When it comes to making your dataset open-access, it’s all pretty simple isn’t it? Collect and collate the data you need to present, then make it available in an institutional or subject repository under an open licence and that’s it. Well, not quite!

You need to be aware of how copyright and other types of legal protection work in respect of datasets, and of any steps you will need to take to ensure that your datasets can be made freely available to others whilst respecting any rights  that apply to individual components or types of information contained in your dataset.

WHY DOES IT MATTER?

Protection of different types of data takes many forms. Researchers need to be aware of the legal landscape within which they produce and use research data and how this affects the way in which datasets can be made available for re-use by other researchers.  The University recommend using the Open Data Commons Open Database Licence  as a means of making your data open. This licence allows users to use, copy and distribute the database, to create other works based on the contents of the database and to modify, adapt or build on the database. (N.B. the terms datasets and databases in this context are used interchangeably). These are activities which are often regulated by other legal forms of protection such as copyright, database rights and General Data Protection Register,  so before applying an open licence to a dataset, a researcher needs to know whether any of the elements in their dataset attract protection, and if so, how it could affect the ability to make the dataset open access and what if anything needs to be done to ensure the rights and protections applying to the contents of the dataset are not infringed.

HOW CAN I TELL WHAT IS PROTECTED? 

Research data comes in many forms; depending on the type of project, the dataset containing the evidence underpinning the research could comprise  amongst others, observational data such as temperature measurements, body-weight recordings,  computer code or software, survey data, collections of digital images, collections of newspaper articles, collections of private correspondence,  transcripts or recordings of interviews or physical artefacts such as artworks or musical compositions.  Individual data elements within a dataset may enjoy protection, and collections of data can also enjoy Sui Generis database protection.  Personal data are protected under the GDPR (General Data Protection Register).

Copyright

Copyright law grants the rightsowner a number of exclusive rights including the right to copy, distribute and adapt the work and to sell or licence the copyright for use by others. Facts in themselves are not protected by copyright, rather, it is the original expression which is protected by copyright, and the work in question must demonstrate “the author’s own intellectual creation”.

A wide range of outputs enjoy copyright protection including:

• Original literary, dramatic, musical or artistic works;
• Computer programs and software code;
• Databases (in addition to the separate Database Right). This only applies where the selection or arrangement is original, and the protection only applies to the structure of the database and not the contents.
• Sound recordings, films or broadcasts; and
• Typographical arrangements of published editions.

Datasets comprising third-party copyright material, for example collections of newspaper articles, posts from social media sites cannot be made open access without first obtaining the permission of the rightsholders.  Similarly, where a researcher wants to include recorded interviews in a dataset, that is intended to be made available to others on an open-access basis, they would need to obtain the permission of the participants in order to do this.  Data obtained from archived datasets hosted in  subject or other repositories  is often made available for personal use, but if the datasets are intended to be further disseminated, then the permission of the rightsholder(s) of the dataset will need to be obtained.

Database Rights

In the European Union, the SGDR (Sui Generis Database Right) protects original and non-original databases.  Database rights can only apply where there has been substantial investment in the collection, verification and presentation of data obtained from independent sources. Efforts expended in creating the data populating the database does not automatically confer a database right. Database rights are protected for 15 years from the date of creation or publication. Once a database has been made available to the public, the Database Right allows authorised users to extract and re-use a substantial portion of the content for specific non-commercial purposes under “fair dealing”.  For some complex databases, the structure itself can be categorised as a literary work (even if its contents are of a visual nature) and attract 70 years’ copyright similar to other literary material.

General Data Protection Register (GDPR)

Datasets pertaining to research in any discipline which uses personal data such as medical science, social sciences and the humanities are required to comply with the provisions of the GDPR.  Datasets containing personal data cannot be made open access, even those where the data has been pseudo-anonymised.  Datasets containing fully anonymised data may be made available.

WHAT DO I NEED TO DO?

