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IPR: Legal Issues in Research Data Collection and Sharing by EUDAT

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v1.0, June 2014 - The development of skills and competence to manage IPR and leverage its influence requires increasing focus. However, how much detail do you know? Take copyright for example, What …

v1.0, June 2014 - The development of skills and competence to manage IPR and leverage its influence requires increasing focus. However, how much detail do you know? Take copyright for example, What exactly is protected?, What rights are reserved and for how long? This presentation addresses such questions on copyright and other topics such as Database Right, Trade Secret and Licensing.
Who is it for?: Researchers, Data Managers, General public.

Published in: Data & Analytics, Education
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  • 1. Exponentialgrowth Legal Issues in Research Data Collection and Sharing: Intellectual Property Rights www.eudat.eu 1 Exponentialgrowth Part of an EUDAT series on Legal Issues www.eudat.eu Content generated by Pawel Kamocki, IDS Mannheim V1.0 – June 2014
  • 2. Table of Contents I. Intellectual Property Rights A. Copyright B. sui generis Database Right C. Trade Secret D. Licensing 1. Creative Commons Exponentialgrowth www.eudat.eu 2 1. Creative Commons 2. Other public licenses 3. EUDAT Policy II. About EUDAT Exponentialgrowth
  • 3. I. Intellectual Property RightsExponentialgrowth • Property? -Usus - the right to use -Fructus - the right to enjoy the fruits (make profits) -Abusus - the right to dispose of www.eudat.eu 3 Exponentialgrowth • Intellectual? -in products of human intellect -ger. Geistiges Eigentum -intangible assets (distinct from corpus mechanicum)
  • 4. I. Intellectual Property Rights cover Patents Copyright Industrial Property Neighboring (Related) Rights www.eudat.eu 4 Trademarks Database right (Industrial) Designs Trade secret Neighboring (Related) Rights
  • 5. A. Copyright Directives • the Berne Convention for the protection of literary and artistic works 1886 • Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 • World Intellectual Property Organisation's Copyright Treaty 1996 • Directive 2001/29/EC of 22 May 2001 on the harmonization of certain www.eudat.eu 5 • Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright in the information society • Directive 93/98/EEC harmonizing the term of protection of copyright • Directive 2009/24/EC on the legal protection of computer programs • National implementations (CDPA, UrhG, Code de la propriété intellectuelle…) www.eudat.eu
  • 6. A. Copyright • What is protected? • What rights are reserved? • For how long? www.eudat.eu 6 • For how long? • Are there any exceptions? www.eudat.eu
  • 7. A. Copyright • What is protected? • scientific, literary and artistic works, regardless of their value • NOT: ideas, raw facts, mathematical formulas • originality = choice (personal imprint; selection and arrangement; labour, skill and judgement; author’s own intellectual creation) • in some jurisdictions: fixation www.eudat.eu 7 • in some jurisdictions: fixation • also: derivative works - translations, adaptations • also: compilations, collections • no formalities required www.eudat.eu
  • 8. A. Copyright • What is protected? • What rights are reserved? • economic • make copies • make available to the public (upload) • make derivative works www.eudat.eu 8 • make derivative works • moral (in some jurisdictions perpetual and non- transferable) • paternity (attribution) • disclosure (first publication) • respect (protection against distortion) www.eudat.eu
  • 9. A. Copyright • What is protected? • What rights are reserved? • For how long? • 70 years after the death of the author (in the EU and in the US; other countries min. 50 years after the death of the author) www.eudat.eu 9 years after the death of the author) • a tendency to extend the term of protection (see: http://en.wikipedia.org/wiki/File:Copyright_term.svg or https://www.eff.org/issues/intellectual-property/the-term) • special rules may apply to anonymous/pseudonymous works, works for hire, posthumous works, joint works…
  • 10. A. Copyright • What is protected? • What rights are reserved? • For how long? • Are there any exceptions? • their exact scope varies among jurisdictions It shall be permissible for published limited parts of a work, small scale works, as well as individual articles from newspapers or periodicals to be made available to a specifically limited circle of persons for their personal scientific research, to the extent that this is necessary for the respective purpose and is justified for the pursuit of non- www.eudat.eu 10 jurisdictions • non-commercial research • private copy • text and data mining? • in the US: fair use and is justified for the pursuit of non- commercial aims. art. 52a UrhG Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non- commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement. s. 29 CDPA
  • 11. B. Database Right • Directives • What is protected? • What are the reserved rights? • For how long? www.eudat.eu 11 • For how long? • Are there any exceptions? • Anything else I should know?
