Open Research Data
Jakub Míšek
Institute of Law and Technology
Faculty of Law
Data and Information
• Data v. Information
• Many theories:
• Claude Shanon: Information as a way to lower entropy
• Luciano Floridi: Information consists of structured data
• Michael Keeble Buckland: Information
BUCKLAND, Michael Keeble. Information as a Thing. Journal of the American Society for Information Science and Technology. 1991, Vol. 42, No. 5
• Information as knowledge: Knowledge (Intangible, Entity)
• Information as process: Becoming informed (Intangible, Process)
• Information as thing: Data, document (Tangible, Entity)
• Information processing: Data processing (Tangible, Process)
ADRIAANS, Pieter. Information. In: ZALTA, Edward N. (ed.). The Stanford Encyclopedia of Philosophy [online]. Stanford: Metaphysics Research Lab, Stanford University, 2013. Online:
https://plato.stanford.edu/entries/information/
Law and Information
• Presumption: The centrality of a human
• Information rights - 3 basic rights
• Obtain information
• To get the information from outside
• To have information
• Have control over information
• Process information
• Create, share and communicate information
• Regulation of Information
• Duties correlating to these rights
• Regulation of the environment
Data as a Commodity
• What is “Data” in the light of Law?
• Is it a thing?
• Data ownership?
Rights to data
• Fragmented legislation
• There is no one simple framework
• Database rights
• Regulation of the handling of selected types of data
• Secured information (intelligence services)
• Regulation on free movement of data within the EU
• Trade secrets
• Personal data
• …
Database Protection
Database protection
• Directive 96/9/EC
• Database = collection of independent works, data
or other materials arranged in a systematic or
methodical way and individually accessible by
electronic or other means
• CJEU: C-490/14 - Verlag Esterbauer
• A topographic map is a database
• Information value of individual elements
Database protection
• Ratio: 96/9/EC:
• (5)...copyright remains an appropriate form of
exclusive right for database authors;
• (6)...in the absence of harmonised unfair
competition legislation or case law, further
measures should be taken to prevent the
unauthorised exploitation and/or exploitation of
database content;
=> Dual protection of databases
• Copyright protection
• Sui generis database rights
Database copyright protection
• Databases which, by reason of the selection or
arrangement of their contents, constitute the
author's own intellectual creation
• Protection of the structure of the database
• Rights:
• Reproduction, translation, adaptation, arrangement and
any other alteration, distribution to the public,
communication to the public
• Generally analogous to the copyright protection
Database sui generis protection
• Protection of the investment in the database
• The content, but not specifically
• Rights:
• Prevent extraction and re-utilization of the whole or of a substantial
part, evaluated qualitatively or quantitatively, of the contents of that
database
• Extraction = permanent or temporary transfer of all or a substantial part of
the contents of a database to another medium by any means or in any
form
• Re-utilization = making available to the public all or a substantial part of the
contents of a database
• No moral / property rights difference
Database sui generis protection
• When?
• database which shows that there has been qualitatively and/or quantitatively
a substantial investment in either the obtaining, verification or presentation
of the contents
• Maker of the database – the one who invests and initiates creation of
the DB
Database sui generis protection
• Even from a copy of the database (C-203/02 - The British Horseracing
Board)
• 15 years; + new running of the period in the event of a new substantial
contribution consisting of additions or other modifications
• No personality rights
• Transfer is possible
• According to recent CJEU case law, activities of extraction and re-utilization
of the content of a database by someone other than the maker must be
assessed as "causing prejudice to his contribution to the obtaining,
verification or presentation of the contents, i.e. as constituting a risk to the
recovery of the cost of that contribution by the normal exploitation of the
database concerned"
• CV-Online Latvia (C-762/19) (3.6.2021)
Database sui generis protection
• Limitations:
• Lawful user of publicly available database may:
• Extract & re-utilise insubstantial parts of contents, evaluated qualitatively and/or
quantitatively, for any purposes
• Exceptions (non-compulsory)
• Extract for private purposes from non-electronic databases
• Education exception
• Public security
• Administrative or judicial procedure
TDM – a new exception
• DSM Directive (EU 2019/790)
• Exceptions apply to both copyright and sui generis database right
• Exceptions are mandatory
• Art 3 – TDM exception for the purposes of scientific research
• Narrow application:
“reproductions and extractions made by research organisations and cultural heritage
institutions in order to carry out, for the purposes of scientific research, text and data
mining of works or other subject matter to which they have lawful access.”
