Data: legal issues 6 October 2014 Hugo Besemer

We all have our ideas about legal issues. Let’s test them by discussing a case  Who is the owner of the data?  What would you do in a situation like this?

Issues  Research data retention  Data protection  Privacy  Ownership

Retention  Often self-regulation rather than a legal requirement  Formulations like “data must be kept for …” or “data must be provided upon request”  Seldom enforced

Retention of research data  Motivations ● As starting point for new research ● For verification purposes ● To protect patents ● As evidence in case of academic misconduct ● To meet formal requirements

Who requires (or recommends) retention  Institutions  Intergovernmental bodies  Procurement conditions  Learned societies / disciplines  Journals

Institutions The Wageningen Code of Conduct for Scientific Practice The Wageningen Code of Conduct for Scientific Practice :  Raw research data are stored for at least five years. These data are made available to other scientific practitioners at request.  Raw research data are archived in such a way that they can be consulted at a minimum expense of time and effort.

By intergovernmental bodies 2007: OECD Principles and Guidelines for Access to Research Data from Public Funding:OECD Principles and Guidelines for Access to Research Data from Public Funding “The value of data lies in their use. Full and open access to scientific data should be adopted as the international norm for the exchange of scientific data derived from publicly funded research.”

Procurement conditions Deposit the data in DANS within three months after publication of the end report

Funders Source: European Landscape Study of Research Data. SIM4RDM (2012) %20report%20final% pdf

Learned societies / disciplines  American Psychological Association  Medicine  Bio-informatics

Journals Survey on data policies of journals (JoRD project)JoRD project Results of Journal Survey Total no. of Journals surveyed371 Total no. of Journals with data sharing policies162 Total no. of Journals that make sharing a requirement of publication 31 Total no. of Journals that enforce the policies27 Total no. of Journals that state consequences for non compliance 7

Legal stuff: Data Protection Two situations:  A researcher wants to protect his own data  A researcher wants to use data from other people

Which law applies?  Which jurisdiction ● Country where the data is physically stored ● Country of the employment agreement ● Country of the funding agreement  Which law ● Copyright law ● Protection by database right ● None

No legal protection  Raw data or facts  Effort to produce data (US and related database law)

Copyright  The form in which data are presented  The selection or structure

Copyright or authors’ rights  Economic or exploitation rights Exclusive right to: ● Publish the work ● Duplicate/reproduce the work  Moral or personality rights Right to oppose to: ● your work being published without your name or with a different title ● Radical changes that harm your good name

Copyright notice  Automatic protection  Duration: ● Until 70 years after author's death ● Until 70 years after publication (anonymous work)  A copyright notice is not required, but it… ● Makes clear that the work is copyright protected ● Shows who the copyright owner is Copyright 2010, John Johnson © John Johnson 2010

Copyright owner Initially:  Creator  Copyright can be given away, sold, inherited, waived, claimed by funding agent, employer

What if data is copyright protected?  Can you use the data without consent?  Can you publish the data without consent?  Can you use a figure of table with data from someone’s publication in your own publication without consent?

Database right The legal definition of a database comprises three essential elements:  the database must consist of independent items  the database must be searchable or systematically arranged so that the individual items can be traced  there must have been a substantial investment in the database (obtaining, presenting, and/or verifying the data) Protection of the investment in time and money Duration 15 Years

Example 2: Scopus (bibliographic database)

Example 2: Scopus (2)

Database right: required permissions The producer’s consent is required for the following actions:  retrieving (i.e. copying or downloading) substantial portions of the database  repeatedly and systematically retrieving non-substantial portions of the database  reusing (i.e. publishing) substantial portions of the database

Back to the two situations  A researcher wants to protect his own data ● Don’t publish ● Publish (about) the data and make data available on request ● Publish about the data, make data freely available and make a rights statement or licence (“terms of use”)  A researcher wants to use data from other people ● He can download and use the data ● He cannot publish the data(base) without permission

Privacy Personal Data Protection Act  Living persons  The data should be anonymized if possible  The purpose for which the data is necessary must in any case be clearly specified  No more data may be collected than is necessary to achieve that purpose  You need consent of the individual

You can make data available with conditions or a license  Why: clarity Questions if there is no license:  Is the data protected or not?  Do I need to ask permission for use and reuse?

Types of licenses Source: Alex Ball, Presentation on Data licensing.

Licensing options Most repositories or databases use a standard license or have a terms of use statement.  Bespoke licences ● e.g. DANS repository (Conditions of use)Conditions of use  Standard licenses ● Creative Commons (see UniProt)UniProt ● CC0 most used ● Open Data Commons

Data made available via DANS

UniProt (

DRYAD: research data repository

Further reading  De Cock Buning, M., Ringnalda, A., van der Linden, T. (2009). The legal status of raw data: a guide for research practice. Utrecht: SURF Foundation. xchange.info/Default.aspx?ID=461  Ball, A. (2012). ‘How to License Research Data’. DCC How-to Guides. Edinburgh: Digital Curation Centre. research-data

Questions?