1. Why Legal Interoperability of Research Data? Purpose and Key Concepts
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Why Legal Interoperability of Research Data? Purpose and Key Concepts
Paul F. Uhlir, J.D.
Scholar, National Academy of Sciences

2. Why Legal Interoperability of Data?
Types of data interoperability:
Technical
Semantic/syntactic
Legal (see RDA-CODATA Interest Group’s Principles and Implementation Guidelines for the Legal Interoperability of Research Data at:

3. Why Legal Interoperability of Data?
“Legal interoperability” occurs among multiple datasets when
the legal use conditions are clearly and readily determinable for each of the datasets, typically through automated means;
the legal use conditions imposed on each dataset allow creation and use of combined or derivative products; and
users may legally access and use each dataset without seeking authorization from data rights holders on a case-by-case basis, assuming that the accumulated conditions of use for each and all of the datasets are met.

4. Why Legal Interoperability of Data?
Purposes of legal interoperability of data:
Growing research and innovation opportunities
- Enhancing interdisciplinary and international research
- Enabling data mining
- Promoting new research and new types of research
- Facilitating the education of new generations
- Stimulating downstream applications and commercial innovation
Supporting broad economic benefits and growth
Enhancing social welfare
Promoting effective governance and policymaking
See: Uhlir, Paul F., The Value of Open Data Sharing, A CODATA Report for the Group on Earth Observations. Available at: /zenodo

5. Key Concepts in the Legal Interoperability of Data
Focus here on “public domain” and “attribution only” conditions. Not on other conditions of common-use (e.g., non-commercial, copyleft) or restrictive licenses (greater restrictions on data users than those allowed by statute).
Public domain may be defined as information that is “(1) not subject to copyright or related rights (including database rights), and (2) not subject to conditions on reuse imposed by other means.”
- Sarah Pearson, Creative Commons, private communication (2011).
It is the yin to the proprietary yang.

6. Key Concepts in the Legal Interoperability of Data
Public law default rule—data (and all other forms of information) are automatically subject to all existing legislative and regulatory requirements and restrictions, including protection of:
National security and law enforcement
Confidentiality
Personal privacy
Intellectual property (IP)—copyright, database rights (and patents, trademarks, trade secrets, commercial misappropriation)
Periods of exclusive use by research grantees
And other laws specific to a certain sector or application (e.g., endangered species protection, indigenous rights, etc)

7. Key Concepts in the Legal Interoperability of Data
Copyright
Applies to original and creative works
Databases generally protected by “thin” copyright—original and creative selection, coordination, or arrangement of the data, not facts themselves.
Differs by type of data in database, portions of database, and national law (some may still apply “sweat of the brow” protection based on work and expense in compiling the database)
Exclusions or limitations (e.g., subject matter, like facts) and exceptions (e.g., fair use, fair dealing) also differ
Bottom line: unclear and uncertain application of copyright to databases, and varies significantly.

8. Key Concepts in the Legal Interoperability of Data
Database Protection Law (EU and similar legislation)
In addition to copyright
Provides exclusive property protection to any compiler of information based on a substantial investment
Protects any portion of the database that is more than insubstantial, measured quantitatively or qualitatively
15-year period of protection, automatically extended with each new substantial investment (potentially in perpetuity)
Few exceptions, none mandatory
Government compilations not excluded
Bottom line: provides much greater IP protection, but with uncertainty, and contravenes prior IP law by placing a strong exclusive property right (no actual harm required) on investment, rather than creativity.

9. Key Concepts in the Legal Interoperability of Data
Shortcomings of default public law (legislation/regulation) IP regime:
Unsatisfactory to many producers and users (too strong for some, too weak for others)
Varies greatly across jurisdictions and types of databases
Encourages non-compliance with the law by many users
These shortcomings of public law:
Stimulate producers to turn to more flexible and responsive private law solutions (waivers, licenses, contracts)
Digital networks provide means to implement private law options easily, cheaply, and with greater certainty (power of the two-party deal)

10. Key Concepts in the Legal Interoperability of Data
Public domain status provides greatest flexibility and freedom for data users. Advantages of public domain include:
Full interoperability: data from many sources can be used and combined without restriction.
Reusable: data can be repurposed into new and interesting contexts and disseminated to the world.
Reduced administrative burden: low transaction costs and administrative costs over time.
Legal certainty: users can rely on legal usability of the data.
Source: Thinh Nguyen (2011). “The Web-Enabled Research Commons: Applications, Goals, and Trends.” In Designing the Microbial Research Commons. National Academies Press. Washington, D.C.
Disadvantages of public domain almost entirely for producers:
Loss of control by the producer of the data use downstream, including commercial uses, misuse, etc.
Cannot legally require attribution (but community practice may successfully substitute for that)

11. Key Concepts in the Legal Interoperability of Data
Public domain can be achieved through:
Expiration of copyright or other legislative protections. This is very long and currently perpetual, unless using historical data in the research. It is passive and requires the user to wait. Access can still be subject to payment, although once accessed the database is fully open. Or
The database is composed fully of non-copyrightable subject matter (e.g., an alphabetical directory). But beware the database protection legislation in the EU!
Express waiver by public statute or private law instruments.

12. Key Concepts in the Legal Interoperability of Data
Waiver of all IP rights by public law (statute) is rare.
Example of a public statutory waiver:
Section 105 of U.S. Copyright Act (1976), waiving copyright protection for all federal government works produced in scope of employment.
Many statutes in other countries exempt certain government documents from protection of IP law, such as texts of legislation and judicial decisions, but are not comprehensive waivers of rights.

