IPR: Legal Issues in Research Data Collection and Sharing by EUDAT

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Legal Issues in Research Data Collection and Sharing : Intellectual Property Rights

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Part of an EUDAT series on Legal Issues www.eudat.eu

Content generated by

Pawel Kamocki, IDS Mannheim

V1.0 – June 2014

Table of ContentsI. Intellectual Property Rights

A. CopyrightB. sui generis Database RightC. Trade SecretD. Licensing

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1. Creative Commons2. Other public licenses3. EUDAT Policy

II. About EUDAT

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I. Intellectual Property RightsE

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• Property?-Usus - the right to use-Fructus - the right to enjoy the fruits (make profits)-Abusus - the right to dispose of

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• Intellectual?-in products of human intellect-ger. Geistiges Eigentum-intangible assets (distinct from corpus mechanicum)

I. Intellectual Property Rights cover

PatentsCopyright

Industrial Property

Neighboring (Related) Rights

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Trademarks Database right

(Industrial) Designs Trade secret

Neighboring (Related) Rights

A. Copyright Directives• the Berne Convention for the protection of literary and artistic works

1886• Agreement on Trade-Related Aspects of Intellectual Property Rights

1994• World Intellectual Property Organisation's Copyright Treaty 1996• Directive 2001/29/EC of 22 May 2001 on the harmonization of certain

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• Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright in the information society

• Directive 93/98/EEC harmonizing the term of protection of copyright

• Directive 2009/24/EC on the legal protection of computer programs

• National implementations (CDPA, UrhG, Code de la propriété intellectuelle…)

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A. Copyright

• What is protected?• What rights are reserved?• For how long?

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• For how long?• Are there any exceptions?

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A. Copyright• What is protected?

• scientific, literary and artistic works, regardless of their value • NOT: ideas, raw facts, mathematical formulas• originality = choice (personal imprint; selection and arrangement;

labour, skill and judgement; author’s own intellectual creation)• in some jurisdictions: fixation

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• in some jurisdictions: fixation• also: derivative works - translations, adaptations• also: compilations, collections• no formalities required

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• What rights are reserved?• economic

• make copies• make available to the public (upload)• make derivative works

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• make derivative works• moral (in some jurisdictions perpetual and non-

transferable)• paternity (attribution)• disclosure (first publication)• respect (protection against distortion)

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• What rights are reserved?

• For how long?• 70 years after the death of the author (in the

EU and in the US; other countries min. 50 years after the death of the author)

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years after the death of the author)• a tendency to extend the term of protection (see:

http://en.wikipedia.org/wiki/File:Copyright_term.svg or https://www.eff.org/issues/intellectual-property/the-term)

• special rules may apply to anonymous/pseudonymous works, works for hire, posthumous works, joint works…


• What rights are reserved?

• For how long?

• Are there any exceptions?• their exact scope varies among

jurisdictions

It shall be permissible for published limited

parts of a work, small scale works, as well as

individual articles from newspapers or

periodicals to be made available to a

specifically limited circle of persons for their

personal scientific research, to the extent that

this is necessary for the respective purpose

and is justified for the pursuit of non-

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jurisdictions• non-commercial research• private copy• text and data mining?• in the US: fair use

and is justified for the pursuit of non-

commercial aims.

art. 52a UrhG

Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-

commercial purpose does not infringe any copyright in the work provided that it is accompanied by

a sufficient acknowledgement.

s. 29 CDPA

B. Database Right

• Directives• What is protected?• What are the reserved rights?• For how long?

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• For how long?• Are there any exceptions?• Anything else I should know?

B. Database Right Directives

• Directive of 11 March 1996 on the legal protection of databases

• national implementations (usually word-for-word)

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• does not apply to companies from countries which do not provide for an equivalent level of protection for EU databases (i.e. the United States)

B. Database Right• What is protected?

• a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

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electronic or other means.• qualitatively and/or quantitatively

substantial investment in either the obtaining, verification or presentation of the contents


• What are the reserved rights?• to prevent extraction and/or re-utilization of

the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of the database

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contents of the database• to prevent repeated and systematic

extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database


• What are the reserved rights?

• For how long?• 15 years after each substantial investment• potentially unlimited time

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• For how long?

• Are there any exceptions?• private purposes (non-electronic

databases only);

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databases only);• extraction for the purposes of illustration

for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved.



• For how long?

• Are there any exceptions?

• Anything else I should know?• independent from copyright!

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• independent from copyright!• watered down by the ECJ setting high standards for

protection in British Horseracing Board (2004) (see: James Boyle: Two database cheers for the EU)

How to use a work?

StartIs it

copyrightable?Is it still in

copyright?

Is your use

covered by an

exception?

Use it!

YES YES

YES

NO

NO NO

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Has it already

been licensed?

Is your use

covered by the

license?

Use it!

YES

NO

NO

Contact the

copyright owner

YES

NO

Copyrighted worksPublic Domain

Copyright vs. public domain

non-copyrightable

ideas, raw facts, ‘works of

nature’, official documents

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copyright expired

> 70 years post mortem

auctoris

copyright waved

Open Access

Orphan works

Orphan Works• Directive 2012/28/EU of 25 October 2012 on certain permitted uses of

orphan works.• Applies to writings (books, newspapers etc.), cinematographic works

and phonograms in the collections of publicly accessible libraries, educational establishments, museums, archives and film/audio heritage institutions.

