| www.eudat.eu | v1.0, June 2014 - The development of skills and competence to manage IPR and leverage its influence requires increasing focus. However, how much detail do you know? Take copyright for example, What exactly is protected?, What rights are reserved and for how long? This presentation addresses such questions on copyright and other topics such as Database Right, Trade Secret and Licensing. Who is it for?: Researchers, Data Managers, General public.

1. Exponentialgrowth
Legal Issues in Research Data Collection and
Sharing: Intellectual Property Rights
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Exponentialgrowth
Part of an EUDAT series on Legal Issues www.eudat.eu
Content generated by
Pawel Kamocki, IDS Mannheim
V1.0 – June 2014

2. Table of Contents
I. Intellectual Property Rights
A. Copyright
B. sui generis Database Right
C. Trade Secret
D. Licensing
1. Creative Commons
Exponentialgrowth
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1. Creative Commons
2. Other public licenses
3. EUDAT Policy
II. About EUDAT
Exponentialgrowth

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

4. I. Intellectual Property Rights cover
Patents
Copyright
Industrial Property
Neighboring (Related) Rights
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Trademarks Database right
(Industrial)
Designs
Trade secret
Neighboring (Related) Rights

5. 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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6. 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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7. 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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8. A. Copyright
• What is protected?
• 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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9. A. Copyright
• What is protected?
• 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…

10. A. Copyright
• What is protected?
• 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

11. 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?

12. 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)

13. 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

14. B. Database Right
• What is protected?
• 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

15. B. Database Right
• What is protected?
• What are the reserved rights?
• For how long?
• 15 years after each substantial investment
• potentially unlimited time
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16. B. Database Right
• What is protected?
• What are the reserved rights?
• 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.

17. B. Database Right
• What is protected?
• What are the reserved rights?
• 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)

18. How to use a work?
Start
Is 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

19. 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

20. 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 achieve aims
related to their public-interest missions

21. 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).

22. 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

23. D. Licensing
• What is a license?
• What rights can be licensed?
• How to choose a license?
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24. D. Licensing
• What is a license?
• a promise not to sue
• =/= transfer (sale =/= rental)
• piece of cake metaphor
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25. D. Licensing
• What is a license?
• What rights can be licensed?
• copyright (CC)
• database right (CC 4.0, ODbL)
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ODbL

26. D. Licensing
• What is a license?
• 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

27. 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

28. 1. Creative Commons
BY
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.

29. Creative Commons vs. Openness
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30. 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)

31. 3. EUDAT’s Open Access Policy
• EUDAT position statement ‘Data Access and Management 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 free
availability of data on the public Internet, permitting any user to reproduce and
redistribute them for any purpose, and in particular for the purpose of non-
commercial research, without financial, legal or technical barriers. The only allowable
constraint on reproduction and redistribution should be to give authors control over
the integrity of their work and the right to be properly acknowledged and cited’
(inspired by the Budapest Open Access Initiative Statement 2002)

32. 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)

33. 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...
www.eudat.eu
supporting multiple research
communities by working closely
with them to deliver these technical
services as part of the EUDAT
Collaborative Data Infrastructure
(CDI)

34. II. About EUDAT
A truly pan-European Infrastructure
Research Communities
National Data Centres
Technology Providers
Offering permanence,
www.eudat.eu
general data centres
community centres representing all the associated
community data centres
Offering permanence,
persistence, reliability and
long term solutions

35. II. About EUDAT
The EUDAT services suite
www.eudat.eu

36. Contact us for more information
eudat-pmo@postit.csc.fi
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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,
kamocki@ids-mannheim.de