Research Data Ownership Rotterdam Science Tower December 2nd, 2014 Rob Posthumus Erasmus Centre for Valorisation.

Research Data Ownership

Rotterdam Science Tower

December 2nd, 2014

Rob PosthumusErasmus Centre for Valorisation

seminar December 2 2014

Research Data Ownership: how to protect your research interests when many require access to the research data? And how to get help doing so.

Motto:

To prevent the subject of Intellectual Property Rights (IPR) becoming a barrier to:• conduct research• sharing research data• valorisation of research data• control mechanisms for the purpose of with scientific

integrity


• Lawyer, 25 years in licensing and technology transfer

• Thus, no expert on all the issues and controversies arising in this matter

• This presentation shows you how divers the issues at hand are

• This field is evolving rapidly • Disclaimer: Don’t try this at home without

calling in help…


Research data ownership: Questions• What is ‘data’: Container• Who owns or controls the data:

– Law/jurisdiction– Arrangements/agreements

• Who has access to the data• Who should have access to the data• Where are they, and what comes from that?

• Why should/do you care about all those details…

• And: You’re not alone!




Who ‘owns’ the data:• Where or how did you collect the data?• And, perhaps even more relevant to

‘ownership’, what’s inside the dataset?• Privacy• Patient rights• Third party rights


Many people volunteer to be interviewed in your research. How to correctly protect their privacy? What if a researcher from another discipline asks permission to use the data for her research? Is this allowed or should the subjects be asked for specific consent?


Sharing data that is subject to informed consent and collected in a databank feeded with data from multiple parties. How to avoid cumbersome approval processes that involve many parties?


Short answers:• The creator of knowledge/data holds intellectual property rights on those data.• Data in themselves may give rights to subjects related thereto.• The collector of a database fills that database with data. There are rights on:

• The data• The database content• The technical set up and licenses

• The precise situation will vary depending on the jurisdiction.

• No simple answers, applying to many situations, available.

No one size fits all.


‘The default case’: what does the law say when nothing is arranged? The data were collected as a part of a PhD project at a certain university, there are no confidentiality or privacy issues, no university policy. What can a PhD do with the data during the project? And after his project? Can he take the data with him? What is the ‘standard procedure’ if there is one (or should be one).


The PhD collects data as part of his/her work. Presume that substantial investment of time and effort was made: Dutch law provides 15 year.Protection on copying/duplification of the databank.There may be copyrights on (some of the) data as well.

The copyrights vest in the author (scientific exemption), thus the PhD.The databank rights vest in the maker, here the institution.

Due to obligations on reproducibility and verification in science the datasetmust be stored in such a way that its authenticity (is it what it says it is)and its integrity (the original, uncorrupted bitstream) are maintained and openfor checks from third parties and further research in the institution (Gedragscode Wetenschapsbeoefening).

The PhD retains future use of the dataset.


Open Access requirements from the institution apply.

Data management arrangements as laid down within the institutionapply: Beware of the Standard Evaluation Protocol


At present I am working within a research project. We (universities and private companies) are collecting a lot of data. My main issue as project coordinator is to be fair and to manage the data issue properly. There are conflicting interests between (university and private) partners. Right now, we have 3 research groups collecting data, they have to be part of the same database.The problems I can see are:- Who is the owner of the collected data (the research unit or all partners)?- May a partner use for his/her own purpose (not project based) the data collected by the research groups? How?This leads to the publication issues. Should all partners sign the articles (as co-authors) because they supported the data collecting activity and are belonging to the same consortium?Right now, I can see that in my consortium made up of 5 partners only two are active in writing.


Lets start with a relevant example: H2020

• A broad definition of results• A best effort obligation to exploit results• Provisions for joint ownership• Provisions for rights of third parties (including personnel)

How to get there:• Obligatory Consortium Agreement• ‘Plan for the exploitation and dissemination of the results’• Opt out options to protect results, confidentiality and security obligations









24.1 Agreement on background

• The beneficiaries must identify and agree (in writing) on the background for the action (‘agreement on background’).

• ‘Background’ means any data, know-how or information — whatever its form or nature (tangible or intangible), including any rights such as intellectual property rights — that:

• (a) is held by the beneficiaries before they acceded to the Agreement, and

• (b) is needed to implement the action or exploit the results.