  • 12. B. Database Right Directives • Directive of 11 March 1996 on the legal protection of databases • national implementations (usually word-for-word) www.eudat.eu 12 • does not apply to companies from countries which do not provide for an equivalent level of protection for EU databases (i.e. the United States)
  • 13. B. Database Right • What is protected? • a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. www.eudat.eu 13 electronic or other means. • qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents
  • 14. B. Database Right • What is protected? • What are the reserved rights? • to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of the database www.eudat.eu 14 contents of the database • to prevent repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database
  • 15. B. Database Right • What is protected? • What are the reserved rights? • For how long? • 15 years after each substantial investment • potentially unlimited time www.eudat.eu 15
  • 16. B. Database Right • What is protected? • What are the reserved rights? • For how long? • Are there any exceptions? • private purposes (non-electronic databases only); www.eudat.eu databases only); • extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non- commercial purpose to be achieved.
  • 17. B. Database Right • What is protected? • What are the reserved rights? • For how long? • Are there any exceptions? • Anything else I should know? • independent from copyright! www.eudat.eu 17 • independent from copyright! • watered down by the ECJ setting high standards for protection in British Horseracing Board (2004) (see: James Boyle: Two database cheers for the EU)
  • 18. How to use a work? Start Is it copyrightable? Is it still in copyright? Is your use covered by an exception? Use it! YES YES YES NO NO NO www.eudat.eu 18 Has it already been licensed? Is your use covered by the license? Use it! YES NO NO Contact the copyright owner YES NO
  • 19. Copyrighted worksPublic Domain Copyright vs. public domain non-copyrightable ideas, raw facts, ‘works of nature’, official documents www.eudat.eu 19 copyright expired > 70 years post mortem auctoris copyright waved Open Access Orphan works
  • 20. Orphan Works • Directive 2012/28/EU of 25 October 2012 on certain permitted uses of orphan works. • Applies to writings (books, newspapers etc.), cinematographic works and phonograms in the collections of publicly accessible libraries, educational establishments, museums, archives and film/audio heritage institutions. www.eudat.eu 20 heritage institutions. • If after diligent search copyright owners cannot be found, the institutions listed above can copy orphan works in their collections and make them available in order to achieve aims related to their public-interest missions
  • 21. C. Trade Secret • Art. 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) • Trade Secret Directive proposed in 2013 • Protection against unlawful acquisition, use and disclosure • Definition: • The information must be secret (i.e. it is not generally known www.eudat.eu 21 • The information must be secret (i.e. it is not generally known among, or readily accessible to, circles that normally deal with the kind of information in question). • It must have commercial value because it is a secret. • It must have been subject to reasonable steps by the rightful holder of the information to keep it secret (e.g., through confidentiality agreements).