13. Key Concepts in the Legal Interoperability of Data
Examples of private law, voluntary waiver of rights include:
Creative Commons (CC) Public Domain Mark (used to mark and identify databases already in the public domain) or
CC0 (waiving all copyright and neighboring rights to the work, to the extent allowed by different jurisdictions, i.e., not moral rights of authors)
Waivers of rights rely on community practices or norms for attribution.

14. Key Concepts in the Legal Interoperability of Data
Common-use licenses and contracts are not the same thing.
Common-use licenses:
Are based on existing statutory rights for enforcement
Automatic (do not depend on “agreement” by user)
Do not extend to facts or materials already in public domain (because there is no underlying statutory protection), but can extend to databases or protectable portions of databases (but uncertainty of enforcement remains)
Can be used to decrease level of protection, based on what the database producer/distributor wants. Decreased protection=common use conditions

15. Key Concepts in the Legal Interoperability of Data
Example of a common-use license for databases:
Creative Commons Attribution Only—CC BY 4.0: allows the database user “to Share – to copy, distribute and transmit the work”, and “to Remix – to adapt the work”, as long as the user “attribute[s] the work in the manner specified by the author or licensor”.
However, CC does not recommend use of the CC BY 4.0 license for databases, although the RDA-CODATA Interest Group on the Legal Interoperability of Research Data does.

16. Key Concepts in the Legal Interoperability of Data
Contracts:
Unlike licenses, based on express agreement of the parties.
Requires formal offer, acceptance, consideration, and (usually) written terms. Formal offer and acceptance for databases (and other digital information products) made through click through agreements online or shrink wrap agreements on CDs and other physical media
Unlike licenses, not dependent on enforcement for underlying statute (but must not be for an illegal purpose)
Unlike licenses, can apply to data otherwise unprotected by statute
Contracts are only valid for the agreeing parties (rest of the world not bound), so they can be an uncertain mechanism for rights holders.
Contracts/agreements usually are not standard, unlike licenses, and frequently long, confusing, ignored by the user.

17. Key Concepts in the Legal Interoperability of Data
Examples of common-use contracts (organizational agreements):
GBIF Data Use Agreement (requiring attribution)
Long-term Ecological Data General Data Use Agreement (requiring attribution)
Examples of restrictive contracts:
Most commercial End User Licensing Agreements (EULAs), that provide pages and pages of the owner’s rights and the user’s restrictions.

18. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability A. Governmental Type of Legal Mechanism Summary Description Intergovernmental agreements Governments can enter into treaties or international agreements (multilateral or bilateral) that create binding obligations among governments to exclude government generated or funded data from copyright protection, place research data arising from joint research publicly in the public domain or place data collected in a particular location (i.e., Antarctica) in the public domain.

19. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability A. Governmental (continued) Type of Legal Mechanism Summary Description Intergovernmental policies International or intergovernmental organizations can adopt policies to make certain types of publicly funded research data publicly available without restriction on use or reuse.

20. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability A. Governmental (continued) Type of Legal Mechanism Summary Description National regulations, legis- lation, or policies National governments can enact laws, issue regulations at the ministerial level, or adopt a broad range of policies to place publicly funded research data in the public domain. Government research funding agencies can include requirements in grants or contracts to make resulting research data publicly available without restrictions on use or reuse.

21. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability B. Non-governmental Type of Legal Mechanism Summary Description CC Public Domain Mark The CC Public Domain Mark is used to mark datasets over which copyright has expired, and thus are already in the public domain, enabling their more ready identification in global web searches. Except for data arising in the public domain (e.g., facts) and datasets in historic documents that have been digitized, few datasets should likely have this mark applied.

22. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability B. Non-governmental (continued) Type of Legal Mechanism Summary Description CC0 (No Rights Reserved) To the extent possible under law across the world, the person or authority that associates CC0 with the work waives all copyright and related or neighboring rights to the work, such as the EU database right. It is has been declared compatible with the Open Definition by the Open Definition Advisory Council

23. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability B. Non-governmental (continued) Type of Legal Mechanism Summary Description Open Data Commons Public Domain Dedication and License (PDDL) The PDDL allows the database user to “copy, distribute and use the database”; “produce works from the database”; and “modify, transfer and build upon the database.” It is has been declared compatible with the Open Definition by the Open Definition Advisory Council

24. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability B. Non-governmental (continued) Type of Legal Mechanism Summary Description CC-BY 4.0 (Attribution Only) The CC-BY 4.0, is the least restrictive of the Creative Commons licenses. It permits the user to share and adapt material with minimal attribution requirements. It is has been declared compatible with the Open Definition by the Open Definition Advisory Council

25. The Legal Interoperability of Data
Summary of Legal Mechanisms that Promote Open Data and Legal Interoperability B. Non-governmental (continued) Type of Legal Mechanism Summary Description Non-governmental policies and agreements Nongovernmental organizations can implement policies to retain no rights in research data or implement agreements among institutional members of a consortium to retain no rights in research data.

26. The Legal Interoperability of Data
Take-away points:
Legal interoperability is important for data re-users (e.g., public researchers) rather than for end users who tend to be just consumers.
Public law status quo is uncertain and can be very restrictive for public research users of databases. Data users ignore the law at their own peril.
Public domain status, whether created by lapse or exemption of protection, or by express waiver, provides greatest interoperability and freedom of (re)use for users, but no control or protection for the producer/original rights holder.
An attribution-only license may be used for databases, but is not recommended by Creative Commons because of potential for attribution stacking. Such licenses, however, result in only minor restrictions (conditions) for data users. The scope of enforceability is uncertain for the database rights holder.
Contracts (common-use only) are more certain for the rights holder, but are not standard for the user and can be more burdensome. Consortium agreements, whether governmental, NGO, or hybrid, are OK
The more legal restrictions that are added to access and (re)use, the less appropriate for science.