This is my take on UK/EU law. US law is different. And remember, I'm not a lawyer.
The question needs to be split up into two parts, i.e., what rights are associated with data, and then separately, who owns the rights?
RIGHTS
A single datum never enjoys any rights. To attract protection, we must be dealing with a collection of data. There is no clear legal guidance on how big a collection has to be before it can attract
rights, but a good working estimate in my view would be 10 or more pieces of datum mean the collection potentially enjoys rights.
There are two types of right involved - database right and copyright. A collection of data enjoys COPYRIGHT if the selection and arrangement of the data has involved skill and judgement. Thus, if I synthesise
20 compounds and record the melting point of each one, there is no copyright in the listing because I have used no skill or judgement in selecting which I record and which I don't record. But if I synthesise 100, but only record the melting points of 20 of
them, selected on some basis (potentially pharmaceutically active, those with the highest melting points, etc.) then that collection of 20 melting points can enjoy copyright. (If this sounds a bit crazy to you, you'll find quite a lot of the law on this is
counter-intuitive, so bear with me). Copyright will also protect the layout, design and typography of a particular table or other way of presenting some data. This "publisher's copyright" lasts for 25 years from data of publication and is a quite separate
right to right in the data collection itself.
A collection of data enjoys DATABASE RIGHTS if I have expended significant time and effort in obtaining, verifying and presenting the data. (Note here, a data collection can enjoy copyright + database
right, database right alone, copyright alone, or have no rights). Now "obtaining verifying and presenting" sounds straightforward, but it isn't. An important European Court case concluded that if the data just happens to naturally fall out of what you were
doing, then it does NOT enjoy database right. So, if I synthesised a load of new compounds and routinely recorded the melting point of each, I do not get database rights in the data. I only get database rights if I take the data from somewhere else and then
expend effort in verifying and presenting the data. It's counter-intruitive, but that's the law now. (The case was British HorseRacing Board versus William Hill). To put it in a nutshell: database rights protects work carried out on PRE-EXISTING data, and
does not protect NEWLY CREATED information. Interestingly, this makes data obtained using TDM of pre-existing data liable for database right protection; you might want to ponder about the implications of that fact bearing in mind the change to UK law just
passed.
OWNERSHIP
Assuming there are some rights associated with a collection of data, then we have to work out who owns it. Let us assume that the data has been created/collected by one of the following types: a student;
a research associate/assistant; an academic; an employee in the private sector. Let's look at each in turn:
If a STUDENT has created the data as part of a project and they are self-funded, or receive a grant, then the student owns the rights to the data. If anyone else wants to use the data, they must get
permission from the student. The student cannot be forced to agree. (Any attempt to REQUIRE the student to assign or license rights would be invalid in law; get the student to voluntarily agree). If the student has been following the guidance of a supervisor,
there is an arguable case that the supervisor is joint owner (see below for details of academics' rights), but still the student's permission is required before any exploitation can take place. If the student was being paid a salary to do the research, say
as a vacation job, then their position is as for research assistants.
If a RESEARCH ASSISTANT/ASSOCIATE has created the data, his or her employer automatically owns the rights unless there is some agreement to the contrary. The employer might be private sector, a University,
etc., etc.
If it is an ACADEMIC, then, depending on the precise contract of employment, the employer, e.g., University, in theory owns the rights but if custom and practice has left such rights to the academic,
then that fact over-rides the formal legal position. In practice, then, I would argue that in most cases the academic owns the rights to the data. So if the data is the result of an academic supervising a student, the two individuals jointly own the rights
to the data. One cannot do anything with the data without the permission of the other. So let's hope they get on with each other!
PRIVATE SECTOR EMPLOYEES are straightforward. Their employer owns the rights.
What about the grant funder? The formal legal position is that they own NO rights unless the terms of the grant funding say otherwise and custom and practice does not over-ride the grant terms. The grant
funder of a student never has any rights unless there is an explicit contractual term to the contrary.
Of course, if there are no rights at all associated with some collection of data, a third party can do what they like with it, including selling it. By now I trust you are totally confused and wish you
hadn't raised the subject. the whole subject is made more difficult by (a) people making assumptions about what rights exist and (b) making assumptions about who owns those rights, without exploring the detail.
I rest my case, m'lud
Charles
Professor Charles Oppenheim
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Unilever Centre, Dep. Of Chemistry