RE: [rda-legalinterop-ig] Fwd: data ownership

11 Apr 2016

Ho, ho!!...
We are returning again to the core of the debate.
Bernard and Christophe are right, but also Paul.
See my conclusion below:
we should not use ownership in the context of our guidelines, but
we should not assert either that data is by essence a fact that cannot be owned or IPRed.
This was our consensus, by the way.
What follows is the rationale that led to this consensus and that “Christophe´s article” raises now (I could send you several few others on the same issue; the article does not say anything new)
Those who pretend that data can be appropriated through multiple practices used to circumvent the prohibition of copyright for facts or ideas (most research data are facts or ideas) use “ownership” in general to refer to all types of controls (e.g. trade secret, confidentiality, data as intangible property, prevention of trespassing computers without permission from the owner of the computer through the Computer Fraud and Abuse Act, etc).It clusters all exclusive “possession” or rights to access/use which are within the power of control of the producer of the data (the originator of the data or of the derivative data). So data ownership in the “business data law” environment includes all these “control of access/use” rights that the law (statutes and regulations; as opposed to contracts or individual acts such as representations, waivers, licenses etc) attributes to the controller.
Most private datasets producers (for example a list of IPs of the clients that use my app for best breweries in US cities –including Denver, Bernard- will always remain stored by the server of the web service that commercialized the app; and ASAP the list of IPs will be sold to Coors, Busch or the US association of artisanal beer breweries, so that they can send messages to them concerning their products; and when selling it, he owner -he pretends to be the owner because he has it, but .. is he/she really the owner? – will ensure that the obtainer of the list –the buyer- signs a clause acknowledging that he/she does not own the said IP list but that the said list is owned by the seller; and other clauses will determine if the owner can change it, add other IPs, sell it to a third party… ).
This is the usual way “Business data law” and “Big Data Business Law” orks.
Research as a private economic activity FOLLOWS THESE PRACTICES. So private pharmaceutical companies will always say that their research data is owned by them, simply because they have the list of such data (and it keeps it keep it secret or confidential). From there to saying that the list per se has enough invention/creation component there is a very thin line; and many jurisdictions admit that a simple list is copyrightable if the data is somehow peculiar.
See in the case of the US: as the US Court of Appeals for the Second Circuit has noted, the threshold level of originality for copyright protection is minimal and most compilations, through the compiler’s independent choice in the coordination, selection or arrangement of data, will qualify (CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc. 44 F.3d 61 (2d Cir. 1994)).
Applying these standards, courts have found, for example, the following examples of works to be copyrightable: a directory of Chinese-American businesses (see Key Publ’ns v. Chinatown Today Pub. Ent., 945 F.2d 509 (2d Cir. 1991)); a baseball pitching form with nine statistical columns (see Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991)); a compilation of wholesale prices of collectible coins (see CDN Inc. v. Kapes, 197 F.3d 1256 (9th Cir. 1999)).
Courts have found the following examples of works to be ineligible for copyright protection: a generic white pages directory (see Feist, 499 U.S. 340); a comprehensive cable system factbook (see Warren Pub., Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997)); a comprehensive “Code on Dental Procedures and Nomenclature” (see Am. Dental Ass’n v. Delta Dental PlansAss’n, 126 F.3d 977 (7th Cir. 1997)).
The comprehensiveness of some of these latter data collections worked against their eligibility for copyright protection.
So that is the reason why, to prevent the debate the Principles and Guidelines, ARE APPLICABLE TO DATA ORIGINATED UNDER PUBLIC FUNDING.
In my notes we settled that debate in July/August last year 2015 –one of the few in which Paul could not participate-; when I proposed text for Principle One which said that research data per se is not susceptible of ownership (they are “natural public domain”, using the notion of the French 19th Century sociologist/philosopher) and non copyrightable by essence. But Bernard´s examples in the line described above convinced me. De facto it does not matter whether they are or not susceptible of ownership or IPR because in the real world the market (and the law) attributed them almost in 99% of the cases the character of being a commodity.
The Open Access movement is intended to CHANGE that statu quo. If change is needed it is because the statu quo currently runs counter to the change. But even the EU concedes that the data is owned by the researcher who can IPR ot unless he/she embraces open access. It promotes decision-making against ownership but … this implies that it acknowledges ownership.
Some of the public interests listed in the balance principle are legally structured not as such but as a consequence of having a public agency as “the owner” of the data. NASA can decide to keep some satellite images. It owns them, But in a private contract it can decide to sell them to a third party ((like landsat used to do until it embraced open access). If it can sell, then it can attribute only its use or the accessibility to then without use etc. It does so by using IPR law as an instrument ancillary to property.
But, and here is where Paul is 100% right:
The Principles and Guidelines are only applicable to data stemming from publicly funded research (citizen money). The data should be owned by the payer: the citizen. A researcher who “keeps” the data or IPRs it is simply stealing the property of the citizen. That is why citizens got fed up with the extension of the “ownership” ideas of business law to the data that citizens pay to have the researcher obtain it.
Researchers (physical persons or institutions) who got payed by the public (taxes funding public budgets) cannot pretend any longer to own the data. The manager of the interest of the citizens (the agency or research funder) would be acting against the interest of its constituents (the general public) if it does not give to the citizen what he/she aid for. It should always impose open access to the researcher that it funds. E0Whetehr it is a fact or an expression of fact has become a secondary issue since that IPR principle has proven to be useless to solve accessibility and reuse of data for the advancement of science when produced with public money.
Niw there is another issue: what is better for the general interest? What creates and distributes more wealth? Since the agencies are entitled to make those choices (we leve in representative –not direct- democa0racies), that is the reason why open access is still disputed. Does open access create more economic wealth or does it stop it?
