This article is based on a memorandum compiled by the UBVA on the basis of discussions at a workshop on the subject held at the Royal Danish Library in Aarhus on 27 February 2017. The memorandum has been published as part of a larger memorandum on the Danish e-Infrastructure Cooperation (DeiC) website.
In this memorandum, the term “research data” is assumed to cover both primary material and data, as these terms are defined in the Danish Code of Conduct for Research Integrity (2014):
- Primary material is any material (e.g. biological material, notes, interviews, texts and literature, digital raw data, recordings, etc.) that forms the basis of the research.
- Data are detailed records of the primary materials that comprise the basis for the analysis that generates the results.
Examples of research data, cf. this source:
- Text or Word documents, spreadsheets
- Laboratory notebooks, field notebooks, diaries
- Questionnaires, test responses, transcripts, codebooks
- Audiotapes, videotapes, photographs, films
- Slides, artifacts, specimens, samples
- Collection of digital objects acquired and generated during the process of research
- Data files
- Database contents including video, audio, text, images
- Models, algorithms, scripts
- Contents of an application such as input, output, log files for analysis software, simulation software, schemas
- Methodologies and workflows
- Standard operating procedures and protocols
Access to research data means the right to access physical material (e.g. a source collection or a biobank) or digitally stored material. Such access may be permanent, e.g. in which you receive a copy of the research data, or temporary, in which you receive only time-limited reading access.
A right to dispose over research data may consist of a positive right to use research data and/or a negative right to prohibit others from disposing over research data. The positive and negative rights of disposal need not go hand-in-hand. The right of disposal may also be general or limited, including chronologically.
The issue of access to and the right of disposal over data raises a number of interests and considerations. For the researchers involved, these include the consideration of research freedom (including freedom of publication) and research integrity, the researchers’ interests in research, teaching and dissemination, as well as the researchers’ interest in meeting their obligations to foundations and partners. According to the Danish Code of Conduct for Research Integrity (2014), researchers should not enter into agreements (e.g. with sponsors or others) that limit their access to their own data or their ability to analyse and publish this data independently, unless such access restrictions are justified by the specific circumstances.
The research institutions involved must safeguard the freedom of research and the ethics of science, and under the Danish Code of Conduct for Research Integrity (2014) the institutions must have a policy for the storage of primary material and data that includes information on, inter alia, responsibility for and access to primary material and data, as well as data storage, access and ownership when researchers leave the institution. The institutions naturally also have an interest in fulfilling the obligations they have undertaken towards foundations and partners.
There may also be considerations regarding other institutional partners such as authorities, businesses and foundations, which in particular may involve the protection of business secrets, general commercial and strategic interests, and the like.
A number of different legal rules regulate the issue of access to and right of disposal over research data, in particular:
- Copyright law, patent law, utility model law and design law (IPR)
- Ordinary right of ownership
- Protection of trade secrets
- Personal data law
- Agreements on access to and the right of disposal over research data
In many cases, the legal regulation does not provide clear legal answers to questions about access to and the right of disposal over research data. The regulation can also lead to inappropriate results.
Amongst other things, it is important to be aware that the mentioned rules have different legal effects. The right of ownership of physical property means that the owner to a large extent has a legal right of access to the property. On the other hand, the protection provided under copyright, patent and design law only means that the rights holders may prohibit copying, etc., and does not afford them any right to access the protected material themselves. Moreover, any agreed rights can only have the legal effects stated in the agreements. This means that such agreements should explicitly state what the consequences will be if the parties fail to comply with them.
This may be illustrated in the following manner:
Does the right holder possess…
|IPR-protected research data||Research data covered by ordinary propery rights||Research data not protected by IPR, property rights or agreed legal protection||Agreements on access to and the right of disposal over research data|
|… positive access to the research data?
|… the right to make a copy of the research data?
|… the right to prevent further processing of the data?
|… the right to demand that the data be kept secret?
|In certain cases||No||In some circumstances, under other legislation||Yes|
|… the right to carry out commercial processing oneself?
Agreements on access to and the right of disposal over research data
As can be seen, optimal regulation of the issue of access to and right of disposal over research data will not typically result from the general legal regulation, but will require the signing of agreements. In this connection, reference is made to the article on research data management.