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«373 | LEGAL ASPECTS OF OPEN ACCESS TO PUBLICLY FUNDED RESEARCH CHAPTER 7. LEGAL ASPECTS OF OPEN ACCESS TO PUBLICLY FUNDED RESEARCH Internet growth, ...»

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373 | LEGAL ASPECTS OF OPEN ACCESS TO PUBLICLY FUNDED RESEARCH

CHAPTER 7. LEGAL ASPECTS OF OPEN ACCESS TO PUBLICLY FUNDED RESEARCH

Internet growth, content digitisation, and expanding “big data” and data analytics capabilities have affected

the ways in which publicly funded research results are accessed, disseminated and used. While these

technological advances have made sharing and processing information easier, that does not change the fact that the information may be protected by IP laws. Open access efforts, which aim to make the outputs of publicly funded research more widely accessible in digital formats, therefore raise a number of IP policy questions. To explain the interplay between open access and IP laws, this chapter provides an overview of the IP regimes that protect research outputs in a sample of OECD jurisdictions. It then reviews the open access policies that are in place in some of those jurisdictions and examines two contexts in which IP questions can arise when open access principles are applied: public/private partnerships and text and data mining.

The statistical data for Israel are supplied by and under the responsibility of the relevant Israeli authorities or third party. The use of such data by the OECD is without prejudice to the status of the Golan Heights, East Jerusalem and Israeli settlements in the West Bank under the terms of international law.

It should be noted that statistical data on Israeli patents and trademarks are supplied by the patent and trademark offices of the relevant countries.

ENQUIRIES INTO INTELLECTUAL PROPERTY'S ECONOMIC IMPACT © OECD 2015

374 | LEGAL ASPECTS OF OPEN ACCESS TO PUBLICLY FUNDED RESEARCH

EXECUTIVE SUMMARY

This chapter gives an overview of the main legal issues and policy considerations involved in accessing, disseminating or using both publicly funded scientific publications and research data under open access (OA) conditions. The term open access is used to denote public availability of scientific output (publications and data) without payment and re-use restriction. This paper focuses on the legal aspects of OA to publicly funded research results and, in particular, it examines whether copyright law and database protection rights support, impede, enable or are neutral towards the implementation of open access principles for the dissemination of publicly funded scientific results.

After a general overview of intellectual property protection at the international level, Section 2 examines the laws of different jurisdictions (including countries from the European Union, the United States of America, Australia, Canada, Israel, Japan and South Korea) as they relate to the protection of scientific publications and research data. The brief overview of the copyright and, where applicable, the database legislation in force in the different jurisdictions shows that the scope of protection granted to research output varies significantly from one country to another. Although the implementation of OA principles is based on contractual arrangements between authors, publishers, universities, and funding organisations, the framework set by copyright and database protection regimes, where relevant, is an important factor in how those arrangements are formed.

The way copyright law defines the scope of rights and recognises limitations and exceptions on these rights serves as the backbone to the licensing agreements. If it is to support OA, whether granted through the ‘Golden Road’ (where articles published in OA journals are provided directly and for free) or the ‘Green Road’ (where articles are published through traditional channels and subsequently deposited in institutional repositories), the copyright regime should create a favourable environment for the dissemination and re-use of publicly funded scholarly publications.

Section 3 follows by highlighting the main characteristics of OA principles and policies in certain jurisdictions. Section 4 draws attention to two as yet unresolved issues, namely the problem of OA in the context of public-private partnerships and that of text and data mining (TDM). OA principles entail more than just granting access to research output free of charge. Where the funding of a research project is partly realised through external private sources, different rules of ownership may apply. What are the implications of applying OA principles to research results that are not funded entirely by public money?

The uncertainty in current legal frameworks regarding the scope of protection of works and databases could create obstacles for TDM activities. A system resting solely on licensing agreements might be insufficient to allow TDM to take place in all instances where it would be socially desirable.

Although no generalisation can be made, countries that actively encourage compliance with OA principles for the publication of publicly funded research results seem to steer copyright reform in a more flexible and research-friendly direction. The United Kingdom is one good example of this: while the Research Council has adopted a ‘Golden Road’ policy, mandating researchers to publish results under a Creative Commons Attribution Licence 4.0, the legislator has also proceeded with the adoption of new exceptions on copyright, including a specific exception for text and data mining. The German research council may not have officially opted for an OA mandate on its grant recipients, but the legislator did modify the copyright act to make it easier for authors to comply with the contractual arrangements with publishers. The general framework of United States copyright law, which excludes Federal Government





375 | LEGAL ASPECTS OF OPEN ACCESS TO PUBLICLY FUNDED RESEARCH

works from protection and admits a fair use defence, is also very conducive to the application of OA principles.

The complexity of the status of research data in particular as protected by intellectual property in Europe and other jurisdictions arguably has the potential to adversely affect re-use opportunities, given the difficulty – both for research institutions making the database available and for prospective re-users – in determining each time whether a certain database is covered by a sui generis right and in which measure re-utilisation and extraction can take place freely. Whether the use of compilations or databases for purposes of research and private study in general, and text and data mining in particular, is covered by any relevant exception on copyright or the database right is not always clear. The use of Creative Commons licences 4.0 may alleviate the uncertainty by clearly stating what can and cannot be done with the licensed material.