• Narrowing: possibility of “measures to ensure the security and integrity of the networks and
databases”
• The exception applies only to reproduction and extraction rights
TDM – a new exception
• DSM Directive (EU 2019/790)
• Art 4 – General TDM exception
• Any purpose, any person
• Lawful access to the content is necessary
• Problem No. 1: Reproductions and extractions may be retained only for
as long as is necessary for the purposes of text and data mining
• Future analyses? Validation? Repeatability?
• Problem No. 2: Right holders can exclude TDM
• Para. 3: “The exception or limitation provided for in paragraph 1 shall apply on condition that the use of works and
other subject matter referred to in that paragraph has not been expressly reserved by their rightholders in an
appropriate manner, such as machine-readable means in the case of content made publicly available online.”
• Better than before, but still insufficient
Is data protected?
IP data protection
• Indirect protection thanks to the database protection
• Database copyright – Structure
• Sui generis database right – content / investment
• Data as such – not protected
• CJEU Ryanair Case, C-30/14
Data as a Commodity
• What is “Data” in the light of Law?
• Is it a thing?
• Data ownership?
• Generally no – Data itself not protected
• What about “my data”?
• “Whose data is that?”
• Other means of protection come into play – Database protection or technical means of
data holding
• But! Provision as service?
• CJEU Ryanair Decision
Public Sector Information (PSI) & Open Data
Public Sector Information (PSI) & Open Data
• A more general scope
• Public sector – a vast amount of data
• Examples:
• Statistics
• Geospatial data
• Meteorology data
• Legal data
• Transportation data
• Data from research
• …
PSI
• Access to data
• Fundamental political right
• Principle of publicity
• Exercise of public authority
• Reuse of data
• Economic aspect
• Economic reasoning – we have already paid once for the data
• Accent in private law
• Open data - high efficiency
Right to access the information
• Basic principles of the right to information
• Every person has the right to receive information held by government
authorities
• The applicant for information shall not be obliged to prove the reasons for his
request
• Access to information should be applied on an equal footing
• The information should be provided within a reasonable time
• The public authority must give reasons for the rejection of information
• Rejection of the application must be reviewable.
Reuse of information
• Main focus of European PSI legislation
• Guidelines for improving the synergy between the public and the
private sectors in the information market (1989)
• “Public organizations should, as far as is practicable and when access is not
restricted for the protection of legitimate public or private interests, allow
these basic information materials to be' used by the private sector and
exploited by the information industry through electronic information
services.”
• Directive 2003/98/EC of the European Parliament and of the Council
of 17 November 2003 on the re-use of public sector information
• Amended by Directive 2013/37/EU
• Goal: Economical effectivity
Directive 2003/98/EC as amended by
directive 2013/37/EU
• Does not create an obligation to provide information
• General principle - where information is provided, this should be
done in such a way as to be reusable as easily as possible
• Stipulates quite technical provisions
• Machine-readable format
• Open format
• Formal open standard
Directive (EU) 2019/1024 of the European Parliament and of
the Council of 20 June 2019 on open data and the re-use of
public sector information
• Recast of the directive 2003/98/EC, implementation until 7/2021
• Heavier accent on ensuring the possibility of reuse
• 3 main novelties:
1. Applies to Public undertakings
2. High Values Datasets
3. Applies to research data
Regulation (EU) 2022/868 on European data
governance (Data Governance Act)
• Part II – Re-use of:
• Personal data
• Statistical data
• Intellectual property
• Trade secrets
• It does not impose an obligation to provide - it merely sets out the
basic qualitative, formal and institutional framework
• Regulated access to data
PSI v. Other Rights
PSI v. IP Rights
• Possible means of protection
• Copyright protection of content
• Copyright protection of database
• Sui generis database rights
• Possible solutions
• In some jurisdictions – exception of official (administrative) work
• Otherwise licensing
• Best solution – Public licences
• Property based
• Building on Copyright
• Mind change – enforcing openness and freedom, not exclusivity
“In all cases, the Commission encourages
authors to retain their copyright and grant
adequate licences to publishers. Creative
Commons offers useful licensing solutions. This
type of licence is a good legal tool for providing
open access in its broadest sense.”
