Guest Lecture on Data Agreements -- Given @ SILS, UNC, 2009

1. Agreements for Data Collections
Micah Altman
Senior Research Scientist, Institute for Quantitative
Social Science
(Associate Director, Harvard-MIT Data Center; Archival
Director, Henry A. Murray Research Archive )
Harvard University
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2. The plan for today?
 Principles and Drivers
 Principles of Agreement
 Data Lifecycle
 Stakeholders
 Areas of Law
 Implications for Agreements
 Motivating Questions
 Example Checklist
 Additional Resources
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3. Principles for Agreements
Agreements for Data Collections: Principles
 Why Formalize Agreements?
 Clarify and articulate rights and responsibilities
 Distribute risk across parties
 Establish record for later individual/institutional
memory
 Establish institutional commitment
 Signal commitment to third parties
 Preconditions for success
 Meeting of minds
 intent to agree, mutual understanding of agreement
 Compatible incentives
 Compatible capabilities
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4. Common Agreements Involving Data
 Data Collection
 Data Deposit/Submission
 Data Dissemination/Release
 Institutional Collaboration, Transfer,
Exchange
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5. Data Lifecycle*
 Collection
 Data Entry & Verification
 Processing
 Identifier assignment
 Internal metadata
 Coding
 Merging
 Cleaning
 Research and Publication Support
 Documentation, Dissemination
 Archiving
 Recoding, Secondary Analysis, Merging
(… and back to the beginning)
*(Rinse, Lather, Repeat)
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6. What’s Wrong with the Previous Slide*
 Data is changed all the time.
 What metadata?
 Publications emerge before processing
(“the conference is next week”)
 Dissemination happens early
(sometimes…maybe… if I know you)
 Much data is never archived
* (So, I lied)
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7. Stakeholders
 Sources  Sponsors
 Research Subjects  Home institution(s)
 Owners of object of study  Government sponsors
 Owners of supplementary/  Non-profit sponsors
integrated data  Corporate sponsors
 Producers  Publishers
 Primary investigators  Print publishers
 Research group  Data archives
 Secondary investigators  Consumers
 Staff  Readers
 Collaborators
 Policymakers
 Researchers conducting
Secondary Research
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8. Legal Issues - Types
 Intellectual Property
 Copyright
 Contract & License
 DMCA  Explicit Contracts &
 Trademark Licenses
 Patent  Shrinkwrap/Clickwrap
 Database Protection
 Trade Secret
 Personal Information
 Open Access  IRB’s and 45 CFR 26
 FOIA
 HIPAA
 State FOI Laws
 Sponsor Deposit
 FERPA
Requirements  Invasion of Privacy
 Federal Records
Regulations
 Defamation
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9. Legal Issues - Observations
 Intellectual Property
 Frequently there is a big gap between ownership and control of data
 Quantitative data is much more often protected by license (and possibly
by DMCA if embedded) than by patent, database protection, trademark,
trade secret
 Even data that combines existing sources is not necessarily “derivative
work”. Merged research databases often exhibit sufficient creativity in
selection & organization to constitute an original work
 Open Access
 Research produced under contract to federal agency constitute federal
record, and are subject to FOIA
 Grant-funded research does not, unless specifically used to support
regulation. More difficult or impossible to FOIA
 Most sponsor & journal deposit requirements are not enforced or
monitored
 Exception: A few journals enforce data deposit for publication effectively.
Primarily in bio-sciences.
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10. Legal Issues – Observations (Continued)
 Contract & License
 Contract involved exchange of benefits, license is a grant of permissions
 Shrinkwrap/clickwrap licenses should not be ignored
 Most data restriction through license
 Personal Information
 Generally, difficult for individuals to sue institutions and be awarded much
 However, risks of government fines, penalties, curtailing of research grants
significant for institutions conducting federally funded research
 Releasing data is generally a problem ok if the data is not personally identifiable
(social security numbers, credit card numbers, home address, names, etc.), data is
public record and/or historical, or data subjects gave informed consent to
release
 For most data, removing the 19 enumerated direct and indirect HIPAA identifiers is
sufficient to show good faith
 However, be aware that some data is very difficult or impossible to deidentify:
 A/V (unless image and voices are disguised)
 Qualitative data (care must be used to remove identifying context like schools attended, as
well as explicit identifiers)
 High-dimensional sparse data, such as Netflix movie rankings, can be linked using external
sources
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11. Stakeholders and Legal Requirements
Copyright
DMCA Trademark
Intellectual Property Consumer
Interest Open access
Patent Trade Secret State
FOIA FOI
Sponsor
Publisher Interests
Interests
Click-wrap 45 CFR 26 HIPAA FERPA
agreements
Contract Personal Information
Contributor
Contracts Licenses Interests Invasion Defamation
of
Privacy
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12. Stakeholders Implicated as Information
Stakeholder Concerns Legal Issues
Flows Research Consumers
- Readers
Replicate and extend
Secondary analysis Fair Use
- Secondary researcher Link research
Research Publishers Replicable research Copyright
- Print publishers Promote use of their publications Licensing
- Research archives Protect publisher IP
Avoid third party IP/Privacy Issues
Replicable Research Copyright
Project Personnel:
- Investigators Publish
- Research Staff Promote use of Publications
Track use
Research sponsors: Replicable Research
Policy Relevance Licensing
- Home institution
Accessibility of Research Freedom of Information
- Funding sources
Protect IP Copyright
Avoid third party IP/Privacy Issues
Research sources: Privacy Licensing
- Research Subjects. Confidentiality Copyright
- Owners of subject material Intellectual Property DMCA
- Owners of supplementary data Informed Consent
Privacy
Trade secrets
Information
Transfer
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13. Agreement General Questions
 What actions are to be undertaken by each
stakeholder?
