Data: legal issues 5 October, 2015 Marianne Renkema and Hugo Besemer

We all have our ideas about legal issues. Let’s test them by discussing a case  Is data your intellectual property?  Who is the owner of the data?  Can you still make a claim on your data after you finished your PhD?

Issues  Ownership Ownership  Intellectual Property rights Intellectual Property rights  Privacy Privacy  Research data retention Research data retention

Ownership  No central WUR policy yet  Contracts: ● Employer-employee ● Research group-employee or student ● Research group-funder ● With commercial partners  Use the Data Management Plan to discuss matters with your supervisors

Research Data Ownership ‘The default case’: what does the law say when nothing is arranged? The data were collected as a part of a PhD project at a certain university, there are no confidentiality or privacy issues, no university policy. What can a PhD do with the data during the project? And after his project? Can he take the data with him? What is the ‘standard procedure’ if there is one (or should be one).

Research Data Ownership The PhD collects data as part of his/her work. Presume that substantial investment of time and effort was made: Dutch law provides 15 year. Protection on copying/duplification of the databank. There may be copyrights on (some of the) data as well. The copyrights is vested in the author (scientific exemption), thus the PhD. The databank rights is vested in the maker, here the institution. Due to obligations on reproducibility and verification in science the dataset must be stored in such a way that its authenticity (is it what it says it is) and its integrity (the original, uncorrupted bitstream) are maintained and open for checks from third parties and further research in the institution (Gedragscode Wetenschapsbeoefening). The PhD retains future use of the dataset.

Research Data Ownership Open Access requirements from the institution apply. Data management arrangements as laid down within the institution apply: Beware of the Standard Evaluation Protocol

Source of previous slides: Seminar Research Data Ownership Rotterdam Science Tower December 2nd, 2014 Rob Posthumus Erasmus Centre for Valorisation

Intellectual Property Rights  Copyrights  Industrial Property ● Patents ● Industrial designs ● Trademarks ● Geographical indications ● Trade Secrets Sui Generis systems ● Plant Variety Protection (Plant Breeders’ Rights) ● Database rights Protection of works, ideas, inventions,... MSc course LAW-32306

What about 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 ● Database rights ● None

No legal protection  Raw data or facts  Effort to produce data

Copyright  The form in which data is 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  Employer of the creator Copyright can be given away, sold, inherited, waived, claimed by funding agent or 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 Introduced in the EU in 1996 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 provide a “terms of use” (licence)  A researcher wants to use data from other people ● He can download and use the data ● He cannot publish the data(base) without permission

You can make data available with usage 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?

Data made available via DANS

DRYAD: research data repository

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

Research Data Retention 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.

Who requires (or recommends) retention?  Institutions  Funders  Learned societies / disciplines  Journals ... 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

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. wledgebase/2009/SURFdirect_De+juridische+status+va n+ruwe+data_wegwijzer_ENG.pdf wledgebase/2009/SURFdirect_De+juridische+status+va n+ruwe+data_wegwijzer_ENG.pdf  Ball, A. (2012). ‘How to License Research Data’. DCC How-to Guides. Edinburgh: Digital Curation Centre. research-data research-data

Questions?