1. Policy for Publicly Funded Scientific Data in the U.S. Symposium on the Value of Shared Access and Reuse of Publicly Funded Scientific Data 1 December 2010 Paul F. Uhlir, J.D. Board on Research Data and Information National Research Council Washington, DC puhlir@nas.edu

2. Policy for Publicly Funded Scientific Data in the U.S. In this presentation I will:  Identify some of the major trends and stakeholders in the data policy process;  Review the main legislative and regulatory sources for government and government funded data and information policies; and  Examine a few of the principal issues in government and government- funded scientific data.

3. Policy for Publicly Funded Scientific Data in the U.S. Developments promoting greater openness: Liberalization of public information regimes after Cold War Rise of the globally networked cyber-infrastructure New paradigms of open science and digital commons Forces favoring greater secrecy and proprietary restrictions: Economic pressures on discretionary public expenditures leading to both privatization and commercialization of data IPRs increasingly broader, deeper, longer, stronger National security based restrictions (increased post 9/11) Norms and practices in flux as scientific community adjusts to conflicting trends.

4. Policy for Publicly Funded Scientific Data in the U.S. Key stakeholders in the development of scientific data access policies: Top down policy development Government(s) Research funding agencies International and intergovernmental (scientific) organizations Bottom up policy development Universities and not-for-profit research institutes Industry research institutions Informatics organizations/institutions (libraries, data centers, archives) Learned societies (umbrella research community organization) Individual researchers General public and NGOs

5. Policy for Publicly Funded Scientific Data in the U.S. OMB Circular A-130 Copyright Act Freedom of Information Act Sunshine in Government Act Federal Advisory Committee Act Paperwork Reduction Act Government Paperwork Elimination Act E-Government Act Clinger-Cohen Act (Information Technology Management Reform Act) Privacy Act Individual Federal agency legislation/regulation/policies/contracts and grants And so on....

6. Policy for Publicly Funded Scientific Data in the U.S. OMB Circular A-130 – Considerations/Assumptions Government information is a valuable national resource. It provides the public with knowledge of the government, society, and economy -- past, present, and future. It is a means to ensure the accountability of government, to manage the government's operations, to maintain the healthy performance of the economy, and is itself a commodity in the marketplace. The free flow of information between the government and the public is essential to a democratic society. It is also essential that the government minimize the Federal paperwork burden on the public, minimize the cost of its information activities, and maximize the usefulness of government information.

7. Policy for Publicly Funded Scientific Data in the U.S. A-130 – Considerations/Assumptions (continued) In order to minimize the cost and maximize the usefulness of government information, the expected public and private benefits derived from government information should exceed the public and private costs of the information, recognizing that the benefits to be derived from government information may not always be quantifiable. The nation can benefit from government information disseminated both by Federal agencies and by diverse nonfederal parties, including State and local government agencies, educational and other not-for-profit institutions, and for-profit organizations.

8. Policy for Publicly Funded Scientific Data in the U.S. A-130 – Considerations/Assumptions (continued) Because the public disclosure of government information is essential to the operation of a democracy, the management of Federal information resources should protect the public's right of access to government information. The open and efficient exchange of scientific and technical government information, subject to applicable national security controls and the proprietary rights of others, fosters excellence in scientific research and effective use of Federal research and development funds.

9. Policy for Publicly Funded Scientific Data in the U.S. OMB Circular A-130 (continued) How must agencies avoid improperly restrictive practices? Agencies will:  Avoid establishing, or permitting others to establish on their behalf, exclusive, restricted, or other distribution arrangements that interfere with the availability of information dissemination products on a timely and equitable basis;  Avoid establishing restrictions or regulations, including the charging of fees or royalties, on the reuse, resale, or redissemination of Federal information dissemination products by the public; and,  Set user charges for information dissemination products at a level sufficient to recover the cost of dissemination but no higher. They must exclude from calculation of the charges costs associated with original collection and processing of the information.