 What risks and responsibilities does each
stakeholder bear?
 What benefits are exchanged?
 How will the agreement be monitored?
 What is the expected timeline for the
agreement as a whole, actions, risks,
exchanges, monitoring?
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14. Motivating Questions for Data
Agreements
 Motivating Questions
 Who are the stakeholders?
 What do the stakeholders require and want?
 How does the agreement engage with the
data lifecycle to ensure these things?
 What are the motivating questions, use
cases, scenarios?
 What incentives do the stakeholders have to
cooperate?
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15. Data Agreement: Materials
 Nature of collections
 Legal restrictions: Copyrighted? Public domain? Factual? Other types? (etc.)
 Accompanying metadata?
 Formats being delivered? Software required to read/use those formats?
 Completeness. Other material required to use or understand collections?
 Frequency
 When, and if applicable, at what intervals, will the materials be delivered? Is there
any ongoing duty to update or upgrade the materials?
 Review/Monitoring
 What level of review/acceptance, if any, and by whom
 Time period in which for review?
 What happens if the reviewer determines that the materials are in some way
deficient?
 Responsibilities related to Materials
 Will the depositing institution have any other obligations with respect to the Materials
once they are delivered?
 Maintain updates?
 Maintain particular feeds or pipelines?
 Create and maintain a related website?
 Install/use software? (Related licensing requirements?)
 Technical Standards compliance?
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16. Data Agreement: Rights
 Use rights
 Reproduce, distribute, publicly display, or publicly perform some or all of work.
 Prepare derivative works of or otherwise modify? Own derivative works?
 Create databases incorporating, re-arrange or compile the collections
 Cache, store , archive, reformat.
 Ownership
 Is copyright transferred? (Generally not necessary, not always possible.)
 Ownership of right title and interest?
 Are sublicense rights needed? To whom? Can sub-licensees grant rights?
 Scope
 Can depositor withdraw materials or rights? Under what conditions?
 Term/Duration of licenses? Limited to term of agreement?
 Exclusivity?
 Limited to certain purposes – preservation, personal, instructional, research, non-
commercial?
 Privacy restrictions – re-identification, linking, merging
 Territorial restrictions
 Transferability of license?
 Revocability?
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17. Data Agreement: Obligations
 Describe the scope of any obligations to review, manage, test, catalog, index,
organize, host, make available, store, preserve, archive, retrieve, maintain, and
update, etc. What is the duration of this obligation? The term of the agreement? in
perpetuity?
 Term of obligation? Terminates with agreement?
 Where will materials be stored, hosted, (etc.)?
 Are there other conditions under which materials may be deaccessioned?
 Obligations to distribute materials?
 To whom? Under what conditions?
 Are there limitations on the fees distributors may charge users?
 Is there an obligation to allow redistribution by third party?
 Is there a specified end-user license or other required conditions? Does it include obligation to
inform end users of restrictions on materials? Must distributor obtain users assent to license?
 For what term?
 Are there obligations to update materials? Under what conditions?
 Notifications, obligations to notify of changes of copyright/privacy status?
 Attribution, cite in publications or derivative works? Mention in advertising?
 Obligations to comply with FOIA (and related state government statutes) requests
and/or subpoenas for original materials? Direct response required, or simply permit
the Government access to catalog and repository for requestor to search for such
materials?
 Does either party have any obligation to train or provide other assistance to the other
party regarding the use or manipulation of the Materials? metadata creation, etc.?
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18. Data Agreement: Term
 Term of agreement?
 Time period; based on conclusion of work; perpetual?
 If ongoing, is agreement in accordance with specific provision?
 Are there renewal terms? Is renewal automatic? Is there a limit
on renewals?
