Data and the law

A first condition for (re)using research data is access. Can you get to it?

Until recently, this access was only organised in the VSNU’s Code of Conduct for Scholarly Work1. This Code of Conduct states that raw data must be kept for five years and be available to third parties on request. In 2011 NWO reversed matters: scientists funded by NWO are obliged to make their data public2.

A second condition to build on research data is permission. Are you allowed to (re)use data? 

Copyright law

Copyright law does not in principle apply to raw research data (naked facts). Facts are free3. Only the form in which facts are presented can be protected. Think, for example, of a scientific article, a film or a book. If you write, draw, photograph, compose or produce you hold the copyright on your ‘work’ or ‘mental creation’ until 70 years after your death. This is automatic: you do not need to apply for copyright4. But for copyright law to apply, the ‘work’ must be presented in an original form and have a personal character. ‘Original’ means that it may not be (partly) copied. The work may be similar to someone else’s work, as long as that is a matter of coincidence. A ‘personal character’ means that creative choices were made and that it is impossible that two makers would arrive at the same work.

       

For instance, if you put naked facts in a table, copyright law does not apply, because any other researcher could have created a similar table. A selection of naked facts may be protected if it is a selection with a personal character.

When copyright law applies, who is the copyright holder? In principle, the copyright holder is the creator of the work. But there are exceptions:

  • If a work is created while in employment, the copyright is held by the employer.
  • If the funding agent includes in the contract that the copyright is transferred to them, which is what NWO did in their funding agreement (regeling subsidieverlening2).

Suppose you want to use a copyrighted form of the research data in addition to the naked facts. You only need permission from the creator if you want to make them public and/or multiply them. You do not need permission for a copy for your own use or studies. You may also at all times use the right to cite, but you may not cite more than strictly necessary for your purposes and you need to mention the name of the creator and the source of the citation.

Database law

Even if the naked facts are free, database law3 may still apply. Database law has nothing to do with creativity or originality of the (content of the) database. It is purely a protection of those who have made a large investment in time and money to collect data and make it available. In the case of such a database, you need permission for:

  • downloading and reusing a substantial part of the database
  • repeatedly downloading a non-substantial part of the database

Want to know more? See the abridged legal guide for raw data5.


License agreements

One of the primary goals of archiving data is to facilitate reuse. Clearly indicating the conditions under which this is allowed, can promote reuse. A license agreement is a legal instrument which indicates in advance under which circumstances a work may be used. 3TU.Datacentrum uses the license agreement developed by DANS6 and has adapted it to 3TU format7 (this is still in the name of the former Director of TU Delft Library). It is a non-exclusive license which means that you may submit your dataset to other parties as well. The license grants 3TU.Datacentrum the permission to make the data available to registered users.

In practice, the limitations in a license can still be too high a barrier for reuse. Suppose you mix datasets with other datasets which are mixed with datasets... If you are obliged to name the maker of the dataset when you build on their data, that may prove a labour intensive (and in the long run impossible) exercise. That is why some data portals go a step further than DANS and 3TU.Datacentrum. Researchers submitting their data to Dryad are asked for permission to publish their data under a so-called Creative Commons Zero (CC0) (no rights reserved) license. CC0 was developed especially to remove legal and technical obstacles for the reuse of research data. Dryad is an international data archive for data on which peer-reviewed articles in the biosciences are based.

“… given the potential for significantly negative unintended
consequences of using copyright, the size of the public domain,
and the power of norms inside science, we believe that copyright
licenses and contractual restrictions are simply the wrong tool
[for data], even if those licenses and contracts are used
with the best of intentions.”

Science Commons Database Protocol FAQ

 

Dryad complies with the recommendations in the report "Legal status of research data"9, which states that copyright holders should give up their rights or allow an exception for non-commercial use. The authors of the report claim that a code of conduct would be sufficient. The report proposes an EU-wide handling of copyright, because sharing of research data transcends country borders. A specific Dutch obstacle that might be in the way of sharing research data is the so-called “protection of non-individual texts” (onpersoonlijke geschriftenbescherming). When copyright law and database law are not applicable, this regulation might still apply. It is purely aimed at preventing the copying of otherwise unprotected materials.