  • 22. How to make your data reusable? • Check your institution’s/project’s policy, your contractual obligations • Clear rights - make sure that you are the owner! www.eudat.eu 22 owner! • Don’t sell the Eiffel tower! • Choose a license • Contact a data repository
  • 23. D. Licensing • What is a license? • What rights can be licensed? • How to choose a license? www.eudat.eu 23
  • 24. D. Licensing • What is a license? • a promise not to sue • =/= transfer (sale =/= rental) • piece of cake metaphor www.eudat.eu 24
  • 25. D. Licensing • What is a license? • What rights can be licensed? • copyright (CC) • database right (CC 4.0, ODbL) www.eudat.eu 25 ODbL
  • 26. D. Licensing • What is a license? • What rights can be licensed? • How to choose a license? • bespoke or public (prêt-à-porter)? • interoperability - is it compatible with other licenses used in your community? www.eudat.eu 26 licenses used in your community? (attention: Share-Alike!) • openness - freely used, re-used and redistributed by anyone, subject only, at most, to the requirement to attribute and sharealike (Open Definition) • dual licensing possible
  • 27. 1. Creative Commons • foundation started in 2002 by Lawrence Lessig, Hal Abelson and Eric Eldred with the support of Center for the Public Domain • public license suite + CC0 (waiver) • versions: 1.0, 2.0, 2.5, 3.0; 4.0 launched in November 2013 • nearly 50 ported (national) versions • no ported versions of CC 4.0 www.eudat.eu 27 • no ported versions of CC 4.0 • three layers: machine-readable, lawyer-readable, human-readable • used e.g. by: • Al Jazeera • Flickr • Google • Nine Inch Nails • Open Course Ware • Public Library of Science • wikipedia • whitehouse.gov
  • 28. 1. Creative Commons BY Attribution ND No Derivatives You must: identify the creator(s) of the Licensed Material (…); retain a copyright notice; retain a notice that refers to this Public License (and) to the disclaimer of warranties; retain a URI or hyperlink to the Licensed Material if reasonably practicable; indicate if You have modified the Licensed Material (…) Adapted Material means material (…) that is derived from or based upon the Licensed Material and in which the Licensed Material is translated, altered, arranged, transformed, or otherwise modified in a www.eudat.eu 28 No Derivatives NC NonCommercial SA ShareAlike NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation. For purposes of this Public License, the exchange of the Licensed Material for other material subject to Copyright and Similar Rights by digital file-sharing or similar means is NonCommercial provided there is no payment of monetary compensation in connection with the exchange. translated, altered, arranged, transformed, or otherwise modified in a manner (…) if You produce and Share Adapted Material, (…) the License You apply must be a Creative Commons license with the same License Elements, this version or later, or a Compatible License.
  • 29. Creative Commons vs. Openness www.eudat.eu 29
  • 30. 2. Other Public Open Licenses • Open Database License (ODbL) • Open Data Commons Attribution License (OCL) • GNU Free Documentation License (for software documentation) • Open Game License (for compeer games) • Free Art License (for artistic works) • Open Source is a similar, but different movement (software whose www.eudat.eu 30 • Open Source is a similar, but different movement (software whose source code is available for inspection and modification)
  • 31. 3. EUDAT’s Open Access Policy • EUDAT position statement ‘Data Access and Management in the EUDAT Collaborative Data Infrastructure’ published in January 2014 www.eudat.eu 31 ‘EUDAT believes fundamentally in open access. By open access we mean the free availability of data on the public Internet, permitting any user to reproduce and redistribute them for any purpose, and in particular for the purpose of non- commercial research, without financial, legal or technical barriers. The only allowable constraint on reproduction and redistribution should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited’ (inspired by the Budapest Open Access Initiative Statement 2002)
  • 32. 3. EUDAT Licensing Recommendations • EUDAT recommends the use of the following licenses: • CC BY v. 4.0 - a liberal, widely used license compatible with the definition of Open Access as understood by EUDAT and respecting academic ethical standards (attribution); www.eudat.eu 32 (attribution); • Alternatively, an Open Data Commons license: • Open Data Commons Attribution License v. 1.0 (similar to CC BY, but with imperfect language) • Open Data Commons Open Database License (ODbL) v. 1.0 (a copyleft (viral) license compatible with CC BY-SA and with the Open Definition)
  • 33. II. About EUDAT a pan-European initiative building a sustainable cross- disciplinary and cross-national data infrastructure providing a set of shared services for accessing and preserving research data EUDAT is... www.eudat.eu supporting multiple research communities by working closely with them to deliver these technical services as part of the EUDAT Collaborative Data Infrastructure (CDI)
  • 34. II. About EUDAT A truly pan-European Infrastructure Research Communities National Data Centres Technology Providers Offering permanence, www.eudat.eu general data centres community centres representing all the associated community data centres Offering permanence, persistence, reliability and long term solutions
  • 35. II. About EUDAT The EUDAT services suite www.eudat.eu
  • 36. Contact us for more information eudat-pmo@postit.csc.fi www.eudat.eu 36 The author wishes to acknowledge the many valuable suggestions made by: Marc Stauch, Ville Oksanen & Adam Carter Content generated by Pawel Kamocki, IDS Mannheim, kamocki@ids-mannheim.de

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