ownership, intellectual property, and governance considerations for academic research data

Ownership, intellectual property, and governance

considerations for academic research data

Rebekah CummingsResearch Data Management Librarian, University of Utah

DataFOUR Professional Development Webinar SeriesSeptember 25, 2015

Summer 2012

Data Management Rollout Survey

JISC Data Management Rollout Project Survey Results- 2012- http://damaro.oucs.ox.ac.uk/outputs.xml

Does your institution have clear policies on data

ownership?

Do you know what those policies are?

Objectives1. Frame some of the complications around

data ownership and intellectual property2. Tell you about what I have discovered

about data ownership at my own institution

3. Share the results of my environmental scan about data ownership at other institutions

Two Caveats1. I am a librarian, not a lawyer2. There are very few absolutes

Photos: National Archives, Hathi TrustSlide adapted with permission from Amy Rudersdorf and Franky

Abbott, DPLA

Intellectual Property“Any product of the human intellect that the law protects from unauthorized use by others.”

-Cornell University Law School Legal Information Institute

Intellectual Property• Copyright (Literary and artistic works)

• Patents (Inventions)

• Trademarks (Symbols, names, and images used in commerce)

Patented January 11, 1995Michael Boehm and Robert Johnson

Patent #5606905Twoallbeefpattiesspecialsaucelettucecheesepicklesonionsonasesameseedbu

n

Copyright• “Copyright” refers to reproduction or publication restrictions on an item – it’s copyright status according to U.S. law.

• A form of protection for authors that applies to original works of authorship that are “fixed in a tangible medium.”

• Copyright is automatic.

• The right to reproduce the copyrighted work• The right to create derivative works• The right to distribute copies of the work• The right to perform the copyrighted work

publicly• The right to display the copyrighted work

publicly

Flickr Commons:

Copyright = A bundle of rights

Portal to Texas History

Academic research data“The recorded factual material commonly accepted in the research community as necessary to validate research findings.” – U.S. OMB, Circular A-110

Data are diverse

Academic Research Data

Govn’t Data

Academic

Research Data

Proprietary

Data

More Open

Less Open

Why do we care about data ownership?

ReproducibilityResponsibility

Data Management Plans

Complication #1- Stakeholders

Researchers

Universities

Funding Agencies

The Public

http://ph.ucla.edu/news/magazine/2012/november/article/30-new-operating-system-public-health

Ownership of Data – 2012 Survey

Table from “Research Data Stewardship at UNC,” 2012

Complication #2 – Data and IP

“The discoverer of a scientific fact as to the nature of the physical world, an historical fact, a contemporary news event, or any

other ‘fact’ may not claim to be the ‘author’ of that fact. If anyone may claim authorship of facts, it must be the Supreme Author of us

all. The discoverer merely finds and records.”

Melville Nimmer, 1963

Case Law• Baker v. Seldon (1879) – documents

must contain a significant amount of originality to qualify for copyright.

• Feist v. Rural (1991) – phone books and other compilations of facts are not eligible for copyright; lack originality.

• Miller v. Universal Studios, Inc. (1981) – Aggregated research is not eligible for copyright.

However…• If data are selected, arranged, and

coordinated in an original way, they may be eligible for copyright (17 U.S.C. §101. Definitions)

• “Data” often includes materials that are highly original

• Data laws are not harmonized worldwide (Reichman & Uhlir, 2003)

Complication #3 - Terminology

• Data ownership• Data

governance• Data

stewardship

University Policy“The University of Utah retains ownership and stewardship of the scientific data and records for projects conducted at the University or that use University of Utah personnel or resources.”

- Research Handbook, Section 9.9

University Policy (cont.) “Except where precluded by the specific terms of a sponsored agreement, tangible research property, including the scientific data and other records of research conducted by the faculty or staff of the University, belongs to the University.”

- Research Handbook, Section 9.9

But what about IP?University IP includes “the tangible and intangible results of research (including for example data, lab notebooks, charts, etc.)”

- Employee Intellectual Property Assignment Agreement

Copyright of Faculty Members

Faculty members retain copyright over their “traditional scholarly products” but that term is narrowly defined and would have to be evaluated on a case-by-case basis.

http://witnessla.com/lasd/2012/admin/the-undersheriff-the-gray-by-matthew-fleischer/

Intellectual Property - Patents

At the U, if you plan on commercializing your data, you must speak with TVC (Technology, Venture, and Commercial).

Data Responsibility“The P.I. is responsible for the collection, management, maintenance, and retention of research data accumulated under a research project. The University must retain research data in sufficient detail and for an adequate period of time to enable appropriate responses to questions about accuracy, authenticity, privacy, and compliance with laws and regulations governing the conduct of research. It is the P.I.s responsibility to determine what records need to be retained to comply with sponsor requirements.”

Research Handbook, 9.9.2

Data Responsibility (cont.) “Research data must be archived for a minimum of three years after the final project closeout.”

“The P.I. should develop appropriate procedures for proper archiving and tracking of research data.”

Research Handbook, 9.9.4

Who owns the data at the U?

•The University•The project sponsor if they negotiated data ownership in the contract

•Another institution or commercial entity with which you are collaborating

•IF you are a faculty member and IF your data can be defined as a “traditional scholarly work,” you would retain copyright of your data

At other institutions?

• Columbia University• Cornell University• Duke University• Johns Hopkins University• NYU• UCLA

• Northwestern• University of Massachusetts• Stanford• University of Kentucky• University of Minnesota• Virginia Commonwealth University

http://ccnmtl.columbia.edu/projects/rcr/rcr_data/foundation/

Johns Hopkins

Duke University

University of Minnesota

https://www.insidehighered.com/news/2015/07/27/ucsd-wins-key-round-legal-fight-usc-over-huge-research-project

Data archivesData publishers do not usually expect to have rights over the data collections it distributes or provides access to.

Mechanisms for data sharing

• Contracts• Licenses • Waivers

Krier and Strasser, 2014

More shades of grey… Can a researcher assign a Creative Commons license to their data?

Can a researcher make their data open source without University approval?

What can librarians do? 1. Be familiar with your institution’s policies2. Educate your researchers about the

ownership issues surrounding their data3. Encourage waivers and unrestrictive

licenses to encourage open sharing of data

4. Become part of the conversation on your campus and in the library community around data ownership

Thank you! Questions?Ask now!

(801) 581-7701

rebekah.cummings@utah.edu@RebekahCummings