IPR policy recommendations for the on-boarded services

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Introduction

Digitalization and advancement of the IT technologies in the last 30 years as well as the appearance of The World Wide Web (the Internet) have had unprecedented impact on scientific practices and the way science is performed in modern society. Based on these developments, a new research paradigm was established, called ‘the fourth paradigm: data-intensive scientific discovery’ where ‘all of the science literature is online, all of the science data is online, and they interoperate with each other’ (Hey et al, 2009 in Tenopir et al, 2011, p. 1).

One of the main characteristics of these changes has been the Open Science (OS) movement and practices. The goal of this movement is to make the scientific outputs available for further use by other users then their original creators and the public in general, in order to advance human knowledge and lead to new scientific achievements. This is especially relevant with regard to the scientific outputs of research projects funded by public funds. What is especially important is that the Open Science initiative does not only applies to publications, but also to datasets, codes, software, coding schemes, research instruments and any other outputs of research projects, regardless for what purpose, and in which phase of the project’s life cycle these outputs were created.

Since 2015 the European Commission (EC) decisively put in place a clear strategy towards the support of the Open Science paradigm. EC developed important policies in line with the abovementioned goals of OS- to make as much of the available knowledge as open as possible. Changes in the legislation were made and some are currently ongoing. Among the main undertakings was the establishment of the European open science cloud (EOSC), a federated research infrastructure which unites research outputs from various European and national level research infrastructure organizations and projects. One of the most important step was the decision to make all scientific products of the European research programme Horizon 2020 (and the subsequent ones) fully open for the public.

At the same time, concerns about the implementation of the intellectual property rights (IPR) in these new conditions were raised by the producers of knowledge and especially by the companies that were the usual profiters of distribution of knowledge via publishing activities. This produced a task to reconsider the IPR in the digital age. There was a need for a new balance between the economic rights of authors (to copy, alter, distribute or communicate to the public), and the obligations regarding patents and trade secrets within the new ecosystem of science, based on ITC and Internet.

A number of international organizations have stressed the need of balanced approach between OS and IPR. While OS is supported by the human right to science, the IPR is concerned with the protection of the rights of the authors of scientific works. In this sense it is worth to mention the (1) Copyright Treaty (1996) of the World Intellectual Property Organization, where the “balance between the right of authors and the larger public interest, particularly in education, research and access to information” is stressed. Three years later, (2) United Nations Educational, Scientific and Cultural Organization in its Declaration on Science and the Use of Scientific Knowledge wrote about the need: “to consider the scope, extent of application of intellectual property rights to the equitable production, distribution and use of knowledge” (World Science Forum, 1999).

At the EU level, a need to address this relationship is also stressed by the European Commission in different documents, like: (1) Open Innovation, Open Science, Open to the World: A vision for Europe - 2016; (2) European cloud initiative – Building a competitive data and knowledge economy in Europe – 2016; (3) European cloud initiative – Building a competitive data and knowledge economy in Europe - 2019; (4) Valorisation policies – Making research results work for society – 2020; (5) Maximising the accessibility of research results in the fight against COVID-19 – 2020; but also in the activities and documents of Directorate-General for Research and Innovation (1) Science, Research and Innovation Performance of the EU: A contribution to the open innovation, open science, open to the world agenda – 2016; (2) Science, research and innovation performance of the EU, 2020: A fair, green and digital Europe – 2020; or in ALLEA (ALL European Academies) (1) The European Code of Conduct for Research Integrity, revised edition - 2017; (2) Towards implementing the European Open Science Cloud – IPR and other strategic considerations; and also in the case of EARTO (European Association of Research and Technology Organisations) (1) Towards a Balanced Approach Between IPRs and Open Science Policy- 2020.

This overview has an aim to identify the basic elements of this new horizon especially within the frame “as open as possible, as closed as necessary”, and with a special focus on data. The overview is based on the report of the European Commission, Directorate-General for Research and Innovation, titled: Open science and intellectual property rights: How can they better interact?: state of the art and reflections- 2022, authored by Javier de la Cueva and Eva Méndez. Based on this work and other resources, some recommendations to the members of the NI4OS will be produced.

