1. ENABLING ACCESS TO AND RE-USE OF PUBLICLY FUNDED RESEARCH DATA AS OPEN EDUCATIONAL RESOURCES: A Strategy for Overcoming the Legal Challenges to Data Access and Re-Use PROF ANNE FITZGERALD HASWIRA NOR MOHAMAD HASHIM IP and Innovation Law Research Program Queensland University of Technology Brisbane, Australia http://www.qut.edu.au/law/research/research-areas/intellectual-property-and-innovation-law A REGIONAL SYMPOSIUM ON OPEN EDUCATIONAL RESOURCES 2012

2. PRESENTATION OUTLINE CONTENT SLIDE NO. 1.STRATEGY RECOMMENDATIONS 3STRATEGY RECOMMENDATIONS 2.PART I BASIC COMPONENTS OF THE POLICY4PART I BASIC COMPONENTS OF THE POLICY 3.PART II PROCEDURES OF THE POLICY5PART II PROCEDURES OF THE POLICY 4.PART III GUIDELINES OF THE POLICY6PART III GUIDELINES OF THE POLICY 5.CONCLUSION: FURTHER STRATEGIES 7CONCLUSION: FURTHER STRATEGIES 2

3. 3 STRATEGY RECOMMENDATIONS TO DEVELOP A POLICY: Enabling Access to and Re-Use of Publicly Funded Research Data as OER. MAIN RECOMMENDATIONS: i.Type of policy: action/regulatory; ii.Nature of compliance: mandatory; iii.The standard to be adopted: international standard (OECD, RCUK); iv.The policy framework: basic components, procedures, guidelines; v.The policy criteria: clarity, simplicity, fair, law compliance; vi.Policy making process: bottom-up; and vii.The key stakeholders: the OER Institutions (staffs and students). HASWIRA tables of findings\Table 8.2 Main Recommendations.pdf The main recommendations become a starting point for the development of the policy. Based on the main recommendations, the policy is to be developed in three parts comprising of: i)basic components ii)procedures ; and iii) guidelines.

4. 4 POLICY RECOMMENDATIONS: There are 11 basic components recommended for the policy. The basic components are: i.the title;the title; ii.policy background;policy background; iii.purpose of the policy;purpose of the policy; iv.applicability and scope;applicability and scope; v.effective date;effective date; vi.definitions;definitions; vii.policy statements;policy statements; viii.governing principles;governing principles; ix.action plan;action plan; x.further information; andfurther information; xi.references.references. PART I BASIC COMPONENTS OF THE POLICY

5. 5 PART II PROCEDURES OF THE POLICY PROCEDURES RECOMMENDATIONS: General and specific recommendations on the procedures of the policy. 1. GENERAL RECOMMENDATION: As a general recommendation, the procedures of the policy apply to all research data which are covered by the policy. Compliance by any person (researcher, data steward, data archive, data enclave manager) who is subject to the procedures is mandatory. Any person who fails/refuses to give specific and valid reasons for non-compliance with any of these procedures may be subject to the internal proceedings normally used by public research institutions/public research funding agencies to address lack of performance. In addition, the researcher who fails/refuses to give valid reasons for his/her non-compliance may also risk reduction in funding, restriction of funds or having the entire/remaining payments of the research grant withheld or becoming ineligible for future funding. 2. SPECIFIC RECOMMENDATION: The recommended procedures of the policy are: i.data release procedure;data release procedure; ii.data security procedure;data security procedure; iii.data retention, preservation, maintenance and disposal procedure; anddata retention, preservation, maintenance and disposal procedure iv.data documentation and recordkeeping procedure.data documentation and recordkeeping procedure.

6. 6 PART III GUIDELINES OF THE POLICY GUIDELINES RECOMMENDATIONS: The guidelines adopt the best practices from policies of public research funding agencies and universities from Australia, the UK and the US that support access to and re-use of research data as OER. It also adopts recommendations made by various reports, scholars and experts on the best practices to resolve the legal challenges to access to and re-use of research data as OER. Eleven (11 ) best practices to resolve the legal challenges are recommended as guidelines of the policy. The recommended guidelines deal with i.research data protected as intellectual property;research data protected as intellectual property; ii.ownership of publicly funded research data;ownership of publicly funded research data; iii.data exclusivity;data exclusivity; iv.legitimate use of research data;legitimate use of research data; v.licensing research data;licensing research data; vi.moral rights of data creator/originator;moral rights of data creator/originator; vii.confidential research data;confidential research data; viii.the informational privacy of subjects of research data;the informational privacy of subjects of research data; ix.classified research data;classified research data; x.research data about an invention;research data about an invention; xi.data providers’ duty to ensure data quality.data providers’ duty to ensure data quality.

7. 7 CONCLUSION: FURTHER STRATEGIES 1.AMENDMENTS TO THE EXISTING POLICIES OF MALAYSIAN PUBLIC RESEARCH INSTITUTIONS The amendment is to ensure consistency between the existing policies particularly IP Policy, Research Dissemination Policy and Publicly Funded Research Commercialisation Policy and the proposed policy. The area of possible amendments are policy provisions dealing with ownership, the scope of legitimate use, licensing procedures and moral right of integrity. Also need to be consistent are the provisions dealing with confidentiality, privacy, national security, novelty requirement and data quality. 2. AMENDMENTS TO THE EXISTING LAWS OF MALAYSIA Amendment to introduce a flexible fair dealing exceptions similar to section 200AB Australian Copyright Amendment 2006, a guidelines which provide a set of criteria to determine fair dealings and how much reproduction is allowed under fair dealing exceptions similar to Australian Copyright Act. Amendment to exclude author’s moral right of integrity in certain categories of works like in Australian Copyright Amendment (Moral Rights) Act 2000 and Copyright, Designs and Patents Act 1988 (UK), or to recognise moral right of integrity in specific works only as in Visual Artists Right Act 1990 US). Amendment on Malaysian Data Protection Act 2010 to include protection of subjects of research data. 3. INTRODUCING LAWS TO FACILITATE OPEN ACCESS TO AND RE-USE OF PUBLICLY FUNDED RESEARCH DATA To introduce federal legislations similar to Federal Research Public Access Act (US), Data Quality Act (US) and Freedom of Information Act.

8. THANK YOU haswira.mohamadhashim@student.qut.edu.au