1 exponential growth legal issues in research data collection and sharing eudat pawel kamocki ids...
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Legal Issues in Research Data Collection and Sharing
EUDAT
www.eudat.eu
Pawel Kamocki
IDS Mannheim
Table of Contents
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I. Intellectual Property Rights
A. Copyright
B. sui generis Database Right
C. Trade Secret
D. Licensing
1. Creative Commons
2. Other public licenses
II. Personal Data
III. Miscellaneous
A. Public Sector Information Directive
B. Liability of Service Providers
C. Terms of Service
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I. Intellectual Property Rights
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•Property?
-Usus - the right to use
-Fructus - the right to enjoy the fruits (make profits)
-Abusus - the right to dispose of
•Intellectual?
-in products of human intellect
-ger. Geistiges Eigentum
-intangible assets (distinct from corpus mechanicum)
I. Intellectual Property Rights
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Industrial Property
Patents
Trademarks
(Industrial) Designs
Copyright
Neighboring (Related) Rights
Database Right
Trade Secret
A. Copyright
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• the Berne Convention for the protection of literary and artistic works 1886
• Agreement on Trade-Related Aspects of Intellectual Property Rights 1994
• World Intellectual Property Organisation's Copyright Treaty 1996• Directive 2001/29/EC of 22 May 2001 on the harmonization of
certain aspects of copyright in the information society• Directive 93/98/EEC harmonizing the term of protection of
copyright• Directive 2009/24/EC on the legal protection of computer
programs• National implementations (CDPA, UrhG, Code de la propriété
intellectuelle…)
A. Copyright
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• What is protected?• What rights are reserved?• For how long?• Are there any exceptions?
A. Copyright
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• What is protected?• scientific, literary and artistic works, regardless of their value • NOT: ideas, raw facts, mathematical formulas• originality = choice (personal imprint; selection and arrangement;
labour, skill and judgement; author’s own intellectual creation)• in some jurisdictions: fixation• also: derivative works - translations, adaptations• also: compilations, collections• no formalities required
• What rights are reserved?• For how long?• Are there any exceptions?
A. Copyright
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• What is protected?• What rights are reserved?
• economic• make copies• make available to the public (upload)• make derivative works
• moral (in some jurisdictions perpetual and non-transferable)• paternity (attribution)• disclosure (first publication)• respect (protection against distortion)
• For how long?• Are there any exceptions?
A. Copyright
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• What is protected?• What rights are reserved?• For how long?
• 70 years after the death of the author• special rules may apply to joint works (films),
anonymous/pseudonymous works or works for hire• Are there any exceptions?
A. Copyright
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• What is protected?• What rights are reserved?• For how long?• Are there any exceptions?
• their exact scope varies among jurisdictions• non-commercial research• private copy• text and data mining?• in the US: fair use
It shall be permissible for published limited parts of a work, small scale works, as well as individual articles from newspapers or periodicals to be made available to a specifically limited circle of persons for their personal scientific research, to the extent that this is necessary for the respective purpose and is justified for the pursuit of non-commercial aims.
art. 52a UrhG
Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement.
s. 29 CDPA
B. Database Right
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• Directive of 11 March 1996 on the legal protection of databases
• national implementations (usually word-for-word)
• does not apply to companies from countries which do not provide for an equivalent level of protection for EU databases (i.e. the United States)
B. Database Right
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• What is protected?• What are the reserved rights?• For how long?• Are there any exceptions?• Anything else I should know?
B. Database Right
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• What is protected?• a collection of independent works, data or other materials arranged
in a systematic or methodical way and individually accessible by electronic or other means.
• qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents
• What are the reserved rights?• For how long?• Are there any exceptions?• Anything else I should know?
B. Database Right
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• What is protected?• What are the reserved rights?
• to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of the database
• to prevent repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database
• For how long?• Are there any exceptions?• Anything else I should know?
B. Database Right
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• What is protected?• What are the reserved rights?• For how long?
• 15 years after each substantial investment• potentially unlimited time
• Are there any exceptions?• Anything else I should know?
B. Database Right
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• What is protected?• What are the reserved rights?• For how long?• Are there any exceptions?
• private purposes (non-electronic databases only);• extraction for the purposes of illustration for teaching or scientific
research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved.
• Anything else I should know?
B. Database Right
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• What is protected?• What are the reserved rights?• For how long?• Are there any exceptions?• Anything else I should know?
• independent from copyright!• watered down by the ECJ setting high standards for protection in
British Horseracing Board (2004)
How to use a work?
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StartIs it
copyrightable?Is it still incopyright?
Is your usecovered by an
exception?
Has it already been licensed?
Is your use covered by the
license?
Use it!
