How do you specify terms of use for the research data with licences Copyright Ombudsman, LL.M Maria Rehbinder Art University Copyright Advisory Services Research and Innovation Services, Aalto university

Data – interoperability ja standards With regard to digital research data, the aim is to enable optimal use and reuse of research data. This requires both technical and legal interoperability. Legal interoperability is achieved by using standard licenses in defining rights for the of use research data. Creative Commons –licenses and especially CC-BY 4.0 –license and CC-0 –waiver have became commonly used licenses of research data. Open Science and Research Initiative of the Ministry of Education and Culture recommends their use. 16.1.2019

Protection types of research data and ownership According to the finnish copyright act, three different protection types: Protection of literary or artistic work (Copyright Act 1§) Nordic protection of catalogues (Copyright Act 49.1,1) European sui generis –protection of databases (Copyright Act 49.1,2) Ownership of research data: Copyright is owned by researchers as natural persons in case of independent research, and by university in case of work that is not done independently (Copyright Act 40 b §) Nordic protection of catalogues is owned by an investor, university Sui generis – database protection is owned by investor, university 16.1.2019

Research data Research produces both raw data and analyzed data with an independent information value. According to the definition of the sui generis database –protection, so-called ”raw data” is generally not the subject of sui generis protection. For example, data collected through remote sensing satellites or meteorological observation systems, file-modified gene information or image and audio information generated by a digital camera and microphone are not protected as such. They do not consist of ”independent material” but represent things in nature. Catalogue protection requires that a large number of information items are compiled into a list, table or other equivalent job. Therefore, catalogue protection can also protect raw data. 16.1.2019

Scope of protection Copyright provides the right to control a work by reproducing it and by making it available to the public, in the original form or in an altered form (copyright act 2§). Sui generis –protection provides right to control the whole or, in qualitative or quantitative terms, a substantial part of database, by making copies of it and by making it available to the public. According to CJEU case The British Horseracing Board, the expression 'substantial part, evaluated qualitatively', of the contents of a database refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or reutilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. 16.1.2019

Term of protection Sui generis and catalogue –protections subsists until 15 years have elapsed from the year in which the product was completed or, if the product was made available to the public before the end of that time, until 15 years have elapsed from the year in which the product was made available to the public for the first time. According to database directive article 10, a substantial new investment brings a new term of protection, thus making it possible for protection to continue without termination 16.1.2019

Enabling further use of research data For each database, the originality and the nature of the research of each researcher involved must be determined. A research is a continuum – different parts of the database are created in different situations and they should be allowedf to be in optimal use used in further research. When the terms of use of database are clearly specified with internationally interoperable licensed standards, it enables further use of research data. 16.1.2019

Why terms of use are specified in Creative Commons licenses? Researchers also share data without actual contracts on rights to use. Increasingly, the sharing of data utilizes standardized legal tools and publishing datasets in data repositories. These removes barriers to the use of the research data. Without a license, copyright, catalogue- and sui generis protection would be an obstacle to the use of data. These barriers can prevent even the reuse of researchers own data if researcher for example switches to an employer. 16.1.2019

How to specify terms of use by Creative Commons licenses? There are six different licenses in the Creative Commons licensing family, which define the terms of use in six different ways. There is a CC0 -waiver that does not contain legally binding terms of use. The license for the terms of use of the research data recommended by the Open Science and Research initiative is: CC BY 4.0 This webinar is licensed under a Creative Commons Attribution 4.0 International License as well. 16.1.2019

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What do Creative Commons –licenses not cover? Creative Commons 4.0 licenses copyright, catalogue protection and database protection. Earlier licensing families such as Creative Commons 3.0 –licenses do not yet take license European sui generis –protection or Nordic catalogue protection. Privacy rights and rights protecting personal data are not licensed with Creative Commons licenses. 16.1.2019

Preamble 26, Pseudonymisation in general data protection regulation The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. 16.1.2019

26) Pseudonymisation in general data protection regulation To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes. 16.1.2019

Recital 26 of Directive 95/46/EC Recital 26 of Directive 95/46/EC ‘to determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the said person’. Making data available for reuse under the PSI Directive, the WP29 states “utmost care should be taken to ensure that the datasets to be disclosed should not include data that can be re-identified by means likely reasonably to be used by any person, including potential re-users, but also other parties that may have an interest in obtaining the data, including law enforcement.” Means likely reasonable= moyens raisonnablement susceptibles There is an error in the Finnish translation of preamble 26 of the directive, only the word reasonably is translated. 16.1.2019

CC0 -waiver CC0 –waiver is widely used in opening databases. The user of the data asks the users to inform the authors of the research data and the organizations of the authors in a certain way. These so called rules of the road –terms are not legally binding. However, when research data is used for science, compliance with good scientific practice is respected when sources and authors are reported, and sources and authors will also receive the citations they deserve without binding terms of use. 16.1.2019

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License for metadata for research data The license must be mentioned in the metadata of the research data. The metadata can be included in the actual data file or in a separate text file that contains the basic information describing the research data. For example in the Social Science Data Archive, the license is visible in the descriptive data. If a researcher submits licensed material, for example at a conference or seminar, the license should be included for example in PowerPoint slides. 16.1.2019

Example:CC BY 4.0 –license in Zenodo -archieve 16.1.2019

Example: CC0 1.0 in Zenodo -archieve 16.1.2019

How to select and add a suitable license? You will find the license that suits you best by using the License Selector. Creative Commons licenses and license selector are located on the servers of the international Creative Commons. It's enough to add information about your chosen license to your datasets. https://creativecommons.org/choose/?lang=en#metadata 16.1.2019

How to select and add a suitable license? 16.1.2019

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