I am not an expert in copyright law either, but I think there are also
'Database rights' in the arrangement of data in a particular way' which
might apply here.
So even if the (raw) data is the Health Service's, there could be an IP
right in its particular arrangement (which it appears might be the
software vendor's in this case). Just to muddy the waters...
Bob Waixel..
Tim Trent wrote:
> Let me play the part of the data processor for a moment to see if I
> have the circumstances correct..
>
> [Start role]
> I acknowledge the data controller's ownership of the data insofar as I
> am instructed to process it.
>
> My contract, such as it is, is to continue to process the data, for a
> fee, but there is no set of terms concerning termination or alteration
> of the processing mechanism.
>
> I need more money. I have been operating at "this" level for some
> time and my costs have risen. Therefore I have given notice of a price
> increase.
>
> "You" have cancelled the contracts. That is your right, but there is
> nothing in our contract about what happens to the data on termination.
>
> You are insisting that I return your data. There are two problems
> here, neither is insurmountable:
>
> 1. The data is held in a proprietary system, something I have
> invested a great deal of time and effort in. That system is my
> intellectual property. I am willing to sell it to you, but not
> to give it to you. I expended time, cost and effort in creating
> it and it has a commercial value.
> 2. If you do not want the system but require me to export the data
> in a format to be specified, I will have to spend resources on
> exporting that data. That will cost me money. That cost, at my
> normal charge out rate, I will pass on to you.
>
>
> I have no interest in your data, will not copy it nor make use of it
> in any way, but will not release it to you in any form unless either
> of the conditions above applies. Naturally I will keep it safe.
> [end role]
>
> That may be similar to the discussions going on. It's a typical
> conversation held remarkably often when casual relationships proceed
> to become large yet informal contracts. In the scenario above the data
> processor is not being unreasonable, nor is the data controller being
> held to ransom. What we have is the baseline for negotiations. The
> problem arises when one or the other party becomes intransigent since
> this can then only be solved at law.
>
> The issue of copyright comes into the proprietary software (which is
> copyright), but not into the data held in that system (which is not),
> unless, of course, a specialist in copyright law will correct me.
>
> On 9 Feb 2010, at 18:45, Simon Howarth wrote:
>
>> Tim - I agree, it was one of those systems that I believe "just evolved".
>>
>> Doreen - Not sure about copyright. Certainly they will have copyright on
>> their system and possibly database, but not the information it
>> contains. Tim
>> has a point about nothing says he can't charge, but I would expect
>> not to be
>> held at gunpoint and the information given back if there is no legal
>> reason
>> to keep it, and bearing in mind the NHS requirements on data retention.
>>
>> Simon.
>>
>> -----Original Message-----
>> From: This list is for those interested in Data Protection issues
>> [mailto:[log in to unmask]] On Behalf Of Broom, Doreen
>> Sent: 09 February 2010 18:33
>> To: [log in to unmask]
>> <mailto:[log in to unmask]>
>> Subject: Re: [data-protection] The right of a data processor to withhold
>> information...
>>
>> Does copyright law not come into this although I am no expert!! Just a
>> thought.
>>
>> -----Original Message-----
>> From: This list is for those interested in Data Protection issues
>> [mailto:[log in to unmask]] On Behalf Of Tim Trent
>> Sent: 09 February 2010 18:17
>> To: [log in to unmask]
>> <mailto:[log in to unmask]>
>> Subject: Re: The right of a data processor to withhold information...
>>
>> I think the answer depends on the commercial contract between the two
>> organisations. It looks, as usual, as if insufficient care was taken when
>> engaging the data processor, and that the contract is more like a
>> handshake
>> than a full commercial agreement detailing what will happen at price
>> review
>> or cancellation times.
>>
>> While the Data Controller is absolutely entitled to receive the data
>> there
>> is nothing in the DPA, for example, that says that this has to be
>> supplied
>> free of charge.
>>
>> On 9 Feb 2010, at 18:01, Simon Howarth wrote:
>>
>>
>> I wonder if I may have the benefit of the considerable experience on
>> this
>> forum.
>>
>> Mentioning no names...
>>
>> An organization (NHS) has used a system developed initially by a
>> consultant
>> (medical) who then set up a business supplying the system and is no
>> longer a
>> consultant - this part is fine. The system has been in use for a few
>> years
>> with only very basic terms and conditions in force. When renewal of
>> the
>> licences became due the organization decided not to go ahead on cost
>> grounds
>> - a very significant increase was tabled.
>>
>> On requesting the information held in the database (medical details
>> and
>> images) to be released so that it could be imported into something
>> else, the
>> company concerned refused, and stated that the database is
>> "proprietary" and
>> export of the information will cost a significant amount of money.
>>
>> The information is not critical, but might be needed for case review
>> purposes.
>>
>> I wonder what people's views are on:
>>
>> 1. The right to charge for access to the data controller's own data
>> 2. The refusal to allow access to medical information and the issues
>> that
>> may bring.