YES YES
YES
YES
NO
NO NO
NO
Contact the copyright owner
YES
NO
Copyright vs. public domain
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Public Domain
non-copyrightableideas, raw facts, ‘works of nature’,official documents
copyright expired> 70 years post mortem
auctoris
copyright waived
Copyrighted works
Orphan Works
Open Access
Orphan Works
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• Directive 2012/28/EU of 25 October 2012 on certain permitted uses of orphan works.
• Applies to writings (books, newspapers etc.), cinematographic works and phonograms in the collections of publicly accessible libraries, educational establishments, museums, archives and film/audio heritage institutions.
• If after diligent search copyright owners cannot be found, the institutions listed above can copy orphan works in their collections and make them available in order to achieve aims related to their public-interest missions
C. Trade Secret
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• Art. 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
• Trade Secret Directive proposed in 2013• Protection against unlawful acquisition, use and disclosure• Definition:
• The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question).
• It must have commercial value because it is a secret.• It must have been subject to reasonable steps by the rightful holder
of the information to keep it secret (e.g., through confidentiality agreements).
How to make your data reusable?
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• Check your institution’s/project’s policy, your contractual obligations
• Clear rights - make sure that you are the owner!• Don’t sell the Eiffel tower!
• Choose a license
• Contact a data repository
C. Licensing
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• What is a license?• What rights can be licensed?• How to choose a license?
C. Licensing
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• What is a license?• a promise not to sue• =/= transfer (sale =/= rental)• piece of cake metaphor
• What rights can be licensed?• How to choose a license?
C. Licensing
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• What is a license?• What rights can be licensed?
• copyright (CC)• database right (CC 4.0, ODbL)
• How to choose a license?
C. Licensing
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• What is a license?• What rights can be licensed?• How to choose a license?
• bespoke or public (prêt-à-porter)?• interoperability - is it compatible with other licenses used in your
community? (attention: Share-Alike!)• openness - freely used, re-used and redistributed by anyone,
subject only, at most, to the requirement to attribute and sharealike
1. Creative Commons
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• foundation started in 2002 by Lawrence Lessig• public license suite + CC0 (waiver)• versions: 1.0, 2.0, 2.5, 3.0; 4.0 launched in November 2013• nearly 50 ported (national) versions• no ported versions of CC 4.0• three layers: machine-readable, lawyer-readable, human-readable• used e.g. by:
• Al Jazeera
• Flickr
• Nine Inch Nails
• Open Course Ware
• Public Library of Science
• wikipedia
• whitehouse.gov
1. Creative Commons
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BYAttribution
NDNo Derivatives
NCNonCommercial
SAShareAlike
You must: identify the creator(s) of the Licensed Material (…); retain a copyright notice; retain a notice that refers to this Public License (and) to the disclaimer of warranties; retain a URI or hyperlink to the Licensed Material if reasonably practicable; indicate if You have modified the Licensed Material (…)
NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange.
Adapted Material means material (…) that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a manner (…)
if You produce and Share Adapted Material, (…) the License You apply must be a Creative Commons license with the same License Elements, this version or later, or a Compatible License.
Creative Commons vs. Open Access
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2. Other Public Open Licenses
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• Open Database License (ODbL)• Open Data Commons Attribution License (OCL)• GNU Free Documentation License (for software documentation)• Open Game License (for compeer games)• Free Art License (for artistic works)• Open Source is a similar, but different movement (software whose
source code is available for inspection and modification)
II. Personal Data
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• Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data
• national implementations
• General Data Protection Regulation 2014?
II. Personal Data
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• What is personal data?• What is processing?• What are special categories of personal data?• When is processing of personal data lawful?• What is consent?• What are the obligations of the data controller?• What are the rights of the data subject?• Are there any exceptions?
II. Personal Data
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• What is personal data?• any information relating to an identified or identifiable natural
person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;
• What is processing?• What are special categories of personal data?• When is processing of personal data lawful?• What is consent?• What are the obligations of the data controller?• What are the rights of the data subject?• Are there any exceptions?
II. Personal Data
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• What is personal data?• What is processing?
• any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction = everything
• What are special categories of personal data?• When is processing of personal data lawful?• What is consent?• What are the obligations of the data controller?• What are the rights of the data subject?• Are there any exceptions?
II. Personal Data
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• What is personal data?• What is processing?• What are special categories of personal data?
• personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
• processing prohibited unless the data subject has given explicit consent or makes the data manifestly public.
• When is processing of personal data lawful?• What is consent?• What are the obligations of the data controller?• What are the rights of the data subject?• Are there any exceptions?
II. Personal Data
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• What is personal data?• What is processing?• What are special categories of personal data?• When is processing of personal data lawful?
• the data subject has unambiguously given his consent• necessary for the performance of a contract to which the data
subject is party• necessary for the compliance with a legal obligation to which the
data controller is subject• What is consent?• What are the obligations of the data controller?• What are the rights of the data subject?• Are there any exceptions?
