Agreements for Data Collections    Micah Altman    Senior Research Scientist, Institute for Quantitative      Social Scien...
The plan for today?    Principles and Drivers         Principles of Agreement         Data Lifecycle         Stakehold...
Principles for AgreementsAgreements for Data Collections: Principles                                                  Why...
Common Agreements Involving Data    Data Collection    Data Deposit/Submission    Data Dissemination/Release    Instit...
Data Lifecycle*    Collection    Data Entry & Verification    Processing         Identifier assignment         Intern...
What’s Wrong with the Previous Slide*    Data is changed all the time.    What metadata?    Publications emerge before ...
Stakeholders   Sources                                   Sponsors        Research Subjects                         Hom...
Legal Issues - Types     Intellectual Property       Copyright                                                   Contra...
Legal Issues - Observations     Intellectual Property          Frequently there is a big gap between ownership and contr...
Legal Issues – Observations (Continued)     Contract & License          Contract involved exchange of benefits, license ...
Stakeholders and Legal Requirements                                      Copyright                       DMCA             ...
Stakeholders Implicated as Information      Stakeholder Concerns   Legal IssuesFlows           Research Consumers         ...
Agreement General Questions    What actions are to be undertaken by each     stakeholder?    What risks and responsibili...
Motivating Questions for DataAgreements    Motivating Questions    Who are the stakeholders?    What do the stakeholder...
Data Agreement: Materials        Nature of collections            Legal restrictions: Copyrighted? Public domain? Factua...
Data Agreement: Rights          Use rights              Reproduce, distribute, publicly display, or publicly perform som...
Data Agreement: Obligations          Describe the scope of any obligations to review, manage, test, catalog, index,      ...
Data Agreement: Term        Term of agreement?          Time period; based on conclusion of work; perpetual?          I...
Data Agreement: Fees            What fees will be charged, by whom, and for             what?            Are fees adjust...
Data Agreement: Warrantees        Representations and warranties concerning the intellectual property         rights in t...
Data Deposit Agreement: Disclaimers        General Disclaimers. Each Deposit Agreement should include a general disclaime...
Data Deposit Agreement: Miscellaneous          Is the agreement, or the information exchanged by parties           confid...
Variation: Data Dissemination    Generally includes limited use rights         Analysis, research         Often no redi...
Variation: Data Collection Agreement    Look ahead to rights desired under deposit     and dissemination agreements    D...
ResourcesAgreements for Data Collections: Resources                                                 Library Collection De...
Questions?Questions about this talk, etc.:              Micah_Altman@harvard.eduMicah Altman, Harvard University   Agremen...
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Data Agreements

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Guest Lecture on Data Agreements -- Given @ SILS, UNC, 2009

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Data Agreements

  1. 1. Agreements for Data Collections Micah Altman Senior Research Scientist, Institute for Quantitative Social Science (Associate Director, Harvard-MIT Data Center; Archival Director, Henry A. Murray Research Archive ) Harvard UniversityMicah Altman, Harvard University Agrements for Data Collections 1
  2. 2. The plan for today? Principles and Drivers  Principles of Agreement  Data Lifecycle  Stakeholders  Areas of Law Implications for Agreements  Motivating Questions  Example Checklist Additional ResourcesMicah Altman, Harvard University Agrements for Data Collections 2
  3. 3. Principles for AgreementsAgreements for Data Collections: Principles  Why Formalize Agreements?  Clarify and articulate rights and responsibilities  Distribute risk across parties  Establish record for later individual/institutional memory  Establish institutional commitment  Signal commitment to third parties  Preconditions for success  Meeting of minds  intent to agree, mutual understanding of agreement  Compatible incentives  Compatible capabilities Micah Altman, Harvard University Agrements for Data Collections 3
  4. 4. Common Agreements Involving Data Data Collection Data Deposit/Submission Data Dissemination/Release Institutional Collaboration, Transfer, ExchangeMicah Altman, Harvard University Agrements for Data Collections 4
  5. 5. Data Lifecycle* Collection Data Entry & Verification Processing  Identifier assignment  Internal metadata  Coding  Merging  Cleaning Research and Publication Support Documentation, Dissemination Archiving Recoding, Secondary Analysis, Merging(… and back to the beginning) *(Rinse, Lather, Repeat)Micah Altman, Harvard University Agrements for Data Collections 5
