This guide, a user FAQs for Researchers, about the protection of research data, is part of the user guide on copyright, open science and data, meant to offer a state of the art, legally advanced, but still manageable set of rules, guidelines, and resources to enable the full potential of Open Science in the EU research field with a view to addressing copyright and related rights issues.
Research data are the evidence that underpins the answer to the research question, and can be used to validate findings regardless of its form (e.g. print, digital, or physical). These might be quantitative information or qualitative statements collected by researchers in the course of their work by experimentation, observation, modelling, interview or other methods, or information derived from existing evidence. Data may be raw or primary (e.g. direct from measurement or collection) or derived from primary data for subsequent analysis or interpretation (e.g. cleaned up or as an extract from a larger data set), or derived from existing sources where the rights may be held by others. Data may be defined as ‘relational’ or ‘functional’ components of research, thus signalling that their identification and value lies in whether and how researchers use them as evidence for claims. They may include, for example, statistics, collections of digital images, sound recordings, transcripts of interviews, survey data and fieldwork observations with appropriate annotations, an interpretation, an artwork, archives, found objects, published texts or a manuscript.
Research data are likely to be a ‘bundle’ of different types of information and content, sourced from third parties, or created by the researcher. Research data may be factual and/or creative. Data as such, like facts, principles, mathematical concepts and methods are not protected by copyright. However, there are cases in which data, not as such but part of collections, can be protected. Additionally, whereas data as such are not protected by copyright, that does not mean data are not protected by other laws (e.g. confidential information or personal data). This guide will offer guidance in this area with a specific focus on research data.
This information guide will focus on those elements of research data that, might be automatically protected by intellectual property rights such as copyright protected works and databases protected by copyright and/or the Sui Generis Database Right (SGDR).
Research data may be:
Multiple types of protection might exist in research data, or there may be elements that have no legal protection. As explained in this information guide, the default position is that the owners of protected rights can restrict the use of those rights. Licensing is a way to stipulate when and how protected rights in research data can be used by others. Before thinking about licensing or using research data, it is important to understand the rights that can arise automatically in research data. The rest of this guide will discuss copyright and the database right. Sui Generis Database Right – SGDR is a right protecting databases where there has been a substantial investment in obtaining, verifying or presenting the data.
Copyright is a property right in certain types of original literary, artistic and scientific works. Copyright does not protect ideas. Confidentiality protects confidential information. This might be imposed by a contract or if the information is marked confidential. Use of confidential information might give rise to a claim for compensation if confidentiality is breached. Data Subject Rights arise in information that identifies individuals and are recognised by data protection laws in the EU. Patents are registered rights in novel inventions of products or processes. Patent protection is not specifically discussed in this FAQs. Some research data may not benefit from any legal protection, although moral and ethical considerations may apply.
For legal purposes, a ‘database’ means “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.”
Databases are automatically protected by law if:
The content of a database can also be composed of copyright protected works in the first place, such as a database of scholarly articles. However, in this case it is not the copyright in the database that extends to the content, there are simply two independent copyrights in the same database: the copyright in the database structure if it is sufficiently original, and the (independent) copyright in the element constituting the database. In addition, there may also be a SGDR right in the substantial investment in the database. The latter protects the database from substantial extractions, therefore effectively offering a form of protection to data that would otherwise not be protected.
In conclusion, a database may be protected by up to 3 different rights that regulate 3 different uses. They may belong to 3 different authors/owners and follow 3 different rules in terms of exceptions and limitations. Easy isn’t it?
SGDR is owned by the maker of the database, which is usually the person or entity who bears the financial risk. Financial risk in academic research. In academic research the financial risk of projects is usually borne by the institution. It is therefore possible that the SGDR in a database produced during research may be owned by the institution, even where copyright arising in the database may be owned by the researcher. However, contracts among the different parties (funding grants, universities IP policies, researchers employment contracts, etc.) may provide differently.
It is important to check the terms of any funding or collaboration agreement to see whether ownership of the deliverables is specified.
15 years, renewable if a new substantial investment is made.