Some economists (Jonathan Zittrain´s “generativity”) defend the first; classic economists (competitiveness and IPRs) defend the second. But the trend of the 4th industrial revolution and the economy of knowledge seem to back the first. The economy gets stagnated with data ownership, in particular with the ownership of scientific research data. See e.g. the last OECD report: Dta-Driven Innovation: Big Data for Growth and Well-Being, Published on October 06, 2015. .
we should not use ownership in the context of our guidelines, but
we should not assert either that data is by essence a fact that cannot be IPRed.
This was our consensus, by the way
De: jbminster=***@***.*** [jbminster=***@***.***] En nombre de jbminster [***@***.***]
Enviado el: lunes, 11 de abril de 2016 19:36
Para: puhlir; RDA/CODATA Legal Interoperability IG
CC: Jean-Bernard Minster
Asunto: Re: [rda-legalinterop-ig] Fwd: data ownership
Paul: i understand your reluctance to use the word “ownership”, but I would think that a Big Pharma cooperation or a Big Oil corporation would like the concept, since they live by it. So what is the concept expressed when someone says “it’s MINE”. I think this might be explained in terms of an extreme version of IPR, namely, if it’s MINE, then I have total, exclusive rights to all of it and to all that can be done with it … until i sell it, of course. I understand the complexities if IPR, but “MINE” is a concept that 7 billion people across the planet understand very well. it defines all kind of other words, including “steal”.
So I think we do need to address it in some fashion, even if all we end up doing is “punting” on the issue and discuss only matters of public goods, already paid for by society.
That is a very hard question as most IPR questions tend to be, because if someone takes a public good, and adds a little bit of value to it by being clever, then the notion of ownership becomes very messy of course.
We would do a world of good to the community if we could devise a clear and simple way to describe (if not resolve) the issue.
Just my 2 cents.
On Apr 11, 2016, at 06:30, puhlir
<***@***.***> wrote:
Hi all:
I am forwarding a message from Christoph Bruch about data "ownership" and an article about it. Personally, I do not like using the word "ownership" for intangible, public goods, especially for non-copyrightable facts in the public domain. Such facts are "discovered" not "created", and can be "controlled" but not "owned". I agree with Christoph that we ought to insert this issue somewhere in the guidelines, although I think it should be done after the next round of reviews, because it is not a straightforward fix and we need to get the documents out to the reviewers in the next week.
Does the ownership issue rise to the level of a First Principle? Should we say something like: 1. "Facts of nature contained in a dataset are public goods that cannot be owned, only controlled." Such a Principle would also provide a vehicle for explaining the threshold difference between information that is subject to IPRs and info that is in the public domain, which sets apart many datasets from creative works.
---------- Forwarded message ----------
From: Christoph Bruch <***@***.***>
Date: Sun, Apr 10, 2016 at 7:07 PM
Subject: WG: data ownership
To: puhlir
Hi Paul
I am sending this directly to you as I got an error message from our list server.
Christoph Bruch
Helmholtz Association
Helmholtz Open Science Coordination Office
W: +49 (0)331 28 82 87 61
M: +49 (0)151 14 09 39 68
Von: Christoph Bruch [mailto:***@***.***]
Gesendet: Montag, 11. April 2016 00:02
An: 'RDA/CODATA Legal Interoperability IG'
Betreff: data ownership
Dear All,
After reading the article cited below I am convinced that we do need to add to our paper an definition/disclaimer stating that the concept concerning ownership of data still poses fundamental questions, which we cannot answer.
The following paragraph is only meant to start our conversation
Data Ownership
Relating the term ownership to data poses many questions, first of all if ownership can apply at all. In many, possibly the great majority of cases copyright will not apply due to the fact that a great amount of creativity may have been employed produce data but this creativity is not represented in the data thus they do not constitute works in the sense of copyright. A database that consists of data may be protected e.g. based on the sui generis database protection applying within the European Union. It is important to realize that the European database protection protects the investment in the database that is the investment necessary to collect and sort the content of the database. The protection does not apply to the individual data. Data even though they are immaterial are fix on some kind of medium. The question whether ownership of the medium constitutes ownership of the data fixed on it will not be answered consistently across all jurisdictions. In respect to this document all these uncertainties translate to a utilitarian understanding of the term data ownership, meaning to identify the person/institution that has authority to decide what may be done with the data even though not all question mention above can be answered satisfactory.
Hoeren, Thomas (2014): Big Data and the Ownership in Data: Recent Developments in Europe, European Intellectual Property Review, Bd. 2014, Nr. 12, S. 751-754.
Big data is a catch word which is used now as a denominator for a variety of new data processing services. But one "simple" question behind big data is unsolved: Who owns data? Can data be "owned"? And who is the owner if data are stored for instance in the data recorder of a car-the car producer; the car owner; the driver? Property in data seems to contradict the traditional concepts of civil law which have attributed property to tangible goods since Roman times. These concepts seem to have become undermined in the information society. But the first courts in the United Kingdom and Germany have dealt with the matter and seem to have developed a new intellectual property right to data.
Christoph Bruch
Helmholtz Association
Helmholtz Open Science Coordination Office
W: +49 (0)331 28 82 87 61
M: +49 (0)151 14 09 39 68
Von: pfuhlir=***@***.*** [mailto:***@***.***] Im Auftrag von puhlir
Gesendet: Freitag, 8. April 2016 16:23
An: agosti; RDA/CODATA Legal Interoperability IG
Betreff: [rda-legalinterop-ig] Re: [rda-legalinterop-ig] Final revisions to Implementation Guidelines prior to second...
Thanks, Donat. I actually do have this and cite as LIBER 2015.
On Fri, Apr 8, 2016 at 9:19 AM, agosti <***@***.***> wrote:
Here is another global declaration to add to the introduction
The Hague Declaration (2015)
- Show quoted text -From: pfuhlir=***@***.*** [mailto:pfuhlir=***@***.***] On Behalf Of puhlir
Sent: Thursday, April 7, 2016 3:44 PM
To: RDA/CODATA Legal Interoperability IG <***@***.***>
Subject: [rda-legalinterop-ig] Final revisions to Implementation Guidelines prior to second review
Hi all:
Attached are the Guidelines for discussion tomorrow. I have added the comments from last week, including the references in the text; revised the definitions section further, extensively revised and added references at the end.
Later today I will send out the notes prepared by Gail and myself from the breakout session we held at RDA P7, as well as a draft memo to the second batch of reviewers. Simon will also send the instructions for the telcon tomorrow.
We will discuss the final changes to the document and the second review process, together with the identification of those reviewers.
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  • Willi Egloff's picture

