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20200504_Data, Data Ownership and Open Science

Presentation by Thomas Margoni (Senior Lecturer in Intellectual Property and Internet Law, Co-director, CREATe, University of Glasgow) as delivered during the OpenAIRE Legal Policy Webinar series on May 4th 2020.
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20200504_Data, Data Ownership and Open Science

  1. 1. Data, Data Ownership and Open Science OpenAIRE Legal Policy Webinars 4 May 2020 Dr. Thomas Margoni Senior Lecturer in Intellectual Property and Internet Law Co-director, CREATe Coordinator, IP LLM Programme School of Law – CREATe University of Glasgow
  2. 2. Example: OpenMinTeD Copyright theory (and sometimes copyright law) says: no E.g.: ideas, procedures, methods of operation, mathematical concepts, etc are not protected by copyright law, only original expressions which constitute intellectual creations (e.g. Arts. 2 WCT, 9(2) TRIPs, Art. 2 Berne and most legal traditions requiring originality). Factual information and data as such fail to qualify for copyright protection. Other areas of law may say yes, but usually in specifically identified situations, or with limited remedies e.g.: 1) Trade secrets, confidentiality (only if secret and limited remedies) 2) Contracts (privity, enforceability and remedies) 3) Data protection (only qualifying data and scope is protection) 4) PSI (reuse by default) 5) … Is data owned?
  3. 3. Example: OpenMinTeD Databases: Are protected by copyright if the selection or arrangement is original. However, what is protected in this case is the selection or arrangement (e.g. the structure of the database), not the contained data. ● This means that if the original database is composed of copyright protected elements (e.g. a DB of journal articles, films, songs, etc) the content of the DB is protected NOT because is data, but because they are works of authorship in their own right. ● If the original database is composed of non protected information (e.g. temperature measurements, numbers or other factual information), the copyright protecting the structure does NOT extend to the underlying data, which remains free to reuse from a copyright point of view (but you should always verify this is not personal or confidential data, etc.). Is data owned?
  4. 4. Example: OpenMinTeD Databases: In the EU, non original databases are also protected (heard of the SGDR?). In this case, a database whose making required a substantial investment in obtaining, verifying or presenting (NOT creating) the data is protected by Sui Generis Database Right (SGDR, a “lighter” form of copyright), therefore effectively protecting obtained (but not created) data. Copyright and SGDR are cumulable, so an original database (structure) whose making required a substantial investment may enjoy a double form of protection. If the “data” are in fact works (a database of journal articles) there are 3 layers of rights protecting that database. All of them have to be properly authorised if you want to reuse that database (e.g. this is way it is important to use the right licence, e.g. CC BY 4.0). Is data owned?
  5. 5. Example: OpenMinTeD What about the “data” contained in a work (not in a database)? Can you extract statistical information about the English language from, e.g. a Harry Potter novel? In theory yes (the right to read is the right to mine), but in practice no (you need a TDM exception). If we take a closer look, EU copyright law (doesn’t say anything explicit but) often means: YES. Interplay between Arts. 2 and 5 InfoSoc Directive requires to obtain an authorisation for data capturing/extraction + SGDR. Is data owned?
  6. 6. Example: OpenMinTeD Modern data analytics (e.g. TDM, machine learning etc.) normally extracts principles, facts, data, correlations, etc, which copyright theory stipulates that are not protected, thus the extraction of those unprotected elements from protected works should not need an exception (non consumptive uses). Main obstacle of EU copyright framework is that it harmonised rights broadly (reproduction, redistribution, communication to the public, etc), but did not do the same with exceptions (exhaustive but not mandatory list, narrow interpretation, etc). There is no flexible standard in the EU such as there are in many other countries around the world. Result: Often data contained in works are de facto or de jure (for non original databases) protected (needs authorisation) in the EU but may not abroad. Is data owned?
  7. 7. Example: OpenMinTeD By excluding protection of ideas, principles, factual information, non original expressions the law’s goal is avoid the creation of monopolies over the information needed by everyone to think, communication and create new knowledge and to avoid the distortion of scientific freedoms and fundamental rights that it may cause. By excluding data created in databases the law’s goal is to avoid as much as possible so-called “single source databases” due to their anti-competitive and monopolistic nature. Ideas and data as such are the basic bricks of human knowledge and should not be owned but held in the public domain for everyone to have access to it, but also to verify, reuse and replicate. By affording protection to the obtaining of data structured in qualifying databases against substantial extractions a limited reward for the investment is given to the maker under EU law. Is data owned and why does it matter for OS?