  6. 6. What’s Wrong with the Previous Slide* Data is changed all the time. What metadata? Publications emerge before processing (“the conference is next week”) Dissemination happens early (sometimes…maybe… if I know you) Much data is never archived * (So, I lied)Micah Altman, Harvard University Agrements for Data Collections 6
  7. 7. Stakeholders Sources  Sponsors  Research Subjects  Home institution(s)  Owners of object of study  Government sponsors  Owners of supplementary/  Non-profit sponsors integrated data  Corporate sponsors Producers  Publishers  Primary investigators  Print publishers  Research group  Data archives  Secondary investigators  Consumers  Staff  Readers  Collaborators  Policymakers  Researchers conducting Secondary ResearchMicah Altman, Harvard University Agrements for Data Collections 7
  8. 8. Legal Issues - Types  Intellectual Property  Copyright  Contract & License  DMCA  Explicit Contracts &  Trademark Licenses  Patent  Shrinkwrap/Clickwrap  Database Protection  Trade Secret  Personal Information  Open Access  IRB’s and 45 CFR 26  FOIA  HIPAA  State FOI Laws  Sponsor Deposit  FERPA Requirements  Invasion of Privacy  Federal Records Regulations  DefamationMicah Altman, Harvard University Agrements for Data Collections 8
  9. 9. Legal Issues - Observations  Intellectual Property  Frequently there is a big gap between ownership and control of data  Quantitative data is much more often protected by license (and possibly by DMCA if embedded) than by patent, database protection, trademark, trade secret  Even data that combines existing sources is not necessarily “derivative work”. Merged research databases often exhibit sufficient creativity in selection & organization to constitute an original work  Open Access  Research produced under contract to federal agency constitute federal record, and are subject to FOIA  Grant-funded research does not, unless specifically used to support regulation. More difficult or impossible to FOIA  Most sponsor & journal deposit requirements are not enforced or monitored  Exception: A few journals enforce data deposit for publication effectively. Primarily in bio-sciences.Micah Altman, Harvard University Agrements for Data Collections 9
  10. 10. Legal Issues – Observations (Continued)  Contract & License  Contract involved exchange of benefits, license is a grant of permissions  Shrinkwrap/clickwrap licenses should not be ignored  Most data restriction through license  Personal Information  Generally, difficult for individuals to sue institutions and be awarded much  However, risks of government fines, penalties, curtailing of research grants significant for institutions conducting federally funded research  Releasing data is generally a problem ok if the data is not personally identifiable (social security numbers, credit card numbers, home address, names, etc.), data is public record and/or historical, or data subjects gave informed consent to release  For most data, removing the 19 enumerated direct and indirect HIPAA identifiers is sufficient to show good faith  However, be aware that some data is very difficult or impossible to deidentify:  A/V (unless image and voices are disguised)  Qualitative data (care must be used to remove identifying context like schools attended, as well as explicit identifiers)  High-dimensional sparse data, such as Netflix movie rankings, can be linked using external sourcesMicah Altman, Harvard University Agrements for Data Collections 10
  11. 11. Stakeholders and Legal Requirements Copyright DMCA Trademark Intellectual Property Consumer Interest Open access Patent Trade Secret State FOIA FOI Sponsor Publisher Interests Interests Click-wrap 45 CFR 26 HIPAA FERPA agreements Contract Personal Information Contributor Contracts Licenses Interests Invasion Defamation of Privacy Micah Altman, Harvard University Agrements for Data Collections 11
  12. 12. Stakeholders Implicated as Information Stakeholder Concerns Legal IssuesFlows Research Consumers - Readers Replicate and extend Secondary analysis Fair Use - Secondary researcher Link research Research Publishers Replicable research Copyright - Print publishers Promote use of their publications Licensing - Research archives Protect publisher IP Avoid third party IP/Privacy Issues Replicable Research Copyright Project Personnel: - Investigators Publish - Research Staff Promote use of Publications Track use Research sponsors: Replicable Research Policy Relevance Licensing - Home institution Accessibility of Research Freedom of Information - Funding sources Protect IP Copyright Avoid third party IP/Privacy Issues Research sources: Privacy Licensing - Research Subjects. Confidentiality Copyright - Owners of subject material Intellectual Property DMCA - Owners of supplementary data Informed Consent Privacy Trade secrets Information Transfer Micah Altman, Harvard University Agrements for Data Collections 12
  13. 13. Agreement General Questions What actions are to be undertaken by each stakeholder? What risks and responsibilities does each stakeholder bear? What benefits are exchanged? How will the agreement be monitored? What is the expected timeline for the agreement as a whole, actions, risks, exchanges, monitoring?Micah Altman, Harvard University Agrements for Data Collections 13