II. Personal Data
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• What is personal data?• What is processing?• What are special categories of personal data?• When is processing of personal data lawful?• What is consent?
• any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed
• writing recommended (if not obligatory)• What are the obligations of the data controller?• What are the rights of the data subject?• Are there any exceptions?
(a) the identity of the controller and of his representative, if any;(b) the purposes of the processing for which the data are intended;(c) any further information such as- the recipients or categories of recipients of the data,- whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply,- the existence of the right of access to and the right to rectify the data concerning himin so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject.
(a) the identity of the controller and of his representative, if any;(b) the purposes of the processing for which the data are intended;(c) any further information such as- the recipients or categories of recipients of the data,- whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply,- the existence of the right of access to and the right to rectify the data concerning himin so far as such further information is necessary, having regard to the specific circumstances in which the data are collected, to guarantee fair processing in respect of the data subject.
II. Personal Data
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• What is personal data?• What is processing?• What are special categories of personal data?• When is processing of personal data lawful?• What is consent?• What are the obligations of the data controller?
• data economy: adequate, relevant and not excessive data collected for specified, explicit and legitimate purposes and no further processed in a way incompatible with those purposes; data which is no longer necessary should at least be anonymized
• data security: must implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access
• What are the rights of the data subject?• Are there any exceptions?
II. Personal Data
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• What is personal data?• What is processing?• What are special categories of personal data?• When is processing of personal data lawful?• What is consent?• What are the obligations of the data controller?• What are the rights of the data subject?
• information• access to data (rectification, erasure, blocking of unlawfully
processed, inaccurate or incomplete data)• objection (to processing for direct marketing purposes)
• Are there any exceptions?
II. Personal Data
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• What is personal data?• What is processing?• What are special categories of personal data?• When is processing of personal data lawful?• What is consent?• What are the obligations of the data controller?• What are the rights of the data subject?• Are there any exceptions?
• the doctrine of compatible purposes (historical, statistical or scientific - if Member States provide appropriate safeguards)
• vary across jurisdictions• anonymized / pseudonymized data
II. Personal Data - New Regulation
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• Research exception in art. 83• Exception for archive services in art. 83a• New, stricter definition of personal data:
• To determine whether a person is identifiable, account should be taken of all the means reasonably likely to be used either by the controller or by any other person to identify or single out the individual directly or indirectly. To ascertain whether means are reasonable likely to be used to identify the individual, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration both available technology at the time of the processing and technological development.
1.In accordance with the rules set out in this Regulation, personal data may be processed for historical, statistical or scientific research purposes only if:
(a) these purposes cannot be otherwise fulfilled by processing data which does not permit or not any longer permit the identification of the data subject;
(b) data enabling the attribution of information to an identified or identifiable data subject is kept separately from the other information under the highest technical standards, and all necessary measures are taken to prevent unwarranted re-identification of the data subjects.
A. Public Sector Information Directive
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• Directive 2003/98/EC of 17 November 2003 on the re-use of public sector information
• amended by: Directive 2013/37/EU of 26 June 2013
• national implementations
A. Public Sector Information Directive
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• What does it say?• Does it apply to all public sector bodies?• Does it apply to all documents?
A. Public Sector Information Directive
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• What does it say?• public sector bodies (financed for the most part by the State or
regional or local authorities, or other bodies governed by public law) shall make their document available for re-use:
• in open and machine-readable format (where possible and appropriate)
• together with their metadata• may impose conditions where appropriate (through a license),
but they should not be unnecessarily restrictive• Does it apply to all public sector bodies?• Does it apply to all documents?
A. Public Sector Information Directive
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• What does it say?• Does it apply to all public sector bodies?
• university libraries, archives and museums• NOT to universities, educational & research establishments and
cultural institutions• Does it apply to all documents?
A. Public Sector Information Directive
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• What does it say?• Does it apply to all public sector bodies?• Does it apply to all documents?
• NOT to documents to which third parties hold intellectual property rights (copyright, trade secret)
• NOT to documents containing personal data (unless the re-use is compatible with personal data protection law)
B. Service Provider Liability
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• Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)
• national implementations
B. Service Provider Liability
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• The Hosting Provider is not liable for the data that it hosts on condition that:
• he does not have actual knowledge of illegal activity or information; or
• the provider, upon obtaining such knowledge or aware- ness, acts expeditiously to remove or to disable access to the information.
• This does not apply if the recipient of the service is acting under the authority or the control of the provider.
• The liability limitation applies only to Hosting Providers whose activity is of a mere technical, automatic and passive nature (no intervention on the content!)
C. Terms of Service
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• Availability of services• Liability of users• Rights and obligations of users• Intellectual property rights of users (it is possible that by accepting
the ToS you transfer or license your intellectual property rights!)• Become binding contracts if accepted!