Open Science and FAIR data

Open science is one of the main characteristics of the way modern science is performed today and is closely related to the understanding of the role of science and knowledge in general in the modern society. According to de la Cueva and Méndez, who examine this change from a perspective of the basic role of science in society: “when we talk about open science we are talking about open knowledge from a global perspective; ‘open science’ is the brand, but its not restricted to the sciences; it influences all disciplines and the different ways to share knowledge created by both researchers and the public.” (de la Cueva and Méndez 2022, p.24).

At the international level, OS is defined and addressed also in core documents by the UNESCO and OECD. In the First draft of the UNESCO Recommendation on Open Science: “The term ‘Open Science’ refers to an umbrella concept that combines various movements and practices aiming to make scientific knowledge, methods, data and evidence freely available and accessible for everyone, increase scientific collaborations and sharing of information for the benefits of science and society, and open the process of scientific knowledge creation and circulation to societal actors beyond the institutionalized scientific community.”(UNESCO, 2021). UNESCO’s approach to OS is one of a broad concept encompassing the following key elements: open access, open data, open source/softwаre and open hardware, open science infrastructures, open evaluation, open educational resources, open engagement of societal actors and openness to diversity of knowledge.”

The open access element itself is broadly defined as one which: “… generally involves users being able to gain full and immediate access to and unrestricted use of scientific outputs including scientific publications, data, software, source code and protocols, produced in all parts of the world, free of charge to the user and re-usable” (UNESCO, 2021).

Starting form 2015, the European Commission has also provided relevant documents and legislation related to the concept of open science and its implementation. The report of de la Cueva and Méndez (2022, p. 28-32) lists 8 components of OS and compares the EU approach to the other approaches. Having in mind the European needs, the components are divided in two groups- results related components, and actor related components (and challenges). In the first group, they list: the future of scholarly publishing and scholarly communication; FAIR data principles (explained in more detail below); the EOSC and the next generation metrics that takes into account the new reality of OS. The second group, the actor-components, include the new way of evaluation of research careers that take into account OS; the skills that researchers need to apply OS principles in their work; code of ethics and research integrity that take into account OS principles; and the recognition of citizens as producers of knowledge.

FAIR data

Access to publications have been the most prominently discussed aspect of open science, but in the last decade open access to other scientific outputs has increasingly been in the focus. This is especially the case with data. The concept of FAIR data (Findable, Accessible, Interoperable and Reusable data) was introduced to enable better access and reusability of data, in accordance with the principle of OS. GO FAIR initiative stresses that these principles “emphasise machine-actionability (i.e., the capacity of computational systems to find, access, interoperate, and reuse data with none or minimal human intervention) because humans increasingly rely on computational support to deal with data as a result of the increase in volume, complexity, and creation speed of data.” (GO FAIR initiative, 2016).

FAIR principles are elaborated by the Three-point FAIRification framework (GO FAIR initiative, 2016). They should be applied to any kind of data and used by the providers of data. The main principles are defined by GO FAIR as follows, and include several subprinciples or recommendations:

Findable

Metadata and data should be easy to find for both humans and computers. In order to achieve that:

F1. (Meta)data are assigned a globally unique and persistent identifier;

F2. Data are described with rich metadata (defined by R1 below);

F3. Metadata clearly and explicitly include the identifier of the data they describe;

F4. (Meta)data are registered or indexed in a searchable resource.

Accessible


Once data are found, the user should know how they can be accessed, possibly including authentication and authorisation.

A1. (Meta)data are retrievable by their identifier using a standardised communications protocol;

A1.1 The protocol is open, free, and universally implementable;

A1.2 The protocol allows for an authentication and authorisation procedure, where necessary;

A2. Metadata are accessible, even when the data are no longer available.

Interoperable


The data usually need to be integrated with other data. In addition, the data need to interoperate with applications or workflows for analysis, storage, and processing.

I1. (Meta)data use a formal, accessible, shared, and broadly applicable language for knowledge representation;

I2. (Meta)data use vocabularies that follow FAIR principles;

I3. (Meta)data include qualified references to other (meta)data.

Reusable

The ultimate goal of FAIR is to optimise the reuse of data. To achieve this, metadata and data should be well-described so that they can be replicated and/or combined in different settings.

