From: Research Data Management discussion list [[log in to unmask]] on behalf of Rob Baxter [[log in to unmask]]
Sent: 08 January 2015 22:57
To: [log in to unmask]
Subject: Re: Ownership of data collected by postgrads

Hi folks,

This may be of interest to the list. Partly as a response to exactly these sorts of questions from our researcher-users, the EUDAT project has developed -- with proper legal guidance! -- a "licence wizard" web tool. There's a demo of it running at the moment at GitHub: http://ufal.github.io/lindat-license-selector/. We plan to roll this into the EUDAT B2SHARE CKAN/Invenio-based data deposit service in the near future, but I believe the software itself will also be released -- although under what licence I don't currently know :-). We showed it late last year to EUDAT's working group on data policy and it went down very well; any additional feedback from this list would be particularly valuable.

And on a related note, I read on the Register today that the Bill and Melinda Gates Foundation are about to mandate open access under CC BY 4.0 for any publications and data created from work they fund. CC BY 4.0 (the version that includes the database rights mentioned in Charles Oppenheim's note below) is also EUDAT's recommended licensing scheme. I think there's a degree of convergence emerging in this area, although we're still at early doors. Doesn't help with IPR encumbrance of legacy data, of course, but at least future data deposits may be heading towards a common licence.

Cheers,
    Rob

I believe the main risk you are trying to mitigate in a deposit agreement (alongside a take-down policy) is the likelihood that the depositor is actually depositing someone else's IP, without their permission.  If you ask them to confirm they are a university employee and have the permission of the copyright owner then that seems to me - as a non-lawyer or expert - to cover the scenario that the institution already owns the IP.

There may also be a case for further checks for those specific contractual agreements with funders and/or collaborators, so for example if an RA uploads data that is owned by an industrial partner, and just ticks the boxes anyway, you still catch these cases before publication. A take-down policy may mitigate some of the risk of being sued by the IP owner, but there will be other concerns if someone else has already cited or reused data.

I've found that researchers who make substantial use of secondary data tend to be well aware of rights issues, but I would not want to assume that's the case. It may be helpful to offer your depositors further guidance on how they can identify who the IP owner is, and what to do if they can't. There was some useful toolkit guidance on that produced by the 'Web2rights' project about 5 years ago (see http://www.web2rights.com/). As that was not particularly data specific, they are best read alongside something that covers the Database Right and other IP issues specific to data, such as the DCC how to guide on licensing.

In case its helpful, I copied below your message the full text of Charles Oppenheim's summary of the legal position on data ownership and IP, that Peter Murray-Rust posted to the OKFN Open Science list on 19.5.14

Also it may be worth following up specific questions with Jisc, who are providing support on legal aspects of technology via [log in to unmask]

kind regards,

Angus


On 08/01/2015 11:33, Anna Clements wrote:

Many thanks to everyone for responding - some very useful expert views so thanks for sharing.

Seems though that there isn't a real consensus but I guess that may crystalise as research data sets become more prominent as a research output in their own right.

My question was prompted by the need to develop a Deposit Licence for our upcoming research data repository.   For full-text deposits this is fairly straightforward given that in our  IP policy the Institution waives its rights to IP in journal articles, which seems to be the norm.  However for research data, software, etc it doesn't and so the IP remains with the University (unless their are specific contractual agreements with funders and/or collaborators)  - and looking at other IP policies this seems to be the norm also.  

I'm therefore struggling to understand who has the legal right to deposit the data ... if the University retains IP then shouldn't that be reflected in the deposit licence.  However those licences that I've looked at ... Datashare at Edinburgh, QUB,  Exeter  Southampton all require the depositor to confirm that they have the rights to deposit the data.

Am I making a mountain out of a mole hill ... I am not an IPR or Copyright expert so apologies if this is a naive question.

All the best

Anna

______________________________________________________

Anna Clements | Head of Research Data and Information Services

University of St Andrews Library | North Street | St Andrews | KY16 9TR|

T:01334 462761 | @AnnaKClements

In a twitter conversation Charles Oppenheim - Professor Emeritus, UCL (I think?) has given his opinion on ownership of data and also our move into content mining. I reproduce his mail verbatim.

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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