10. Policy for Publicly Funded Scientific Data in the U.S. § 105. Subject matter of copyright: United States Government works Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

11. Policy for Publicly Funded Scientific Data in the U.S. § 102. Subject matter of copyright: In general (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

12. Policy for Publicly Funded Scientific Data in the U.S. Countervailing polices and practices that may limit the free and unrestricted access to and use of government data and information: Statutory exemptions to public-domain access and use based on specific national security concerns, the need to protect personal privacy, and to respect confidential information (plus other exemptions in Freedom of Information Act). Government agencies generally protect the proprietary rights in information originating from the private sector that are made available for government use, unless expressly exempted. Government agencies may not be allowed to compete directly with the private sector in providing information products and services, outside their legislative mandate. Government-generated information is not necessarily provided free, even if there are no restrictions on reuse. Any charges, however, may pose an insurmountable barrier to access by the most disadvantaged potential users.

13. Policy for Publicly Funded Scientific Data in the U.S. Recent scientific data policy developments in the federal government White House Inter-Agency Working Group on Digital Data (See: Harnessing the Power of Digital Data for Science and Society [2009]) National coordination International coordination Education and workforce Data research Data systems development and deployment Data assurance Data quality Integration and interoperability Data.gov Portal

14. Policy for Publicly Funded Scientific Data in the U.S. Advantages of open availability and unrestricted reuse of publicly funded scientific data: Promotes interdisciplinary, inter-institutional, and international research; Enables automated knowledge discovery; Avoids duplication of research and promotes new research and new types of research; Reinforces open scientific inquiry and encourages diversity of analysis and opinion; Allows for the verification of previous results; Makes possible the testing of new or alternative hypotheses and methods of analysis; Supports studies on data collection methods and measurement; Facilitates the education of new researchers; Enables the exploration of topics not envisioned by the initial investigators; Permits the creation of new data sets when data from multiple sources are combined; Promotes capacity building in developing countries; and Generally helps to maximize the research potential of new digital resources and technologies, and provides greater returns from public investments in research. Many other socioeconomic and good governance advantages and justifications outside research.

15. Policy for Publicly Funded Scientific Data in the U.S. Individual Federal agency legislation/regulation/policies/contracts and grants:  The rules for and by each department or agency differ according to its mission and history, with the overlay of default rules identified above.  The way that access to and reuse of scientific data is handled within each federal research agency usually varies within the organization’s subunits.  The policies for government funded researchers also vary widely, depending on institution, subunit, type of research, and funding instrument (e.g., grant, contact, CRADA)  Implementation of the data policies required or suggested by the federal funder in the university or other non-governmental research organization is also affected by that university’s or organization’s rules and policies for such data.  The norms and practices developed over decades by each discipline influence the way data are handled by the individual researcher and change over time as well. Bottom line: “it depends”

16. Policy for Publicly Funded Scientific Data in the U.S. Continuing Challenges… Promoting openness as a default rule Intellectual property rights for databases Public-private partnerships Hyper-secrecy and classification of data Socio-cultural norms and attitudes Long-term sustainability of data collections Automated knowledge discovery Integrated open knowledge environments Data for decision making and development Economic and social value/return on investment

17. Policy for Publicly Funded Scientific Data in the U.S. Some works written or edited by the speaker on this topic (all available freely online):  Bits of Power: Issues in Global Access to Scientific Data (NAS, 1997).  The Role of S&T Data and Information in the Public Domain (NAS, 2003).  Reichman, J.H. and Paul F. Uhlir, “A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment, 66 Law & Contemporary Problems 315-462 (2003).  UNESCO Policy Guidelines for the Development and Promotion of Governmental Public Domain Information (2004).  Open Access and the Public Domain in Digital Data and Information for Science (NAS, 2004).  Strategies for Open Access to and Preservation of Scientific Data in China (NAS, 2006).  Uhlir & Schröder, “Open Data for Global Science”, Data Science Journal, CODATA (2007).  Uhlir, et al, “Toward Implementation of the GEOSS Data Sharing Principles”, Journal of Space Law (2009).  Reichman, Dedeurwaerdere, and Uhlir, “Designing the Microbial Research Commons: Global Intellectual Property Strategies for Accessing and Using Essential Public Knowledge Assets”, Yale University Press (forthcoming 2011).