  14. 14. Motivating Questions for DataAgreements Motivating Questions Who are the stakeholders? What do the stakeholders require and want? How does the agreement engage with the data lifecycle to ensure these things? What are the motivating questions, use cases, scenarios? What incentives do the stakeholders have to cooperate?Micah Altman, Harvard University Agrements for Data Collections 14
  15. 15. Data Agreement: Materials Nature of collections  Legal restrictions: Copyrighted? Public domain? Factual? Other types? (etc.)  Accompanying metadata?  Formats being delivered? Software required to read/use those formats?  Completeness. Other material required to use or understand collections? Frequency  When, and if applicable, at what intervals, will the materials be delivered? Is there any ongoing duty to update or upgrade the materials? Review/Monitoring  What level of review/acceptance, if any, and by whom  Time period in which for review?  What happens if the reviewer determines that the materials are in some way deficient? Responsibilities related to Materials  Will the depositing institution have any other obligations with respect to the Materials once they are delivered?  Maintain updates?  Maintain particular feeds or pipelines?  Create and maintain a related website?  Install/use software? (Related licensing requirements?)  Technical Standards compliance?Micah Altman, Harvard University Agrements for Data Collections 15
  16. 16. Data Agreement: Rights Use rights  Reproduce, distribute, publicly display, or publicly perform some or all of work.  Prepare derivative works of or otherwise modify? Own derivative works?  Create databases incorporating, re-arrange or compile the collections  Cache, store , archive, reformat. Ownership  Is copyright transferred? (Generally not necessary, not always possible.)  Ownership of right title and interest? Are sublicense rights needed? To whom? Can sub-licensees grant rights? Scope  Can depositor withdraw materials or rights? Under what conditions?  Term/Duration of licenses? Limited to term of agreement?  Exclusivity?  Limited to certain purposes – preservation, personal, instructional, research, non- commercial?  Privacy restrictions – re-identification, linking, merging  Territorial restrictions  Transferability of license?  Revocability?Micah Altman, Harvard University Agrements for Data Collections 16
  17. 17. Data Agreement: Obligations Describe the scope of any obligations to review, manage, test, catalog, index, organize, host, make available, store, preserve, archive, retrieve, maintain, and update, etc. What is the duration of this obligation? The term of the agreement? in perpetuity?  Term of obligation? Terminates with agreement?  Where will materials be stored, hosted, (etc.)?  Are there other conditions under which materials may be deaccessioned? Obligations to distribute materials?  To whom? Under what conditions?  Are there limitations on the fees distributors may charge users?  Is there an obligation to allow redistribution by third party?  Is there a specified end-user license or other required conditions? Does it include obligation to inform end users of restrictions on materials? Must distributor obtain users assent to license?  For what term? Are there obligations to update materials? Under what conditions? Notifications, obligations to notify of changes of copyright/privacy status? Attribution, cite in publications or derivative works? Mention in advertising? Obligations to comply with FOIA (and related state government statutes) requests and/or subpoenas for original materials? Direct response required, or simply permit the Government access to catalog and repository for requestor to search for such materials? Does either party have any obligation to train or provide other assistance to the other party regarding the use or manipulation of the Materials? metadata creation, etc.?Micah Altman, Harvard University Agrements for Data Collections 17
  18. 18. Data Agreement: Term Term of agreement?  Time period; based on conclusion of work; perpetual?  If ongoing, is agreement in accordance with specific provision?  Are there renewal terms? Is renewal automatic? Is there a limit on renewals? Termination rights  Do both parties have the right to terminate for material brach? Is there a period allowed to cure the breach?  Enumerated causes for termination? Or termination allowed without cause?  Right to terminate based on bankruptcy/dissolution/sale/transfer of ownership of parties? Termination effects  Continuing licenses to collections (either transferred or promised) post termination?  Continuing obligations to preserve, update, or perform other actions with respect to collections?Micah Altman, Harvard University Agrements for Data Collections 18
  19. 19. Data Agreement: Fees  What fees will be charged, by whom, and for what?  Are fees adjustable, and on what basis?  When are fees due/payable?  Are other costs incurred explicitly waived?Micah Altman, Harvard University Agrements for Data Collections 19