 Termination rights
 Do both parties have the right to terminate for material brach?
Is there a period allowed to cure the breach?
 Enumerated causes for termination? Or termination allowed
without cause?
 Right to terminate based on bankruptcy/dissolution/sale/transfer
of ownership of parties?
 Termination effects
 Continuing licenses to collections (either transferred or
promised) post termination?
 Continuing obligations to preserve, update, or perform other
actions with respect to collections?
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19. Data Agreement: Fees
 What fees will be charged, by whom, and for
what?
 Are fees adjustable, and on what basis?
 When are fees due/payable?
 Are other costs incurred explicitly waived?
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20. Data Agreement: Warrantees
 Representations and warranties concerning the intellectual property
rights in the Materials?
 the Materials do not infringe any third party’s intellectual property rights
(copyright, patent, trademark, trade secret);
 the depositing institution has the right to grant the rights granted in the
Deposit Agreement;
 the depositing institution has confirmed that any copyright restrictions
imposed on the Materials are current and accurate;
 the Materials do not violate any third party’s right of privacy or publicity, and
are not defamatory or libelous.
 Warranties regarding the accuracy, reliability, currency or
completeness of the Materials?
 Other general warranties
 that the depositing institution has the right to enter into the agreement
 that the Deposit Agreement does not conflict with any other agreement
 that the person executing the agreement has the authority to do so on
behalf of the depositing institution
 that the Materials and the depositing institution’s performance under the
Deposit Agreement complies with
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21. Data Deposit Agreement: Disclaimers
 General Disclaimers. Each Deposit Agreement should include a general disclaimer of consequential, indirect, punitive
and incidental damages.
 Specific Disclaimers. Disclaiming liability for any loss or damage to the Materials. Are there other specific disclaimers
that are appropriate for the Materials?
 Limitation of Liability. Include a dollar limitation on the direct damages that may be recovered under the Deposit
Agreement?
 If included, will the limitation of liability protect both parties?
 In general, the limit on direct damages should have some relationship to the risks involved, the potential damages that may be
incurred, and each party’s need/desire to limit the risk undertaken pursuant to the agreement.
 Note that if no fees are charged under the Deposit Agreement, limiting direct damages to the fees charged may not be
enforceable in certain states because such a provision does not provide an effective remedy.
 Indemnity based on breach of contract or of the representations and warrantie?
 Will the the depositing institution indemnify, defend and/or hold harmless the receiver from third party claims?
 alleging that the Materials infringe a third party’s intellectual property rights;
 alleging that the Materials infringe a third party’s rights of privacy and/or publicity;
 alleging that the Materials are defamatory or libelous; or
 alleging property damage or injury;
 alleging tortious interference;
 based on the depositing institution’s violation of law;
 based on the depositing institution’s negligence or willful misconduct.
 Mutual indemnity? Under what circumstances, and with what exceptions?
 Notes:
 Often request for indemnity will trigger a request for mutual indemnity.
 Indemnity and warranties are overlapping However, biggest risk is from third parties – indemnity, not warranty.
 Consider explicitly excluding liability based on specific disclaimers.
 If fees, or dollar limits are mentioned, consider excepting indemnity from these limits?
 Be aware that depositors may have a limited ability to enter into an indemnifying agreement (e.g. government entities sometimes
cannot enter such agreements), or may not have the resources to provide effective indemnification should a third party allegation
arise.
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22. Data Deposit Agreement: Miscellaneous
 Is the agreement, or the information exchanged by parties
confidential?
 Who are points of contact?
 Governing law; jurisdiction; venue?
 Dispute resolution procedure?
 Force majeure?
 Waiver and severability?
 Entire agreement provision?
 Copyright or licensing of agreement itself (e.g. Creative
Commons)?
 Notices
 Amendment and modifications
 Assignment
 Relation of the parties/independent contractors
 Advertising clauses; use of institutional logos and trademarks
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23. Variation: Data Dissemination
 Generally includes limited use rights
 Analysis, research
 Often no redistribution/derivative works rights
 Point in time license, no termination for
specific release
 Generally includes obligations
 Attribution
 Notification by user to source of problems
 Privacy obligations
 Often no warranties, indemnification
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24. Variation: Data Collection Agreement
 Look ahead to rights desired under deposit
and dissemination agreements
 Data collection agreements should grant
rights/obtain informed consent for these uses
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25. Resources
Agreements for Data Collections: Resources
 Library Collection Development?
 Library of Congress Digital Preservation Website:
<http://www.digitalpreservation.gov>
 Data Preservation Alliance for the Social Sciences:
<http://www.icpsr.org/datapass/>
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26. Questions?
Questions about this talk, etc.:
Micah_Altman@harvard.edu
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