- Guidelines to the Rules on Open Access to Scientific Publications and Open Access to
Research Data in Horizon 2020, p. 8
Public licences
•Open Content Definition “5R”:
•Retain
•Reuse
•Revise
•Remix
•Redistribute
Public licences – examples
• Creative commons (Attribution, Share Alike, Zero)
• Open Publication License
• Against DRM license
• GNU Free Documentation License
• Open Game License
• Free Art License
• Open Database Licenses (ODbL)
CC 4.0 Licenses
• CC BY
• Attribution
• The most open
• CC BY-SA
• Attribution,
ShareAlike
• CC BY-ND
• Attribution,
NoDerivs
• CC BY-NC
• Attribution,
NonCommercial
• CC BY-NC-SA
• Attribution,
NonCommercial,
ShareAlike
• CC BY-NC- ND
• Attribution,
NonCommercial,
NoDerivs
Public Licenses
CC0 1.0 Universal
• Applicable on:
• Copyright protected work
• the right to reproduce, adapt, distribute, perform, display,
communicate, and translate;
• moral rights retained by the original authors;
• publicity and privacy rights pertaining to a person's image or
likeness depicted in a Work;
• rights protecting the extraction, dissemination, use and reuse
of data in a Work;
• database rights;
• Etc.
• A waiver – after publishing under CC0 the work
becomes public domain
• Link: https://creativecommons.org/publicdomain/zero/1.0/legalcode
CC0 1.0 Universal
• A problem: Some jurisdictions do not
allow to waive the rights
• e.g. in Czechia copyright can be only
licensed but Sui generis database right can
be waived
• Solution:
• Public Licence Fallback
Don’t forget!
Nemo plus iuris ad alium transferre potest
quam ipse habet.
No one can transfer more rights (to another)
than he himself has.
PSI v. Personal Data Protection
• It there is personal data, the protection framework applies
• Both on provider and re-user
• Regulation 2016/679 (GDPR)
• Art. 4 (1):
• ‘personal data’ means any information relating to an identified or identifiable natural
person (‘data subject’); an identifiable natural person is one who can be identified,
directly or indirectly, in particular by reference to an identifier such as a name
• Necessary legal grounds to process data
• Consent
• Legal duty
• Legitimate interest
Practically during your research
• If you need to deal with IP – contact Technology Transfer Office
through your faculty
• If you need to deal with personal data – contact university Data
Protection Officer (and her team)
Open Data
Open Data
• An efficient way of PSI publication
• We are not concerned on “what” is provided, but “how”
• Rufus Pollock (founder of Open Knowledge Foundation):
• “The best thing to do with your data will be thought of by someone else.”
• The Open Definition:
• “Open means anyone can freely access, use, modify, and share for any
purpose (subject, at most, to requirements that preserve provenance and
openness).”
• “Open data and content can be freely used, modified, and shared by anyone
for any purpose”
• https://opendefinition.org/
General conditions on Open Data
• Data must be:
• Complete
• Easily accessible (online)
• Machine readable
• Using open standards
• No (minimal) legal restrictions for reuse
• Available to users at the minimum possible cost
• Tim Berners-Lee
• http://5stardata.info/en/
Five steps of openness
Research Data and Open Research Data
Research Data
• Data coming from research in a digital form
• Facts or numbers
• Basis for reasoning, discussion or calculation
• E.g.:
• Statistics
• Results of experiments
• Measurements
• Observations resulting from fieldwork
• Survey results
• Interview recordings
• Images
Open Research Data
• Research data published as open data
• Reasons:
• Public funding
• Validation of results
• Possible reuse
Open Research Data - H2020
• H2020 beneficiaries should make their research data findable, accessible,
interoperable and reusable (FAIR)
• Art. 29 of the H2020 Model Grant Agreement
• Obligation to disseminate results
• (3) Research Data
• Make possible to for third parties to:
• Access
• Mine
• Exploit
• Reproduce
• Disseminate
• Possibility to opt-out
• during the application phase
• during the grant agreement preparation (GAP) phase and
• after the signature of the grant agreement.
