Intellectual Property, Science and Databases Dr Charlotte Waelde Co-director, AHRB Research Centre for Studies in Intellectual Property and Technology Law, School of Law, University of Edinburgh

Intellectual Property IP rights: designed to encourage innovation by giving a limited monopoly over exploitation of certain rights for a set period of time. The difficulty: granting exclusive rights can restrict collaboration and free flow of information which may hinder scientific development. The balance?

Patent Copyright Trade Marks Designs Focus today is on the database right – based on copyright Types of Intellectual Property

Copyright and database right – the differences Copyright: protects expression of original artistic, literary, dramatic and musical works. e.g. books, plays and software. Also protects the media through which the basic rights are exploited such as sound recordings and broadcasts. work requires to be fixed; no need for registration. copyright does not protect ideas, facts, small works Database right – Europe and not US (but note relevance of contract and use of technological protection measures). protects collections of independent works, data or other materials which are arranged in a systematic or methodical way and are individually accessible by electronic or other means. does not (is not supposed) to protect data as such but gives the right to the maker to prohibit extraction and re-utilisation of a substantial part of the contents of a database without consent

Database right Why have it? To create digital files of, for example, collections of medical journals, or images from art galleries or the daily business of the stock exchange is a very costly business. Right prevents others free riding on that investment. Introduction of right coincided with rise in the number of new database companies in Europe. However rise has not been sustained. Criticisms database laws…place an overriding emphasis on protecting original investments and on augmenting purportedly necessary economic incentives to create new databases. At the same time, they undervalue the adverse effects on scientific and technical progress, as well as the aggregate economic and social costs inherent in restricting and discouraging the downstream applications and transformative uses of …databases in general…an overly protective database regime would seriously impede the use, reuse, and transformation of the factual data that are the lifeblood of science and technology J.H. Reichman and Paul F. Uhlir. Support Single Market Commissioner Mario Monti This innovative and comprehensive measure will ensure an appropriate level of protection for database makers and investors throughout the EU. The Directive strikes a balance between the interests of the manufacturers of databases and the legitimate interests of their users. Particular account has been taken of situations in which the extraction of contents of databases is required for teaching purposes as well as for scientific research. Note: lobby for protection came from commercial compilers of information who obtain that information from elsewhere

Databases: the rights and limitations Right owner is the maker of the database: person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining verification or presentation The right to prevent extraction and re-utilisation of the whole or a substantial part of the contents of the database. Includes the repeated or systematic extraction of insubstantial parts parts of the database Lasts 15 years from making subject to extensions when updated and added to database. A dynamic database will have on-going protection Not infringed if extracted – but not re-utilised - for purposes of illustration for teaching or research – but not any commercial purpose

Databases – the pending case law Majority of complaints arisen from small companies who produce synthetic data – stuff they do not discover themselves but which they gather – such as telephone listings. Would-be competitors cannot get this information themselves and only have the option of copying. Cases currently before the ECJ to decide the following points: 1.what amounts to a substantial investment for qualification of the right? 2.does the right accrue where the database is a spin-off from investment in another field – e.g. where broadcasters schedule television programmes the spin-off is a list of television programmes? 3.what amounts to repeated and systematic extraction? 4.does the right cover instances where information is generated/created and cannot be obtained from alternative sources? Right was supposed to protect investment in gathering processing and publishing pre-existing data – not discovered data

Databases and science- ownership Collaborative work: existing databases; combining databases; new rights; questions of ownership. Making amendments: ownership, authenticity and integrity? Note relevance of copyright: attribution, authorship and ownership.

Databases and science – access and use Open access to scientists for non-commercial research? Are you permitted to discriminate? What is non-commercial? What about commercial parties? What of spin-off products that could be exploited commercially? Inclusion of datasets from commercial companies? Licensing terms restricting use of data? How do you know what may be used when combined into the whole? Are there reach-through provisions concerning onward use? Who owns the resultant joint product? What if commercial companies fund research? Will a commercial restriction have an effect on the dynamics of the group? Complex cross-licensing arrangements which could be the subject of difficult and protracted negotiation to set up and create uncertainty for those involved? What about other IPRs such as patents in relation to the outcomes of the collaborative development of the database?

Innovative IP frameworks within existing boundaries Royal Society: Keeping Science Open: The Effects of Intellectual Property Policy on the Conduct of Science (2003), the assertion of IP rights is acknowledged as being a potential problem for the scientific community in particular by hindering the free exchange of ideas and information on which science thrives. Alternatives: – keep open and resolve not to exert rights – e.g. copyleft, creative commons licences. Public domain. But would not prevent third parties from re-packaging and selling - access conditions. But generally only good as against contracting parties; what happens when third parties want to exploit? Complex licensing strategies (commercial interests) - system should dovetail with scientific need (e.g. provenance and annotation) Challenge: Have a strategic vision and develop innovative responses recognising commercial pressures and understanding those instances in which advantage might be taken by third parties