R1. (Meta)data are richly described with a plurality of accurate and relevant attributes;

R1.1. (Meta)data are released with a clear and accessible data usage license;

R1.2. (Meta)data are associated with detailed provenance;

R1.3. (Meta)data meet domain-relevant community standards.

Research infrastructures play a pivotal role in the OS movement and the system to support OS that is currently being built at the EU level. They are the points that scientists who create scientific works/outputs use in order to provide these goods to the users and the public. At the same time, they are the places where users search for these outputs. In the last several years, the EC’s focus have been clearly on strengthening the capacities of the infrastructures to provide these services to the researchers and society. The implementation of FAIR principles in the basis for that.

Intellectual property rights

Intellectual property rights (IPR) have been increasingly discussed with the emergence of the open science movement and the IT transformation in the modern society. The discussion have not always been constructive and certainly produces large number of (difficult) questions.

It is often said that IPR is a social construction legalized at the end of the XIX century, but innovation and intellectual works are as old as humankind. Therefore, this does not necessarily mean that creativity exist only under the IPR legislation. The main question in this sense is how the IP legislation influence the ecosystem of science and innovation and what is the effect of IP legislation on social and economic development and welfare.

Usually through the history and still often now, the intellectual property regulation strictly limits the use of a product or service unless some conditions are met, like “consent from the rightsholder” or there is a “specific legal permission”. The rights are usually interpreted restrictively, they are restricted by default or as it is known, “all rights are reserved” for the rightsholder. Such regulation is “legal obstacle to the free transmission of information“ (European Commission, 2022, p.33).

IPR reached a new stage as regulated in the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), within the Uruguay Round of GATT negotiations (1986-1994). The TRIPS Agreement changed the IPR from an element that concerns the author to an element that concerns the owners. According to Sell: “TRIPS incorporates a notion of intellectual property rights as a system of exclusion and protection rather than one of diffusion and competition. It extends rights holders’ privileges and reduces their obligations” (Sell, 2004, p. 314).

Obviously, such system is focused on the commercial aspects of IPR, neglecting the production under free licences that is not part of the trade arrangements. For example, the Internet was created out of this commercial and trade context of IPR. The problem is that the same legislation regulates two opposed models (European Commission, 2022, p. 36). According to de la Cueva and Méndez, the first model prevents outside use, actually the use is possible if fares are charged. That is the model of entertainment, model for the merchants of culture … blockbuster movies,… best-selling novels, … The second model considers that the best way to protect an intellectual work is to develop ecosystems that will allow for its reproduction. The idea is not to exclude outsiders from a work or language but to disseminate it as widely as possible. This is the model of free software, of Internet protocols, of Wikipedia, … This kind of system is nothing new: it has been in existence for as long as academia. But such universal collective authorship is a serious challenge to the individualistic basis of copyright. In this case, wealth is not given to a minority by commercializing different, fragmented uses of a work; instead, wealth is generated for all via secondary means, in a general context of increased wealth. The first model protects static works or results and works within “all rights reserved”. The second model protects processes and the community involved in the creation and uses IP to protect the process and its dynamic result. The outcome of these dynamic processes (the request for comments (RFC), Wikipedia, OpenStreetMap, Linux, Apache server, etc.) would be impossible to obtain through the bureaucratic burdens posed by the ‘all rights reserved’ (European Commission, 2022, pp. 36-37).

Regardless of the model, the centre of the IP is the author and two different set of rights are entitled to the author- economic and moral rights (European Commission, 2022, p. 46). Moral rights are connected with the author and they (1) give the right to the author, even after the transfer of rights, to claim the authorship and to object any distortion, mutilation or modification to the work. This moral right protects the honour or reputation of the author. (2) This right can be maintained, even after the death of the author, until the expiry of the economic rights and also depending on the legislation of the country. Economic rights are related to the use of the work and how the work will be used is the exclusive decision of the author. Activities that define the use are known as “exclusive rights” and are: (1) reproducing or copying the work; (2) altering the work; (3) distributing; and (4) publicly communicating the work. These rights are the basis for any trade that the author can do, but they are not the only economic rights. In addition, the author may receive remuneration rights.

