Data, data ownership and Open Science

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
www.create.ac.uk
thomas.margoni@glasgow.ac.uk

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?
thomas.margoni@glasgow.ac.ukthomas.margoni@glasgow.ac.uk

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?

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?

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?

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

Example: OpenMinTeD
OpenAIRE has 3 published guides for researchers at the moment:
● How do I know if my research data is protected?
https://www.openaire.eu/how-do-i-know-if-my-research-data-is-protected
● How do I license my research data?
https://www.openaire.eu/how-do-i-license-my-research-data
● Can I reuse someone else’s research data?
https://www.openaire.eu/can-i-reuse-someone-else-research-data
And a companion guide to help address open science issue for repositories:
● Making your repository Open
https://www.openaire.eu/making-your-repository-open
And a recent article: Licensing FAIR data for reuse
● http://eprints.gla.ac.uk/203694/
Guides

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
www.create.ac.uk

Data, data ownership and Open Science

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