If research data are to be freely shared, obstacles preventing this should be removed as much as possible. The report "Data in public-private projects"10 (Data in publiek-private projecten) comes to the same conclusions:

  • Prevent rights from becoming an obstacle for sharing and reusing research data
  • Use codes of conduct instead of available standard licenses
  • Encourage lawmakers to prevent obstacles for sharing and reusing research data.

A clear direction, towards the future.


Privacy

Privacy can be an obstacle to the accessibility of research data10. In The Netherlands, the relevant law is called the Law for the Protection of Personal Data (Wet bescherming persoonsgegevens; Wbp)11. The Code for the Use of Personal Data in Scientific Research12 translates the law into practical rules. For example, the personal data from these real life event logs from Eindhoven had to be removed before they were submitted to 3TU.Datacentrum.

 

1. VSNU. (2004). Nederlandse Gedragscode Wetenschapsbeoefening. Retrieved 8-12-2011 from http://www.vsnu.nl/Media-item/Nederlandse-Gedragscode-Wetenschapsbeoefening.html
2. NWO. (2011). NWO Regeling Subsidies. Retrieved 8-12-2011 from http://www.nwo.nl/files.nsf/pages/SPES_5VEDDR/$file/Regeling%20subsidieverlening%20NWO.pdf
(Op 12 oktober 2011 verschijnt op de voorpagina van NRC Handelsblad het bijbehorende krantenartikel met de kop "NWO eist onderzoeksdata op". De aanleiding voor deze hernieuwde aandacht is een publicatie in het kwartaalblad E-Research & Data)
3. SURFdirect. (2009). the legal status of raw data: a guide for research practice.
Retrieved 18-12-2011 from http://www.surffoundation.nl/en/publicaties/Documents/SURFdirect_De%20juridische%20status%20van%20ruwe%20data_wegwijzer_ENG.pdf
4. Overheid.nl. (2011). Auteurswet. Retrieved 8-12-2-11 from http://wetten.overheid.nl/BWBR0001886/geldigheidsdatum_13-10-2011
5. SURFdirect. (2009). A brief guide to determining what consent is necessary to reuse other's research data. Retrieved 18-12-2011 from
http://www.surffoundation.nl/en/publicaties/Documents/SURFdirect_De%20juridische%20status%20van%20ruwe%20data_verkorte%20wegwijzer_ENG.pdf
6. DANS licentie overeenkomst gedeponeerde data. Retrieved 8-12-2011 from http://www.dans.knaw.nl/content/dans-licentieovereenkomst-gedeponeerde-data
7. 3TU.Datacentrum. Retrieved 8-12-2011 from
https://docs.google.com/open?id=0B9Ccd1URnalvNGNiOGUzZmQtYmRmMy00YmFiLTlhZTItMmZjOGU0NDliMzYy
8. Dryad. (2011). Why Dryad uses CC0. Retrieved 8-12-2011 from http://blog.datadryad.org/2011/10/05/why-does-dryad-use-cc0/
9. Knowlegde Exchange. (2011). Full report: The legal status of research data in the four partner countries. Retrieved 8-12-2011 from http://knowledge-exchange.info/Default.aspx?ID=461
10. SURFshare. (2011). Data in publiek-private projecten: Juridische aspecten. Retrieved 8-12-2011 from http://www.cier.nl/wp-content/uploads/2011/10/DIPPP-Juridische-aspecten_def-1.pdf
11. Personal Data Protection Chamber. Guide for personal data processors. Personal Data Protection Act. Retrieved 8-12-2011 from http://www.utwente.nl/igs/DataLab/Documents/Guide%20to%20personal%20data%20protection.pdf
12. Overheid.nl. (2011). Wet bescherming persoonsgegevens. Retrieved 8-12-2011 from http://wetten.overheid.nl/BWBR0011468/geldigheidsdatum_08-12-2011
13. VSNU. (2005). Gedragscode voor gebruik van persoonsgegevens in wetenschappelijk onderzoek. Retrieved 8-12-2011 from http://www.vsnu.nl/Media-item/Gedragscode-voor-gebruik-van-persoonsgegevens-in-wetenschappelijk-onderzoek.htm

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