    Author: Willi Egloff

    Date: 11 Apr, 2016

    Hi all
    We are quite near to the finishing line, but it seems that you have the
    intention to restart the race. If you are willing to do so, then please
    let me remind you some basics of civil law.
    I think that there is a problem with the notion of "ownership". If it is
    understood as a legal concept, than the meaning should be clear: The
    owner is the person that has an absolute right on a "thing". He can keep
    it, he can use it, he can destroy it, and he can prevent anybody else
    from using it too. This "thing" can be a material or an inmaterial good.
    Material goods are all physically existing objects as well as some
    legally defined rights affiliated to such objects (e.g. pawns,
    mortgages). Inmaterial goods are non-physically existing objects that
    have been defined as having the quality of a good by law. The list of
    such goods can vary from country to country, but it is always exhaustive
    (numerus clausus).
    In most countries the law recognizes as inmaterial goods: inventions (by
    patent law), trademarks, designs, works (by copyright law),
    interpretations of works (by neighbouring right law), plant varieties,
    layout designs of integrated circuits and others more. No country
    recognizes "data" as an inmaterial good. That's why "data" cannot be a
    good in the sense of property and it cannot be "owned". Of course, you
    can define "data" in a way that it may in certain cases qualify as work
    in the sense of copyright, as a database in the sense of database
    protection, or eventually as another inmaterial good, but then it is
    protected as work, as database, and not as "data".
    The difference can be illustrated in the legal situation that occurs,
    when data is transmitted erronously to another person. If I have a
    copyrightable set of data and I send it to another person, then I can
    prohibit to that person the use of this dataset, because I am the
    copyright owner. If the dataset is not copyrightable, I have no
    possiblity to impede the receiver from making use of it. The receiver
    can do with this dataset whatever he wants (as long as he does not
    infringe eventual other protection schemes, e.g. privacy, unfair
    That's why the car-example mentioned in the "Opinion"-text of Thomas
    Hoeren is wrong. The data automatically collected by the board computer
    do not belong neither to the car owner nor to the car producer. If the
    car owner lends his car to a neigbour and the neigbour has the strange
    idea (and the factual capacity) to copy all these data, there is no
    legal means to get these data back. The neighbour can keep them and use
    them, if he wants to. Neither the car owner nor anyone else has an
    absolute right on these data.
    Consequence for me: Never speak of ownership in the case of data,
    because it is misleading. Data can eventually be IPRed, but only if
    "data" is defined in such a way that it can - in given circumstances -
    qualify as work or as another legally defined inmaterial good.
    One could of course promote the idea of changing the law in order to
    recognize a new inmaterial good called "data". It would be the beginning
    of the end of open science and open society.
    Best regards,

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