25.1 Exercise of access rights — Waiving of access rights — No sub-licensing

To exercise access rights, this must first be requested in writing (‘request for access’).‘Access rights’ means rights to use results or background under the terms and conditions laid down in this Agreement.Waivers of access rights are not valid unless in writing.Unless agreed otherwise, access rights do not include the right to sub-license.


25.2 Access rights for other beneficiaries, for implementing their own tasks under the action

The beneficiaries must give each other access — on a royalty-free basis — to background needed to implement their own tasks under the action, unless the beneficiary that holds the background has — before acceding to the Agreement —:(a) informed the other beneficiaries that access to its background is subject to legal restrictions or limits, including those imposed by the rights of third parties (including personnel), or(b) agreed with the other beneficiaries that access would not be on a royalty-free basis.


26.1 Ownership by the beneficiary that generates the results

Results are owned by the beneficiary that generates them.‘Results’ means any (tangible or intangible) output of the action such as data, knowledge or information — whatever its form or nature, whether it can be protected or not — that is generated in the action, as well as any rights attached to it, including intellectual property rights.


26.2 Joint ownership by several beneficiaries

Two or more beneficiaries own results jointly if: (a) they have jointly generated them and(b) it is not possible to:(i) establish the respective contribution of each beneficiary, or(ii) (ii) separate them for the purpose of applying for, obtaining or

maintaining their protection (see Article 27).


The joint owners must agree (in writing) on the allocation and terms of exercise of their joint ownership (‘joint ownership agreement’), to ensure compliance with their obligations under this Agreement.Unless otherwise agreed in the joint ownership agreement, each joint owner may grant non- exclusive licences to third parties to exploit jointly-owned results (without any right to sub- license), if the other joint owners are given:(a) at least 45 days advance notice and(b) fair and reasonable compensation.Once the results have been generated, joint owners may agree (in writing) to apply another regime than joint ownership (such as, for instance, transfer to a single owner (see Article 30) with access rights for the others).


27.1 Obligation to protect the resultsEach beneficiary must examine the possibility of protecting its results and must adequately protect them — for an appropriate period and with appropriate territorial coverage — if:(a) the results can reasonably be expected to be commercially or industrially

exploited and(b) (b) protecting them is possible, reasonable and justified (given the

circumstances).When deciding on protection, the beneficiary must consider its own legitimate interests and the legitimate interests (especially commercial) of the other beneficiaries.


28.1 Obligation to exploit the results

Each beneficiary must — up to four years after the period set out in Article 3 — take measures aiming to ensure ‘exploitation’ of its results (either directly or indirectly, in particular through transfer or licensing; see Article 30) by:

(a) using them in further research activities (outside the action); (b) developing, creating or marketing a product or process;

(c) creating and providing a service, or

(d) using them in standardisation activities.


29.1 Obligation to disseminate results

Unless it goes against their legitimate interests, each beneficiary must — as soon as possible — ‘disseminate’ its results by disclosing them to the public by appropriate means (other than those resulting from protecting or exploiting the results), including in scientific publications (in any medium).A beneficiary that intends to disseminate its results must give advance notice to the other beneficiaries of — unless agreed otherwise — at least 45 days, together with sufficient information on the results it will disseminate. Any other beneficiary may object within — unless agreed otherwise — 30 days of receiving notification, if it can show that its legitimate interests in relation to the results or background would be significantly harmed. In such cases, the dissemination may not take place unless appropriate steps are taken to safeguard these legitimate interests.


29.2 Open access to scientific publications

Each beneficiary must ensure open access (free of charge, online access for any user) to all peer-reviewed scientific publications relating to its results.In particular, it must:(c) ensure open access — via the repository — to the bibliographic metadata that identify the deposited publication. The bibliographic metadata must be in a standard format and must include all of the following: identification EU-funding.




Research Data OwnershipStandard Publication rights-clause Erasmus MC:

#.1 Company recognizes the desire of Erasmus MC to publish details of academic results in scientific journals. Erasmus MC undertakes and agrees not to engage in any dissemination of data from and Results of the Project, without first obtaining the written consent of Company, which consent shall not be delayed and shall be given within a period of 30 (thirty) days from the receipt of Erasmus MC’s written request for consent. In case Company has not responded in writing to such request within the above mentioned term, Erasmus MC will be free to proceed with the publication without further delay.