Finally, four more conclusions can be drawn:

• The exponential growth in data should have little effect on copyright protection, e.g. should not make it either more or less relevant than it currently is. As long as the criteria for copyright protection are applied strictly (either in the form of an ‘originality’ requirement or that of being an ‘author’s own intellectual creation’), there is no reason to think that the copyright regime will lose its relevance.

• On the other hand, in those countries that recognise a sui generis regime of protection for databases, the exponential growth in data may entail a greater tendency towards private appropriation of databases. In this case, the application of OA principles to publicly funded scientific output is particularly important.

• The increase of machine-generated data in science (e.g. scientific sensors) may pose particular challenges, especially in trying to determine whether the result qualifies as a subject matter susceptible of intellectual property protection and whether it meets the criteria for protection.

• A related challenge might be the use of machine-generated data to identify a rights owner. This analysis would need to take place on a case-by-case basis. In the best case scenario, the machinegenerated data will not qualify as protectable subject matter and may also be devoid of any originality so that it would in principle be free for use by everyone.

–  –  –

Introduction Innovative scientific research plays a crucial role in addressing global challenges, such as healthcare, environmental, and security issues, while research in social sciences and the humanities occupies a key function in understanding emerging social phenomena 284. Evidence shows that access to research data not only increases the returns from public investment in this area, but it also reinforces open scientific inquiry, encourages diversity of opinions, promotes new areas of work and enables the exploration of topics not envisioned by the initial investigators 285. Collaborative exchanges help avoid unnecessary duplication of research and give insight into the methodology followed. Timely and cost efficient access to publicly funded scientific research therefore contributes to increasing the general economic and social welfare286.

Open access principles are gaining ground among policy makers, research funding agencies, high education institutions and researchers alike as the way forward. ‘Openness’ in science involves granting ‘access on equal terms for the international research community at the lowest possible cost, preferably at no more than the marginal cost of dissemination. Open access to research data from public funding should be easy, timely, user-friendly and preferably Internet-based’ 287.

Copyright and other intellectual property rights play a decisive role in the way scientific output is being disseminated and used by the scientific community because they underpin the relevant licensing practices. The expansion of open access policies to publicly funded research data raises a number of legal and policy issues that are often distinct from those concerning the publication of scientific articles and monographs. Since open access of research data – unlike publications – is a relatively new policy objective, less attention has been paid to the specific features of research data. This paper therefore gives an overview of the main legal issues and policy considerations involved in licensing both scientific publications and research data under open access conditions. It examines whether copyright law and database protection rights support, impede, enable or are neutral towards the implementation of open access principles for the dissemination of scientific results.

Generally speaking, intellectual property licenses are permissions to use protected subject matter, without which such use would constitute an act of infringement on the owner’s rights 288. Parties to a license tailor their contractual arrangements on the basis of the protection granted by the law. A license may therefore be more or less permissive for the licensee, depending on the circumstances and the goals pursued by the parties. Where the law is already permissive, a restrictive license will be deemed acceptable to an informed and equal licensee only if the reduction in permission is compensated in another way (reputation, income, etc.). Where the law is less permissive, a more liberal license will procure clear advantages to the licensee. The degree of permissiveness of an open access license is intrinsically connected to the scope of rights granted in each jurisdiction to scientific output, and the exceptions to those rights. While the implementation of OA principles may be based on contractual arrangements between authors, publishers, research institutions and funding organisations, the legal framework represents an important factor in how these arrangements are formed.

Other elements like the definition of protectable subject matter (e.g. the question of what is or is not protected by an IP right) and the duration of protection do not directly influence the permissiveness of an OA license, but are likely to affect the enforceability of a license. In principle, unprotected or no longer protected subject matter belongs to the public domain and should remain freely available for re-use by anyone and for any purpose. The failure to abide by the terms of a license attached to public domain material does not give rise to an infringement of rights. At most, it amounts to a breach of contract, which generally entails less far-reaching implications for licensees and more limited redress possibilities for the licensor. Because the qualification of the object licensed does not immediately affect the permissions granted under the OA license, this issue will essentially remain outside the scope of this chapter.

References to the criteria for protection in the jurisdictions surveyed below are meant to give a rough

377 | LEGAL ASPECTS OF OPEN ACCESS TO PUBLICLY FUNDED RESEARCH

indication of the likelihood that research data is protected independently from the scientific publications, and consequently whether it could be the object of a separate open access license.

This chapter is further divided in three parts after this introduction. Section 2 examines the intellectual property protection of scientific output, understood as including scientific and scholarly publications as well as collections of any type of data. After an introduction of the general legal framework, which gives an overview of the main existing intellectual property rights that may attach to scientific output, section 2 further gives a portrait of the laws of several jurisdictions applicable to research results, with a particular focus on copyright law and, where applicable, on the protection of databases. Section 3 follows by giving a brief overview of the open access policies in some of these jurisdictions, making a link with the state of the IP legislation in those countries. Section 4 draws attention to two as yet unresolved issues, namely the problem of open access in the context of public-private partnerships and that of text and data mining.



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