Open Access News

News from the open access movement

Tuesday, September 02, 2008

Legal background on data sharing

Mustafa Ünlü, Data Sharing and the Digital Science Commons, The [Michigan Telecommunications and Technology Law Review] Blog, August 29, 2008.
Data is both the primary output as well as the most vital input of the scientific process. In fact, data sharing performs such a key role that without a commons based on publicly shared data, scientific progress would surely suffer. In addition, data forms the foundation for downstream commercial applications aimed at privatizing the fruits of the scientific enterprise. Yet, despite their importance, data ownership rules are subject to a unique, inchoate IP regime which is neither copyright, patent, nor trademark. Moreover, these rules change over time, depending on whether the data has been published. Prior to publication, most data is treated as proprietary and secret. At this early stage, data sharing is governed by informal norms, which are enforced, if at all, under a minimal, liability rule-based legal infrastructure. After publication, data loses its protected status and becomes a part of the public domain. At this later stage, data sharing comes under a default rule of open and free access.

The Supreme Court has confirmed that copyright does not, and was not meant to, protect published data. The Court's rationale rests on principles that uphold the commons. ... In spite of the commitment to open access after publication post-publication privatization inevitably leads to interactions between upstream data sharing and exclusive IP rights. ...