#.2 Without prejudice to article #.1 here above, Company shall have the right to withhold such consent only in case the publication:

a. Contains information that may be subject of a patent application, in respect of

which no patent application has yet been filed;b. Contains confidential proprietary information of Company.

In case of (a.) such withholding of consent will not lead to a delay of

publication for more than three months.

In case of (b.) Company will inform Erasmus MC within the thirty (30) day period stating that the proposed publication contains confidential proprietary information of Company. In such a situation Company will indicate the proprietary information and Erasmus MC will then adapt the proposed publication in such a way that it will not publish such proprietary information of Company.


#.3 In oral presentations or written publications concerning the Research, Erasmus MC will acknowledge Company’s contribution to the Project, unless otherwise requested. #.4 It is expressly understood between the Parties, that Company shall not publish any information regarding the Project or disseminate any results of the Project without Institution’s prior written consent before Erasmus MC has been able to publish such information as a Science Citation Index (SCI) Publication: (a) SCI Publication shall mean that the publication has been fully referenced in the CSI with volume and page numbers;The publication of a mere abstract shall not be considered a SCI Publication


Other issues, some general remarks:• Material Transfer Agreements (MTA) = a license!• Non-Disclosure Agreements or Confidential Disclosure Agreements• ARVODI 2014• Intellectual Property protection/Embargo on publication• Jurisdiction and forum, Dropbox and server hosts

• Check your local policies and regulations• Check signature proceedings in your institution


ARVODI 2014 Artikel 13. Geheimhouding 13.1. Opdrachtnemer maakt hetgeen hem bij de uitvoering van de Overeenkomst ter kennis komt en waarvan hij het vertrouwelijke karakter kent of redelijkerwijs kan vermoeden op geen enkele wijze verder bekend, behalve voor zover enig wettelijk voorschrift of een uitspraak van de rechter hem tot bekendmaking daarvan verplicht. 13.2. Opdrachtnemer verplicht zijn Personeel deze geheimhoudingsverplichting na te leven en staat ervoor in dat deze personen die verplichting nakomen. 13.3. Opdrachtnemer mag de resultaten van de verrichte Diensten in generlei vorm aan derden beschikbaar stellen, noch hierover aan derden enige inlichting verschaffen, tenzij Opdrachtgever hiervoor uitdrukkelijk toestemming heeft verleend. Opdrachtgever kan aan deze toestemming voorwaarden verbinden.


How do researchers keep their data safe while using software of non-Dutch suppliers? This involves both software for gathering data as well as software for analysing data. Two examples based on reserach support experience during the past six years.One example specific to gathering data: Qualtrix is popular among researchers (Psychology, Communication Sciences) for purposes of gathering structured information from respondents, sometimes containing highly private matters. The surveys and the data are stored on a server of the software provider, an American company. Researchers keep the data stored on the server as a back up service and to have the data available for integrity inquiries. (Qualtrics stores IP addresses of respondents). But then there's the Patriot Act ...


A case related to data analysis. Some software packages for qualitative data analysis allow working on a single dataset by multiple researchers. Provided the data is stored on the server of the software supplier (US in most cases). On the software supplier's website there's usually mention of the data not being shared with third parties, but is it a matter of mere trust or can / should additional agreements be made? And in the case of Australian Nvivo supplier?

Datacenter EUR

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raw

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DutchDataverseNetwork

data sets

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Data Archiving and Networked Services

data sets

Cheap & safe storageand access to data


Data Archiving and Networked Services (DANS)

To whom does the copyright belong?The copyright holder does not transfer the rights; it concerns a non-exclusive licence from DANS. Permission is granted to DANS to perform specific activities, such as archiving the data and making data available. The depositor will continue to hold the copyright. For more information see the licence agreement on deposited data: http://www.dans.knaw.nl/en/content/dans-licence-agreement-deposited-data

WIKIhttps://wiki.surfnet.nl/display/RD

Contact University staff:Legal, library, RSO, ITSSS

Comments/questions/what to add?



• FP7 draft project data sharing rules• MTA VN• [email protected]

Research Data Ownership Rotterdam Science Tower December 2nd, 2014 Rob Posthumus Erasmus Centre for Valorisation.

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