In the EU the IPR legislation is given in Directives where the general framework is designed and after that it is incorporated in the national laws of Member States. According to the European Commission (2022, pp. 42-44), those Directives follow the WIPO treaties and the TRIPS Agreement and encompass diverse thematic areas.

Within the concept of IPR four fields are of major importance: copyright, patents, trademarks and trade secrets.

Copyright covers the original works of authorship as soon as they are fixed in any tangible medium of expression. It is regulated on the basis of WIPO treaties, the TRIPS Agreement and the Berne Convention for the Protection of Literary and Artistic Works. Elements that are regulated are: “the possible limitations, the criteria of eligibility for protection, the rights guaranteed, the possible restriction of protection, the moral rights, the term of protection, the right of translation, the right of reproduction, certain free uses of works, rights in dramatic and musical works, broadcasting, rights in literary works, right of adaptation, arrangement or other alteration, cinematographic and related rights, droit de suite, right to enforce the protected rights, seizure of infringing copies, control of circulation of works and expiry of protection” (European Commission, 2022, p. 42). These regulations have been updated to adapt to the Internet, computer programmes and compilation of data.

When it comes to research projects, copyrighted output could include spreadsheets (and other forms of originally selected and organised data), publications, reports and computer programs. Copyright will not cover the underlying facts, ideas or concepts, but only the particular way in which they have been expressed. The right will lie with the author of the work, or with their relevant institution—different universities will have different policies on intellectual property (CESSDA, 2020, p.140).

In order to guarantee the interoperability of data the validity of the consent of the right holder should be checked or whether an exception/limitation applies (European Commission, 2022, p.8).

Patents relate to the invention of a process or a product. According to WIPO definition “it is a document issued upon application by a government office (or a regional office acting for several countries), which describes an invention and creates a legal situation in which the patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent. A patent gives the owner of the patented invention the right to “exclude others from commercially exploiting his invention”.

According to the European Patent Convention, article 52: (2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; (d) presentations of information.

Trademarks refer to a symbol used in commerce to identify the original producer of goods or services so as to distinguish them from other products in the market. Hence the trademark is only the informational reference to an object and cannot influence the reproducibility or transmissibility and affects only the public perception of the objects (European Commission, 2022, p. 58).

Trade secrets consist of information that is valuable because it is not generally known and their nature can be very different. They may be of a personal, commercial or industrial nature, or concern the state and its administration. Obviously, due to the secrete nature the trade secrets are incompatible with OS.

Having in mind the elements of IPR, especially the copyright, the work that is subject to copyright can be used (reproduce, alter, communicate and/or distribute to the public) on the basis of the consent from the author or the right holder, or on the basis of utilisation of a limitation. In the first scenario the author announces that the uses of the work is permissible, actually the author publicly announces the use by applying a free licence to the respective work; and in the second scenario there is a somewhat limited possibility to expand the copyright exceptions based on the use in research or for scientific purposes.

According to the European Commission, (2022, p. 51), with the aim to resolve this problem the Open Access movement in its first Declaration from Budapest – 2002, Budapest Open Access Initiative (BOAI) – stressed:

“An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge. The new technology is the Internet. The public good they make possible is the worldwide electronic distribution of the peer-reviewed journal literature and completely free and unrestricted access to it by all scientists, scholars, teachers, students, and other curious minds. Removing access barriers to this literature will accelerate research, enrich education, share the learning of the rich with the poor and the poor with the rich, make this literature as useful as it can be, and lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge.”

The task was to remove different barriers, like financial, legal or technical. The OS movement and the work of big number of scientists produced a solid theory and practice for self-archiving and Open Access journals. As de la Cueva and Méndez argue, the work of Elinor Ostrom, Charlotte Hess, James Boyle, Roberto Mangabeira Unger and many others, analyse the rights that can be included in digital IPR. One of their conclusions is that the IP ownership is not relevant for the digital age (European Commission, 2022). The essence is in the possibilities attached to the possession of or access to digital information. For that fragmentary, conditional, or temporary property rights, resulting from the disaggregation of unified property are needed. Such conclusion share the same view that “ownership” can be connected to tangible properties, but data and information are connected to intangible rights.

