulations at a later time in light of new scientific knowledge and changes in the environment and the human condition. In the event that a state has decided that data regulation is in its best interests, proactive cooperation with other states and data providers is essential to minimize conflicts and seek alternative solutions that best realize the common good.
3. Finally, the science community and private sector must recognize its responsibilities as stakeholders in ocean resources and users of the global commons. They too must adhere to a code of practice that balances their own interests with the common good and commit to upholding the rule of law. This includes good stewardship of the areas where data is collected and a willingness to share data and knowledge with others.
2. The Law of the Sea requires a balance between national interests and the common good of all states. States must carefully consider how their national policies serve their own short-term interests at the expense of others or the common good, and strive to develop effective science-based policies to manage and protect the ocean environment for future generations. Whether restrictions to data buoy deployment and data sharing are propelled by an interest to protect national resources, the environment, commerce, public health or safety, it is easy to identify with the former. In practice, it is difficult to say that one state’s data on ocean/sea conditions is more or less detrimental to the global environment or other states, and conceded data is often used to base further decisions that may affect the resources or environment of another state. National interests also often conflict with rules of the convention such as the EEZ provisions that seek to maximize the resource utilization of less developed states and promote the development and transfer of marine science and technology to developing states. In these cases where state policies are incongruous with an equal balance of national interests and the common good, NGOs and international organizations have a role.
1. States must acknowledge the global and borderless nature of ocean science and consider the impact of their national policies and regulations. Decisions to regulate the deployment and collection of ocean data have the potential to directly affect the scientific community’s ability to collect and share data. Should policies appear too restrictive, the community may consider relocating their efforts to other less regulated regions. Commercial interests, on the other hand, represent an interest to protect a potential investment in data collection and ocean resources by limiting the number of instruments and/or access to data by others. Policies to limit deployment or data collection by commercial interests from host countries, or other data providers, could engender an outright refusal to deploy or share data on specific regions or resources. Such a tragedy of the anti-commons would result in a lose/lose scenario for both data collectors and the host countries and could greatly compromise the ability to implement effective science-based management of ocean resources.
4.3 Collaborative Approaches for Data Sharing and Governance
Policies surrounding legal frameworks and data sharing agreements will impact the ability for data to be integrated into ocean and atmospheric prediction systems. Existing legal and policy frameworks regarding intellectual property and data rights for data collected in international waters run the spectrum from non-existent to stringent. Complicating factors include the ability to capitalize on weather and climate predictions derived from another’s data as well as the public’s interest in open access to all data relevant to public safety and the global commons. The former creates the potential for public and private entities to withhold valuable data from prediction systems if it is not in their immediate interest to contribute. The latter supports an open access philosophy of data sharing, however, there are various interpretations on what type of data should be freely available and what data has potential economic value and should be protected for a certain period of time. The World Meteorological Organization has recognized the need for open data exchange and has developed various recommendations and guidelines for implementations. However, an international agreement on what data should be freely available and how to protect the interests of data generators has not been realized. With support from the National Science Foundation, an alliance of scientists implementing prediction systems for the North American Great Lakes have developed a set of recommendations for data and model sharing in the Great Lakes community. This case study provides a positive example of data sharing and governance in a regional prediction system.