  8. 8. Example: OpenMinTeD 1) Text and Data mining: computational analysis of anything recorded in the work (sec. 29A CDPA) or any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations (Art. 3 CDSM); 2) Scope: exception to the right of reproduction (both); 3) Beneficiaries: Non commercial research (29A CDPA), research organisations with lawful access for research purposes (Art. 3 CDSM), anyone for any purpose but can be opted-out (Art. 4 CDSM). 4) Relationship to contracts: Cannot be limited by contract (except for Art. 4 CDSM). 5) Relationship to technology: Can be limited by technological measures (integrity measures and TPM) Example: TDM exceptions
  9. 9. Example: OpenMinTeD OpenAIRE has 3 published guides for researchers at the moment: ● How do I know if my research data is protected? ● How do I license my research data? ● Can I reuse someone else’s research data? And a companion guide to help address open science issue for repositories: ● Making your repository Open CREATe Open Science resource: ● Guides
  10. 10. Example: OpenMinTeD ● Open Access: Everything under CC BY 4.0/CC0 (or similar) can be copied, reused, redistributed and mined (e.g. Wikipedia, for any purpose ● OpenCovidPledge: “to make our intellectual property available free of charge for use in ending the COVID-19 pandemic”: with companies such as Amazon, Facebook, Hewlett Packard Enterprise, IBM, Microsoft declaring adoption of either or both licenses. ● Wellcome statement on ‘Sharing research data and findings relevant to the novel coronavirus (COVID-19) outbreak’: t-novel-coronavirus-covid-19-outbreak ● Joint Comment to WIPO on Copyright and Artificial Intelligence, Recent initiatives
  11. 11. Example: OpenMinTeD ● Q: “How can we guarantee the reuse of data.” A: Short answer: CC0 (long answer is explained in the Guides and depends on if it’s just raw data, an original database, a non original database, etc). ● Q: “… the Open Data directive and IPR may conflict. For instance, when data published by a government body are re-used by research consortium consisting of a public-private partnership, I could imagine that the consortium would want to restrict access to the (processed) data, claiming intellectual property rights, while the original data ought to be open, based on the Open Data directive…”. A: Depends on a number of factors. In the simplest sceario Open Data requires reusability. If there are no rights covering the data, then they can be reused in any way (including within a proprietary model). If data are protected then usually they come with a licence (CC or Open Government) and that licence must be followed. Some questions (and tentative answers...)
  12. 12. Example: OpenMinTeD ● “Q: How and under which 'umbrella' can data legally be protected, if so required? Copyright, Database right, ownership right, protection of trade secrets?” A: Data as such cannot be protected by copyright or SGDR. Data structured in a database may be protected by SGDR if there is substantial investment in obtaining, verifying or presenting (not creating) data. Trade secret may protect data but under certain conditions. Contracts as well. ● Q: “How can information be retrieved without being considered plagiarism?” A: Ideas and facts are not protected. Original expressions are. Do not copy original expressions. ● Q: “İs it legal to summarise my thesis as an article that may publish in the international journal?” A: If it’s your thesis and you did not transfer your copyright (e.g. to a publisher) you can do whatever you want (from a copyright point of view). Some questions (and tentative answers...)
  13. 13. Example: OpenMinTeD ● Q: “Im interested in how to make researchers understand that is important to protect results (IPR) before publishing the results. Many of them are extremely focused in publishing the results and eventually have some problems when trying to protect them (via patent for example). Thanks in advance” A: In general Universities have (or should have) TTOs which advise on these matters. In principle, if you disclose your invention before obtaining a patent, this disqualifies you from obtaining a patent later on. This however only applies to certain field (humanities are less affected by patents than bio-med). Also, it depends on the overall strategy of the University. Patents are an important tool in a IP portfolio, but should not be over-used, the risk is to lock in important knowledge created with (very often) public funds. It should be kept in mind that differently from Patents, Copyright (articles, software, database, books, images, films, etc) and SGDR (database) work automatically, so authors are automatically protected (no need to register). Once you are protected publish with the right Open Access licence (e.g. CC0 or CC BY 4.0) to get the best mix of visibility, re-usability and also protection (e.g. the BY requires attribution). Some questions (and tentative answers...)
  14. 14. Open Access Week 2019 Thank you! Dr. Thomas Margoni Senior Lecturer in Intellectual Property and Internet Law Co-director, CREATe Director, IP LLM Programme School of Law – CREATe University of Glasgow