The relationship between OS and IPR

The extensive analysis of de la Cueva and Méndez, notices that not a lot of research and publication have been done on the topic of the relationship between open science and intellectual property rights prior to 2017. In that year the Joint Research Centre of the European Commission and DG Research and innovation co-organized a workshop titled ‘IPR, Technology Transfer and Open Science: Challenges and opportunities’ (European Commission, 2022, p. 17).

According to the European Commission’s (2022) report , three starting hypothesis should be adopted when analysing IPR and OS in Europe:

  • There are no incompatibilities between IPR and OS. ‘On the contrary the IPR framework, if correctly defined from the onset, becomes an essential tool to regulate OS’ (Barbarossa et al., 2017, p. 2 in European Commission, 2022, 17).
  • The European Commission has a role in promoting OS and its balance with IPR. This was especially important when copyright was redefined in Europe and the EOSC was being established.
  • Existing best practices have to be a source of inspiration. For example, understanding how public research-performing organisations and industrial partnerships are striking a balance between IPR and open knowledge.

The better interaction between the OS and IPR can be analysed and consequently improve focusing on three fields of OS: on Open Access to publications; on data management; and on free software.

Since the Budapest Declaration, the OA to publications has been a kind of flagship of transformation to OS. The Regulation (EU) 2019/790 on OA and preservation of scientific information produces a clear regulation with the result that: all scientific publications that are publicly-funded will be available in open access as from 2020. Also, other newer strategies connected with OA try to secure the necessary IPR to the researchers, allowing the possibility of licensing their works with open licences. At the same time, activities regulated by copyright are still forbidden by default and the hostile climate for knowledge transmission is still present.

From the perspective of OA, the question for the need of copyright in the research and scientific publications is inevitable. The new regulatory approach is already channelled based on EU’s digital sovereignty and through the Digital Single Markets Act, the Digital Services Act, and the Regulation (EU)2021/695 of the European Parliament and of the Council establishing Horizon Europe- the Framework Programme for Research and Innovation, defining the rules for dissemination and participation in the programme. The aim is to “to dismantle the business model over science developed by big publishers” and fully promote the goals of OS (European Commission, 2022, p. 64).

The main characteristic of the relationship between data management and IPR is that data and facts do not have protection under copyright but, databases do. According to Directive 96/9/EC of the European Parliament and the Council the ‘database’ (Article 1(2) is ‘a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’ and determines that‘ databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection’ (Article 3(1)). In the Directive, unfortunately there is another sui generis right (Article 7(1)) for the creator of the database with the aim “to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”

Such definition or protection could be useful but before the digitalisation and the today’s role of the Internet in the everyday life and especially in science. This outdated and also unreasonable protectionist approach from the Directive makes almost any access to data a kind of illegal activity or at least a treat.

The answer to this problem came from the Executive Board of EOSC. The Board insisted that: “The FAIR principles were born with research data. Today, applying FAIR principles has to be extended to the whole research lifecycle, to ensure transparency, assessment, attribution and reproducibility. For this to happen, all outcomes of science, such as data, software, other products and services, have to be FAIR.” (EOSC Executive Board, 2021, p. 70).

Having all this in mind, it is clear that when operating with data, there is an inherent risk of IPR infringement. So, when using data, users should always analyse the terms and conditions of each data set. If these are not clear or no consent has been given, then it should be treated as an ‘all rights reserved’ piece of information (European Commission, 2022, p. 71).

Defining the relationship between free software and IPR from the beginning should stress “the usual misconception” that free software is outside IP (European Commission, 2022, p. 71). On the contrary – every free work is owned by its author, but in the case of free software the authors exercise their rights in a gradient of possibilities that escape the traditional “all rights reserved” concept. However, authors still license their work. These licenses provide the opportunity for using or to modify the original design free of charge. The main difference, as it is stressed by the European Commission (2022), is that in the traditional IP concept “the work” is the final result, but in the free software IP concept the protection is not to “the work” but to the process, providing the guarantee that the process will not be stopped. The new design will be/should be licenced as the old one. So, this new concept of free or/and open software is using IPR and copyright to broaden the reuse which results in constructing and disseminating knowledge.