>>
>> Any views would be most welcome. For what it is worth I feel that
>> there is
>> no right to refuse access to the data and at the very least the
>> proprietary
>> data should be made available so that in-house developers can get at
>> it. As
>> they are a data processor, they have no rights to hold the
>> information in
>> any form, beyond that which the controller authorized.
>>
>> Thanks in advance.
>>
>> Simon Howarth.
>> web: ComplianceAndPrivacy.com - where busy executives go to find the news
>> first
>> personal blog: timtrent.blogspot.com/ - news, views, and opinions
>> personal website: Tim's Personal Website <http://www.trent.karoo.net> -
>> more than anyone needs to know
>>
>>
>> Marketing by Permission
>> <http://feeds.feedburner.com/~r/MarketingByPermission/~6/1>
>>
>> Important: This message is private and confidential. If you have received
>> this message in error, please notify us and remove it from your
>> system. This
>> email and any attachment(s) are believed to be virus-free, but it is the
>> responsibility of the recipient to make all the necessary virus
>> checks. This
>> email and any attachments to it are copyright of Meadowood Associates,
>> owners of Compliance And Privacy, unless otherwise stated. Their copying,
>> transmission, reproduction in whole or in part may only be undertaken
>> with
>> the express permission, in writing, of Meadowood Associates, at Meadowood
>> House, 30 Redditch, Bracknell, Berkshire, RG12 0TT.
>>
>>
>> ________________________________
>> (Scotland) Act 2002.
>>
>
> ------------------------------------------------------------------------
>
> Tim Trent - Consultant
> Tel: +44 (0)7710 126618
> web: ComplianceAndPrivacy.com <http://complianceandprivacy.com> -
> where busy executives go to find the news first
> personal blog: timtrent.blogspot.com/ <http://timtrent.blogspot.com/>
> - news, views, and opinions
> personal website: Tim's Personal Website <http://www.trent.karoo.net>
> - more than anyone needs to know
>
> Marketing by Permission
> <http://feeds.feedburner.com/%7Er/MarketingByPermission/%7E6/1>
>
> Important: This message is private and confidential. If you have
> received this message in error, please notify us and remove it from
> your system. This email and any attachment(s) are believed to be
> virus-free, but it is the responsibility of the recipient to make all
> the necessary virus checks. This email and any attachments to it are
> copyright of Meadowood Associates, owners of Compliance And Privacy,
> unless otherwise stated. Their copying, transmission, reproduction in
> whole or in part may only be undertaken with the express permission,
> in writing, of Meadowood Associates, at Meadowood House, 30 Redditch,
> Bracknell, Berkshire, RG12 0TT.
>
>
> ------------------------------------------------------------------------
>
> All archives of messages are stored permanently and are available to
> the world wide web community at large at
> http://www.jiscmail.ac.uk/lists/data-protection.html
>
> Selected commands (the command has been filled in below in the body of
> the email if you are receiving emails in HTML format):
>
> * Leaving this list: send leave data-protection to
> [log in to unmask]
> <mailto:[log in to unmask]&BODY=LEAVE%20data-protection>
> * Suspending emails from all JISCMail lists: send SET * NOMAIL to
> [log in to unmask]
> <mailto:[log in to unmask]&BODY=SET%20*%20NOMAIL>
> * To receive emails from this list in text format: send SET
> data-protection NOHTML to [log in to unmask]
> <mailto:[log in to unmask]&BODY=SET%20data-protection%20NOHTML>
> * To receive emails from this list in HTML format: send SET
> data-protection HTML to [log in to unmask]
> <mailto:[log in to unmask]&BODY=SET%20data-protection%20HTML>
>
> All user commands can be found at
> http://www.jiscmail.ac.uk/help/commandref.htm and are sent in the body
> of an otherwise blank email to [log in to unmask]
> <mailto:[log in to unmask]>
>
> Any queries about sending or receiving messages please send to the
> list owner [log in to unmask]
> <mailto:[log in to unmask]>
>
> (Please send all commands to [log in to unmask]
> <mailto:[log in to unmask]> not the list or the moderators, and
> all requests for technical help to [log in to unmask]
> <mailto:[log in to unmask]>, the general office helpline)
>
> ------------------------------------------------------------------------
--
-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-- Unencrypted Email is an insecure communications medium,
-- so be aware that any correspondence may possibly be viewed
-- by others en route.
--
-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-- Robert (Bob) Waixel, MBCS, MCInstM, FHEA
-- Chartered Information Technology Professional (CITP)
-- RW Systems
-- 4 Manhattan Drive,
-- Cambridge,
-- CB4 1JL, UK tel: +44 (0) 1223 361319
-- email: <[log in to unmask]>
-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-- Emailing from Home (DELL)
-- - - - - - - - - - - - - - - - - - - - - - -
-- To err is human. To really foul things up ... you need a computer.
-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm
Any queries about sending or receiving messages please send to the list owner
[log in to unmask]
Full help Desk - please email [log in to unmask] describing your needs
To receive these emails in HTML format send the command:
SET data-protection HTML to [log in to unmask]
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
|