  20. 20. Data Agreement: Warrantees Representations and warranties concerning the intellectual property rights in the Materials?  the Materials do not infringe any third party’s intellectual property rights (copyright, patent, trademark, trade secret);  the depositing institution has the right to grant the rights granted in the Deposit Agreement;  the depositing institution has confirmed that any copyright restrictions imposed on the Materials are current and accurate;  the Materials do not violate any third party’s right of privacy or publicity, and are not defamatory or libelous. Warranties regarding the accuracy, reliability, currency or completeness of the Materials? Other general warranties  that the depositing institution has the right to enter into the agreement  that the Deposit Agreement does not conflict with any other agreement  that the person executing the agreement has the authority to do so on behalf of the depositing institution  that the Materials and the depositing institution’s performance under the Deposit Agreement complies withMicah Altman, Harvard University Agrements for Data Collections 20
  21. 21. Data Deposit Agreement: Disclaimers General Disclaimers. Each Deposit Agreement should include a general disclaimer of consequential, indirect, punitive and incidental damages. Specific Disclaimers. Disclaiming liability for any loss or damage to the Materials. Are there other specific disclaimers that are appropriate for the Materials? Limitation of Liability. Include a dollar limitation on the direct damages that may be recovered under the Deposit Agreement?  If included, will the limitation of liability protect both parties?  In general, the limit on direct damages should have some relationship to the risks involved, the potential damages that may be incurred, and each party’s need/desire to limit the risk undertaken pursuant to the agreement.  Note that if no fees are charged under the Deposit Agreement, limiting direct damages to the fees charged may not be enforceable in certain states because such a provision does not provide an effective remedy. Indemnity based on breach of contract or of the representations and warrantie? Will the the depositing institution indemnify, defend and/or hold harmless the receiver from third party claims?  alleging that the Materials infringe a third party’s intellectual property rights;  alleging that the Materials infringe a third party’s rights of privacy and/or publicity;  alleging that the Materials are defamatory or libelous; or  alleging property damage or injury;  alleging tortious interference;  based on the depositing institution’s violation of law;  based on the depositing institution’s negligence or willful misconduct. Mutual indemnity? Under what circumstances, and with what exceptions? Notes:  Often request for indemnity will trigger a request for mutual indemnity.  Indemnity and warranties are overlapping However, biggest risk is from third parties – indemnity, not warranty.  Consider explicitly excluding liability based on specific disclaimers.  If fees, or dollar limits are mentioned, consider excepting indemnity from these limits?  Be aware that depositors may have a limited ability to enter into an indemnifying agreement (e.g. government entities sometimes cannot enter such agreements), or may not have the resources to provide effective indemnification should a third party allegation arise.Micah Altman, Harvard University Agrements for Data Collections 21
  22. 22. Data Deposit Agreement: Miscellaneous Is the agreement, or the information exchanged by parties confidential? Who are points of contact? Governing law; jurisdiction; venue? Dispute resolution procedure? Force majeure? Waiver and severability? Entire agreement provision? Copyright or licensing of agreement itself (e.g. Creative Commons)? Notices Amendment and modifications Assignment Relation of the parties/independent contractors Advertising clauses; use of institutional logos and trademarksMicah Altman, Harvard University Agrements for Data Collections 22
  23. 23. Variation: Data Dissemination Generally includes limited use rights  Analysis, research  Often no redistribution/derivative works rights Point in time license, no termination for specific release Generally includes obligations  Attribution  Notification by user to source of problems  Privacy obligations Often no warranties, indemnificationMicah Altman, Harvard University Agrements for Data Collections 23
  24. 24. Variation: Data Collection Agreement Look ahead to rights desired under deposit and dissemination agreements Data collection agreements should grant rights/obtain informed consent for these usesMicah Altman, Harvard University Agrements for Data Collections 24
  25. 25. ResourcesAgreements for Data Collections: Resources  Library Collection Development?  Library of Congress Digital Preservation Website: <http://www.digitalpreservation.gov>  Data Preservation Alliance for the Social Sciences: <http://www.icpsr.org/datapass/> Micah Altman, Harvard University Agrements for Data Collections 25
  26. 26. Questions?Questions about this talk, etc.: Micah_Altman@harvard.eduMicah Altman, Harvard University Agrements for Data Collections 26

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