There are also some specific issues, used very often, which demonstrates their importance. Hence, following the detailed explanation from de la Cueva and Méndez (European Commission, 2022, pp. 76-80) it is worth to present those issues.

When the data has to be interchanged in an ICT environment, than Application programming interface (API) is most often used. API is a point in a server where a computer client connects and, after it makes a request, the server allows the client to copy data. This connection may be with or without authentication. The copied data are usually structured. It is important to know that not only data are transferred through API, but also their structure (some information that classified the data) has been already arranged. This structure of data, that is disseminated with APIs is an intellectual work regulated by IPR. With the aim to avoid any future problems, the solution is to express IPR through free licences to make it free.

Hyperlink in essence is a metadata: data that represents some other data and most important – it is not an intellectual work per se because its nature is a pure reference, like an international standard book number or car registration plate. Thus, a hyperlink is a linguistic element, a reference that represents an object different from the hyperlink. It is very important tool for data scientists when they enrich their data with metadata, to provide meaningful information to the data set in the course of applying the FAIR principles. In ICT environment it has a form “htpp: / / …”.

The problem arise from the existence of websites, like the “Pirate Bay”, whose only content were hyperlinks to files hosted in user networks connected through peer-to-peer software.

The courts in USA and Canada understand this nature and do not consider that hyperlinking is an activity that result in public communication of the work; hence, it does not constitute a copyright infringement. But, the Court of Justice of the EU had a different understanding, so linking is an activity that implies public communication of the linked object. In the same time CJEU understand that on the Internet, when the author agrees with the publication of the work and do not restrict the access to the work, actually he or she has authorised the communication of that work to all internet users.

But, still hyperlinking in EU stay in a hostile environment for the ICT data driven science and consequently for the OS. Therefore, “special care is required when ‘bringing together multiple sources of knowledge’ using hyperlinking technology to ensure the source is not protected by technological measures.” (European Commission, 2022, p. 79).

This IP problem was considered in the report “A persistent identifier (PID) policy for the European Open Science Cloud (EOSC)” (European Commission, Directorate-General for Research and Innovation and EOSC Executive Board, 2020) which concludes that: “a PID is resolvable when it allows both human and machine users “to access … a digital object, a digital representation, or information on how the object can be accessed”. PIDs are used “to support a functioning environment of FAIR research”.

At the end, it is important to be aware that in a case of hyperlinking, it is not necessary to obtain consent except in those cases where the link circumvents technological measures. Attention must be taken in hyperlinking, because, as the CJEU case-law demonstrates, it implies an inherent risk of IP infringement (European Commission, 2022).

Text and data mining (TDM) was intensively discussed within different EU institutions especially before the copyright reform was legalised in the Directive (EU) 2019/790.

TDM as a technique use different activities like: reproduction, translation, adaptation, arrangement … so it can infringe database rights. But, at the same time this technique is considered as necessary in data driven science.

The copyright Directive (EU) 2019/790 included an exception and TDM was allowed to research organisations and cultural heritage institutions in order to carry out scientific research. The European Copyright Society and the Max Planck Institute for Innovation and Competition were criticising this because the exception limits many other organisations that can and could exercise TDM, like data-driven journalist.

In this sense the Directive’s copyright exception for TDM is below UNESCO OS draft recommendation and its core values like diversity and inclusiveness. Also, the Directive is in contrast with the EU practice: a lot of EU funded projects promote other agents who produce knowledge, like citizen scientists. Hence, the Directive has to produce environment where science will be open to everybody.

IPR recommendations

For the purpose of this project, an overview is compiled to promote best practices to achieve Findability, Accessibility, and Interoperability of research data. The approach aims to achieve removal of unnecessary restrictions to reuse and open access to the outputs of scientific research.

To ensure that data are FAIR, measures should be taken through the whole Life cycle of the research project. In order to guarantee the interoperability of data the validity of the consent of the right holder should be checked or whether an exception/limitation applies (European Commission, 2022, p. 8). One important fact is that metadata should be available without restriction.