The SGDR gives the right holder the right to perform or to authorise the extraction (copying) of substantial amount of data, or repeated extraction of insubstantial amount, and their reuse therefore effectively extending protection to the data.
Original literary, musical, dramatic and artistic works may be protected by copyright law. Certain non-original works such as the typographical arrangement of published editions, sound recordings, broadcasts, non-original photographs, the first fixation of films, etc. are also protected by so called rights related to copyright (or neighbouring rights). Copyright is automatic, there no need to register, deposit, apply a © symbol, etc., although all these activities are permitted and may be even helpful. However, they cannot be a condition for copyright protection (this rule applies almost everywhere in the world, as it is enshrined in the Berne Convention, the most relevant international copyright conventions). Copyright law does not protect ideas that are not expressed in an original form of expression, and does not protect data as such, principles, facts, etc.
Copyright law grants the owner the exclusive right to control certain rights such as reproduction, redistribution, communication to the public etc.
For example, when you write a research paper you are automatically the author of that paper. If you write it with others you all become co-authors (as long as everyone made an “authorial” contribution: proofreading, commenting, etc. are usually not considered authorial contributions).
The author is usually the person creating the work, but if the work is created jointly, it may be jointly owned, and if a work is created by someone in the course of a contract of employment it may be owned by the employer (depending on the contract).
The default rule in the EU is the life of the author plus 70 years. Related rights (e.g. sound recording, film fixations, non-original photographs, etc.) all have different periods, which are more or less harmonised in the EU.
Copyright owners have rights to restrict certain acts in relation to the protected work such as copying, distributing and communicating the work to the public. The effect is that in most instances use of copyright protected works requires permission from the owner.
Moral rights are additional rights in copyright works. They are not harmonised at the EU level therefore each EU Member State can have different rules on moral rights. However, the Berne Convention stipulates some minimum standards that must be met. These are:
Moral rights cannot be transferred, but in certain jurisdictions can be waived. They must last at least as long as the economic rights (in the EU 70 + author’s life), but can last longer and in certain jurisdictions they are perpetual.
In the EU, there is no concept of ‘fair use’ of works protected by copyright (or SGDR).
There are however exceptions and limitations that play a similar role, however they do not reach the same flexibility or width as fair use (which is a US concept). Art. 5 of the Copyright in the Information Society Directive of 2001 has a list of about 21 exceptions and limitation to copyright. However, whereas this is a closed list (MS cannot create new exceptions) it is not mandatory (except for the case of temporary acts of reproduction), meaning that each MS can choose which ones to implement. This aspect has attracted strong criticisms as it is not conducive to a level playing field in the EU scientific landscape. For a list of the exceptions and limitations implemented in your country you should refer to your NOAD, which may maintain an updated list.
In absence of an exception or limitation, uses covered by copyright are reserved to their authors. You may however still be able to reuse a work if it is licensed to you or it is generally licensed to the public with a public licence. Creative Commons Licences or FLOSS licences are examples of this type of public (and usually conditional) permissions.
Depending on the type of licence, free use of the research data may be permitted, allowing for use/re-use or re-mixing. Other research data may be subject to certain conditions such as attribution of the original research data owner, or attribution of the owners of other rights in the research data. More restrictive licences may prevent using the research data for commercial purposes or not altering the research data.
If the research data does not specify a licence, it is necessary to consider whether use of any protected content within the research data would infringe the rights of anyone.
Copyright and the sui generis database right (SGDR) arise automatically in qualifying works in the EU. If a dataset contains any protected works, the default position is that these rights are owned by the author or maker.
Depending on the employment contract and the institution’s intellectual property policies, the law may recognise an employee’s copyright as being owned by the employer.
A collaboration or funding agreement may specify that the ownership of the deliverable research lies with the funder, or that the funder has an automatic licence in the research.
For example, datasets collated through social media platforms will be subject to that platform’s terms and conditions which may specify how the data can be used or made available.
While copyright is usually owned by the author of the work, the SGDR in a database is owned by the person or organisation that bore the financial risk in creating the database. This should be verified on a case by case basis, but it is commonly the employer or the unit that has budgetary autonomy.