Open Research Data - H2020
• Data Management Plan
• should include information on:
• the handling of research data during & after the end of the
project
• what data will be collected, processed and/or generated
• which methodology & standards will be applied
• whether data will be shared/made open access and
• how data will be curated & preserved (including after the
end of the project).
• More info: https://ec.europa.eu/research/participants/docs/h2020-funding-guide/cross-cutting-issues/open-
access-data-management/data-management_en.htm
Open Research Data - Open Data Directive (2019/1024)
• Rec. 27:
• … Research data includes statistics, results of experiments, measurements,
observations resulting from fieldwork, survey results, interview recordings and
images. It also includes meta-data, specifications and other digital objects. Research
data is different from scientific articles reporting and commenting on findings
resulting from their scientific research. For many years, the open availability and reusability
of scientific research data stemming from public funding has been subject
to specific policy initiatives. Open access is understood as the practice of providing
online access to research outputs free of charge for the end user and without
restrictions on use and re-use beyond the possibility to require acknowledgement of
authorship. Open access policies aim in particular to provide researchers and the
public at large with access to research data as early as possible in the dissemination
process and to facilitate its use and re-use. …
Open Research Data - Open Data Directive (2019/1024)
• Rec. 28:
• For the reasons explained above, it is appropriate to set an obligation on Member
States to adopt open access policies with respect to publicly funded research data
and ensure that such policies are implemented by all research performing
organisations and research funding organisations. … Open access policies typically
allow for a range of exceptions from making scientific research results openly
available. … Additionally, the conditions, under which certain research data can be
re-used, should be improved. For that reason, certain obligations stemming from this
Directive should be extended to research data resulting from scientific research
activities subsidised by public funding or co-funded by public and private-sector
entities. Under the national open access policies, publicly funded research data
should be made oHowever, in this context, concerns in relation to privacy, protection
of personal data, confidentiality, national pen as the default option. security,
legitimate commercial interests, such as trade secrets, and to intellectual property
rights of third parties should be duly taken into account, according to the principle
‘as open as possible, as closed as necessary’.
Open Research Data - Open Data Directive (2019/1024)
• Art. 10
• Member States shall support the availability of research data by adopting
national policies and relevant actions aiming at making publicly funded
research data openly available (‘open access policies’), following the principle
of ‘open by default’ and compatible with the FAIR principles. In that context,
concerns relating to intellectual property rights, personal data protection and
confidentiality, security and legitimate commercial interests, shall be taken
into account in accordance with the principle of ‘as open as possible, as
closed as necessary’. Those open access policies shall be addressed to
research performing organisations and research funding organisations.
Open Research Data – Czech implementation
• Act No. 130/2002 Sb.
• Data management plan and a provision on data accessibility are
included in the grant agreement
• Practically, quite often, research infrastructures
• Providing information about research data
• Possible exceptions
• Providing research data after a request
• Once the funding is over (+12 months)
• Possible exceptions
Providing open access to research data
•If content of the database is protected by
copyright
•Publish it under a public licence (CC-BY or CC-BY-SA
preferably)
Providing open access to research data
• If the database is protected by copyright
• Publish it under a public licence (CC-BY or CC-BY-SA
preferably)
Providing open access to research data
• If the database is protected by Sui generis database
right and you:
a) Wish attribution
• Publish it under a public licence (CC-BY or CC-BY-SA preferably)
b) Want to open it as much as possible
• Wave the rights by CC0
Providing open access to research data
•It can combine
•Copyright protection of content & Sui generis right
•Copyright protection of content & Copyright
protection of Database
•Copyright protection of Database & Sui generis
right
•All three of them
•None of them
Providing open access to research data
• If the database is not protected either by Copyright or
Sui generis database right:
• State it
• It is not a licence – there is nothing to license
• Possibility to provide content under contract
Thank you for your attention.
Questions?
jakub.misek@law.muni.cz