According to CESSDA’s User Guide for Data Managemant (n.d.) recommendations for researchers or any data creator or user:

  • When creating or using data you should establish who has ownership, and the restrictions that exist as to what can and cannot be done with the data. This is important, not just for archiving and re-use, as intellectual property rights could affect your ability to publish research outputs.
  • Clarify with funders, research partners, and institutions to establish who owns the intellectual property rights to data and any outputs derived from the research, especially if there is a commercial dimension to the research. In the case of non-commercial research, funders and institutions often will waive ownership rights and grant ownership to the researcher, but as with reusing data, it is important to clarify and establish ownership early.
  • The muddied international legal environment on copyright makes it beneficial for researchers to adopt a license to define and protect intellectual property rights. Even if you do not have plans to make your data available, legally you may be required by freedom of information legislation to share data in some form. Therefore, it is always advisable to adopt a license. Your institution may have a template license for research data; if not, you could adopt a Creative Commons or Open Data Commons License.
  • If you deposit your data in a data archive, you do not surrender ownership of your data. Archives do not usually seek or assert ownership of data. Instead, ownership remains with the data creator or depositor, who agrees to allow the archive to manage re-use via a license agreement. For this reason, archives can only hold data where the rights holders have given permission for archiving and reuse with established intellectual property rights pertaining to the data clarified.

Licencing of data

When publishing data and datasets in an archive or repository, a Licence agreement between the archive/repository and the depositor/the creator of the data is usually signed. This agreement regulate the further use of data by new users. Since the purpose of data archiving is their re-use, CESSDA DMEG (2020) encourages the depositors to use a licence which:

  • Makes data available to the widest audience possible;
  • Makes the widest range of uses possible.

The CESSDA Training Team (2020) recommends the use of Creative Commons (2017) licences for the licensing of data, datasets, and databases. CESSDA lists the following advantages that these licences provide to data creators (according to Korn and Oppenheim, 2011 as cited in CESSDA Training Team, 2020, p. 167):

  • The ease of use of the licences;
  • The widespread adoption of the licences;
  • Their flexibility;
  • Their availability in human-readable and machine-readable forms allowing both researchers and computers to immediately know what they are allowed to do with your data;
  • The chance that your data are reused.

Table 1 lists the CC licences according to their characteristics and possibilities they provide to the authors and users of data and datasets.

Table 1. Types of CC licences (copied from CESSDA Training Team, 2020, inspired by Foter, 2015)

<tbody> </tbody>

Licence

Can I copy &

redistribute

the work?

Is it required

to attribute

the author?

Can I use

the work

commercially?

Am I allowed

to adapt the

work?

Can I change the

licence when

redistributing?

CC0

Y

N

Y

Y

Y

CC BY

Y

Y

Y

Y

Y

CC BY-SA

Y

Y

Y

Y

N

CC BY-ND

Y

Y

Y

N

Y

CC BY-NC

Y

Y

N

Y

Y

CC BY-NC-SA

Y

Y

N

Y

N

CC BY-NC-SA

Y

Y

N

N

Y

A CC licence cannot be revoked once it has been issued (CESSDA Training Team, 2020, p.167).

According to CESSDA (2020, p. 168), CC0 is the only truly open Creative Commons licence. The copyright owner waives all its rights, including the database right and the right to be identified as the creator.

Although CC0 can be used to prevent attribution stacking, attribution can be important as a means of recognising both the source and the authority of the data. To acknowledge this right, the use of CC0 can include the publishing of non-binding suggestions for best practices in attribution.

There will be circumstances in which CC0 is inappropriate, due to specific risks that might arise for the licensor and perhaps subsequently also for any users. E.g. when:

  • Datasets containing (sensitive) personal information are deposited for which consent has not been cleared (see the chapter on protecting data);
  • Permission of the copyright holder has not been sought;
  • The rights holders are unknown or cannot be traced (orphan works).

In these cases, licences that place ‘some’ restrictions upon the user, such as those with an “ND” (No derivatives) and/or “NC” (Non-Commercial) might be more appropriate.

