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Data, data ownership and Open Science

Presentation by Dr. Thomas Margoni, CREATE

This OpenAIRE and EOSC-hub webinar covers Horizon 2020 rules and good practices approaches to addressing Open Data, Open Science and research results exploitation in Consortium Agreements and in Data Management Plans. It also specifically covers the issues of concern between Open Science and exploitation (patents, spin offs/ outs, confidentiality), business planning and licensing strategies.

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Data, data ownership and Open Science

  1. 1. Data, data ownership and Open Science Open Science and Research Results Exploitation: friends or foes? OpenAIRE/EOSC Webinar Dr. Thomas Margoni Senior Lecturer in Intellectual Property and Internet Law Director of the IP LLM Programme Co-director, CREATe School of Law – CREATe University of Glasgow
  2. 2. Example: OpenMinTeD Copyright theory (and sometimes copyright law) says: no E.g.: principles, facts, data as such, etc are not protected by copyright law (Arts. 2 WCT, 9(2) TRIPs, but also generally in Berne and most legal traditions). Other areas of law may say yes, but usually in specifically identified situations, or with limited remedies e.g.: 1) Trade secrets, confidentiality (only if secret and limited remedies) 2) Contracts (enforceability and remedies) 3) Data protection (only qualifying information and scope is protection of private life not investment) Is data owned?
  3. 3. Example: OpenMinTeD Some jurisdictions however offer some sort of protection to data: e.g. EU offers protection against substantial extractions of certain non original databases therefore effectively protecting obtained data (but not created data) Other jurisdictions regularly consider creating a new right protecting data producers (not just databases), etc. Is data owned?
  4. 4. Example: OpenMinTeD But if we take a closer look, EU Copyright law (doesn’t say anything explicit but) often means: YES. Interplay between Arts. 2 and 5, especially 5(1) InfoSoc requires you to obtain an authorisation for data capturing/extraction. Otherwise we would not need a e.g. TDM exception! Modern data analysitics (e.g. TDM, machine learning etc. normally extracts principles, facts, data, correlations, etc,) which copyright theory says are not protected, thus the extraction of those unprotected elements from protected works should not need an exception if copyright framework was properly designed (e.g.: the right to read is the right to mine). Main problem with EU copyright design is that it is not properly designed: it harmonises rights broadly (reproduction, redistribution, communication to the public, etc), but does not do the same with exceptions (exhaustive but not mandatory list, narrow interpretation, etc). Main problem with this design is that you can only allow what you are aware of. This is an implicit (or perhaps quite explicit) presumption in favour of protection of investment vs. open science and distributed innovation. Is data owned and why does it matter for OS?
  5. 5. Example: OpenMinTeD International/EU copyright laws: By excluding protection of factual information as such and of non-original databases where data are created the law’s goal is to avoid as much as possible so-called “single source databases” due to their anti-competitive and monopolistic nature and to the distortion of scientific freedoms and fundamental rights that they may cause. Data are the basic bricks of human knowledge and should not be owned but held in the public domain for everyone to have access to it, but also to verify, reuse and replicate. By affording protection to the obtaining of data structured in non original database against substantial extractions a limited reward for the investment is given to the maker under EU law (but not elsewhere). Is data owned and why does it matter for OS?
  6. 6. Example: OpenMinTeD 1) Text and Data mining: any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations; 2) Scope: exception to the right of reproduction; 3) Beneficiaries: research organisations with lawful access for research purposes; Art. 4 to everyone but can be contracted out. 4) Relationship to contracts: Art. 3 Cannot be limited by contract; Art. 4 can. 5) Relationship to technology: Can be limited by technological measures (integrity measures and TPM) Example: Arts. 3-4 CDSMD
  7. 7. Example: OpenMinTeD OpenAIRE has 3 published guides for researchers at the moment: ● How do I know if my research data is protected? ● How do I license my research data? ● Can I reuse someone else’s research data? And a companion guide to help address open science issue for repositories: ● Making your repository Open And a recent article: Licensing FAIR data for reuse ● Guides
  8. 8. Open Access Week 2019 Thank you! Dr. Thomas Margoni Senior Lecturer in Intellectual Property and Internet Law Director of the IP LLM Programme Co-director, CREATe School of Law – CREATe University of Glasgow