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heritage institutions.• If after diligent search copyright owners cannot be found, the

institutions listed above can copy orphan works in their collections and make them available in order to ach ieve aims related to their public-interest missions

C. Trade Secret• Art. 39 of the Agreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPS Agreement)• Trade Secret Directive proposed in 2013• Protection against unlawful acquisition, use and disclosure• Definition:

• The information must be secret (i.e. it is not generally known

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• The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question).

• It must have commercial value because it is a secret.• It must have been subject to reasonable steps by the rightful holder

of the information to keep it secret (e.g., through confidentiality agreements).

How to make your data reusable?

• Check your institution’s/project’s policy, your contractual obligations

• Clear rights - make sure that you are the owner!

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owner!• Don’t sell the Eiffel tower!

• Choose a license

• Contact a data repository

D. Licensing

• What is a license?• What rights can be licensed?• How to choose a license?

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D. Licensing• What is a license?

• a promise not to sue• =/= transfer (sale =/= rental)• piece of cake metaphor

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• What rights can be licensed?• copyright (CC)• database right (CC 4.0, ODbL)

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ODbL


• What rights can be licensed?

• How to choose a license?• bespoke or public (prêt-à-porter)?• interoperability - is it compatible with other

licenses used in your community?

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licenses used in your community? (attention: Share-Alike!)

• openness - freely used, re-used and redistributed by anyone, subject only, at most, to the requirement to attribute and sharealike (Open Definition)

• dual licensing possible

1. Creative Commons• foundation started in 2002 by Lawrence Lessig, Hal Abelson and Eric

Eldred with the support of Center for the Public Domain• public license suite + CC0 (waiver)• versions: 1.0, 2.0, 2.5, 3.0; 4.0 launched in November 2013• nearly 50 ported (national) versions• no ported versions of CC 4.0

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• no ported versions of CC 4.0• three layers: machine-readable, lawyer-readable, human-readable• used e.g. by:

• Al Jazeera

• Flickr

• Google

• Nine Inch Nails

• Open Course Ware

• Public Library of Science

• wikipedia

• whitehouse.gov

1. Creative CommonsBY

Attribution

ND

No Derivatives

You must: identify the creator(s) of the Licensed Material (…); retain a copyright notice; retain a notice that refers to this Public License (and) to the disclaimer of warranties; retain a URI or hyperlink to the Licensed Material if reasonably practicable; indicate if You have modified the Licensed Material (…)

Adapted Material means material (…) that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a

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No Derivatives

NC

NonCommercial

SA

ShareAlike

NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.

translated, altered, arranged, transformed, or otherwise modified in a manner (…)

if You produce and Share Adapted Material, (…) the License You apply must be a Creative Commons license with the same License Elements, this version or later, or a Compatible License.

Creative Commons vs. Openness

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2. Other Public Open Licenses• Open Database License (ODbL)• Open Data Commons Attribution License (OCL)• GNU Free Documentation License (for software documentation)• Open Game License (for compeer games)• Free Art License (for artistic works)• Open Source is a similar, but different movement (software whose

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• Open Source is a similar, but different movement (software whose source code is available for inspection and modification)

3. EUDAT’s Open Access Policy

• EUDAT position statement ‘Data Access and Managemen t in the EUDAT Collaborative Data Infrastructure’ published in January 2014

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‘EUDAT believes fundamentally in open access. By open access we mean the freeavailability of data on the public Internet, permitting any user to reproduce andredistribute them for any purpose, and in particular for the purpose of non-commercial research, without financial, legal or technical barriers. The only allowableconstraint on reproduction and redistribution should be to give authors control overthe integrity of their work and the right to be properly acknowledged and cited’

(inspired by the Budapest Open Access Initiative Statement 2002)

3. EUDAT Licensing Recommendations

• EUDAT recommends the use of the following licenses :

• CC BY v. 4.0 - a liberal, widely used license compatible with the definition of Open Access as understood by EUDAT and respecting academic ethical standards (attribution);

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(attribution);

• Alternatively, an Open Data Commons license :• Open Data Commons Attribution License v. 1.0

(similar to CC BY, but with imperfect language)• Open Data Commons Open Database License

(ODbL) v. 1.0(a copyleft (viral) license compatible with CC BY-SA

and with the Open Definition)

II. About EUDAT

a pan-European initiative building a sustainable cross-disciplinary and cross-national data infrastructure providing a set of shared services for accessing and preserving research data

EUDAT is...

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supporting multiple research communities by working closely with them to deliver these technical services as part of the EUDAT Collaborative Data Infrastructure (CDI)

II. About EUDATA truly pan-European Infrastructure

Research CommunitiesNational Data CentresTechnology Providers

Offering permanence,

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general data centrescommunity centres representing all the associatedcommunity data centres

Offering permanence, persistence, reliability and

long term solutions

II. About EUDATThe EUDAT services suite

www.eudat.eu

Contact us for more information [email protected]

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The author wishes to acknowledge the many valuable suggestions made by:

Marc Stauch, Ville Oksanen & Adam Carter

Content generated by

Pawel Kamocki, IDS Mannheim, [email protected]

IPR: Legal Issues in Research Data Collection and Sharing by EUDAT

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