References

CESSDA Training Team. (n.d.). CESSDA User Guide for Data Management

<a href="https://static-archive.cessda.eu/content/download/244/2406/file/CESSDA%20User%20Guide%20for%20data%20management_7_Intellectual%20property%20rights.pdf">https://static-archive.cessda.eu/content/download/244/2406/file/CESSDA%20User%20Guide%20for%20data%20management_7_Intellectual%20property%20rights.pdf</a>

CESSDA Training Team. (2020). CESSDA Data Management Expert Guide. CESSDA ERIC.<a href="https://doi.org/10.5281/zenodo.3820473">https://doi.org/10.5281/zenodo.3820473</a>

Creative Commons. <a href="https://creativecommons.org/">https://creativecommons.org/</a>

Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. 

<a href="https://eur-lex.europa.eu/eli/dir/2019/790/oj">https://eur-lex.europa.eu/eli/dir/2019/790/oj</a>

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009">https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009</a>

EOSC Executive Board (2021), Strategic research and innovation agenda (SRIA) of the European Open Science Cloud (EOSC) <a href="https://www.eosc.eu/sites/default/files/EOSC-SRIAV1.0_15Feb2021.pdf">https://www.eosc.eu/sites/default/files/EOSC-SRIAV1.0_15Feb2021.pdf</a>

European Commission, Directorate-General for Research and Innovation (2022), Open science and intellectual property rights : How can they better interact? : state of the art and reflections, Publications Office of the European Union, <a href="https://data.europa.eu/doi/10.2777/347305">https://data.europa.eu/doi/10.2777/347305</a>

European Commission, Directorate-General for Research and Innovation and EOSC Executive Board, (2020), A persistent identifier (PID) policy for the European Open Science Cloud (EOSC), Publications Office of the European Union, <a href="https://data.europa.eu/doi/10.2777/926037">https://data.europa.eu/doi/10.2777/926037</a>

European Patent Convention, <a href="https://www.epo.org/law-practice/legal-texts/epc.html">https://www.epo.org/law-practice/legal-texts/epc.html</a>

GO FAIR Initiative. <a href="https://www.go-fair.org/">https://www.go-fair.org/</a>

Open Access movement (2002), Budapest Open Access Initiative. <a href="https://www.budapestopenaccessinitiative.org/read/">https://www.budapestopenaccessinitiative.org/read/</a>

Regulation (EU) 2021/695 of the European Parliament and of the Council of 28 April 2021 establishing Horizon Europe – the Framework Programme for Research and Innovation, laying down its rules for participation and dissemination, and repealing Regulations (EU) No 1290/2013 and (EU) No 1291/2013.<a href="https://eur-lex.europa.eu/eli/reg/2021/695/oj">https://eur-lex.europa.eu/eli/reg/2021/695/oj</a>

Sell, S. (2004), ‘Intellectual property and public policy in historical perspective: Contestation
and settlement’, Loyola Law Review, Vol. 38, No 1, pp. 267–321 (<a href="https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2452&context=llr">https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2452&context=llr</a>)

Sganga, C., Gebreyesus, N. H., van Wezel, J., Foggetti, N., Amram, D., & Drago, F. (2022). EOSC-Pillar Legal Compliance Guidelines for Researchers: a Checklist (interactive digital version). Zenodo. <a href="https://doi.org/10.5281/zenodo.6327668">https://doi.org/10.5281/zenodo.6327668</a>

Tenopir, C., Allard, S., Douglass, K., Aydinoglu, A. U., et al. (2011). Data Sharing by Scientists: Practices and Perceptions. PLoS ONE 6(6): e21101.

<a href="https://doi.org/10.1371/journal.pone.0021101">https://doi.org/10.1371/journal.pone.0021101</a>

UNESCO (2021), First draft of the UNESCO recommendation on open science,

<a href="https://unesdoc.unesco.org/ark:/48223/pf0000374837">https://unesdoc.unesco.org/ark:/48223/pf0000374837</a>

WIPO Copyright Treaty (WCT), <a href="https://www.wipo.int/treaties/en/ip/wct/">https://www.wipo.int/treaties/en/ip/wct/</a>

World Science Forum (1999) Declaration on Science and the Use of Scientific Knowledge,<a href="https://worldscienceforum.org/contents/declaration-of-the-1999-unesco-world-conference-on-science-110056">https://worldscienceforum.org/contents/declaration-of-the-1999-unesco-world-conference-on-science-110056</a> 

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