Before you start your research, you should be aware of any requirements to make your dataset open.  This may be as a result of a mandate from your funding body, or in response to the University’s Research Data Management Policy. The best time to consider whether you need to obtain permission to make data available is when creating your data management plan. The plan should outline what data will be created and how, and should include details on how the data will be shared, paying attention to any rights, protections and restrictions that may need to be taken into consideration.

Mary Mowat, Copyright Officer, University of Aberdeen
October 2020

It feels rather ironic to be writing on the subject of open access as we head towards the end of a year in which so many things have remained at least partly closed. However, the pandemic has served both to shine a light on the critical importance of open research and expose the amount of work still to do to achieve it. It is my hope that Open Access Week 2020 both reaches a wider audience and galvanises us into collective action like never before.

I have been thinking about, writing about and attempting to stimulate open access as the right solution for ethical and effective scholarly communications for almost two decades. Fifteen years ago, I was part of an ambitious plan to deliver an open access solution for Scotland through a national repository infrastructure, and while the lofty vision was never realised, this work placed Scotland at the forefront of open access thinking and demonstrated, as is often the case, that this is a nation well capable of ‘punching above its weight’. A paper describing a national information strategy for Scotland provides a 2005 overview of this project, within a wider context. It is satisfying to see that although the networked infrastructure we hoped to build is not in place, this paper still remains freely accessible through the institutional repository of a Scottish university.

This was a time when open access seemed most likely to be achievable by providing versions of published papers in repositories, while the final papers themselves would continue to be published in subscription journals – the so-called Green route. It was not until the publication of the Finch Report in 2012, and the enthusiasm of the then Minister for Higher Education (David Willets) for a Gold route, that open access of the published paper itself began to dominate policy and gain momentum. Very regrettably, this has become synonymous for many with one method of funding it: the article processing charge, or APC. This solution has served to perpetuate a scholarly communications infrastructure which relies upon commercial third parties, placing the research community at the mercy of a small number of profit-making organisations for whom profits and shareholder value are paramount.

Of course, publishers provide important services and publishing is a highly skilled profession without which our research would struggle to find its voice. Nevertheless, it can be difficult to regard some of the largest academic publishers as genuine partners in an endeavour from which their primary motive is to generate profit. As a result, eight years since Dame Janet Finch produced her findings, we are spending ever more university and research council funding on publishing Gold open access papers. Furthermore, we continue to spend vast sums on subscriptions: as well! We are very far from a sustainable position as we head into extremely turbulent financial times indeed.

What sometimes gets lost is that it really doesn’t need to be this way. Gold open access does not have to mean paying thousands of pounds to a commercial supplier to widen the reach of your research paper. It’s easy to forget that publishing in this way has a relatively short history, dating back to Robert Maxwell’s establishment of Pergamon Press in the 1950s, which is explained in this excellent overview of the staggeringly profitable business of scientific publishing. This set a course for a model which, while initially attractive as a way to accelerate publishing in a way that scholarly societies found difficult, took us to where we are now. And where we are now continues to astonish those who are not close it: why do we give our work away freely to a third party who then proceeds to make us pay in order to get it back for our libraries? Or to make us pay even more if we want the research to be openly available?

There are alternatives. In a sense, we are seeing a return to a previous model, where the sector takes control of its publishing through its own scholarly community and university presses. We are witnessing new university presses emerge like never before, but this time with a focus on supporting their researchers achieve open access for their outputs. Two prominent examples in the UK are UCL Press and White Rose Press. Both focus exclusively on open access publishing, and both are run by universities. Libraries are often very much part of such endeavours, as librarians have both a passion for making information available and a vested interest in reducing the overhead of the status quo, impacting as it does mainly on their budgets. I have been pleased to contribute to the creation of open access titles, firstly at the University of Edinburgh, where I established a journal hosting service, and it is good to see a journal in which I introduced the concept of Open Access in 2009 still going strong in 2020. More recently I worked at the University of Manchester in partnership with Manchester University Press to create the James Baldwin Review, an open access title which serves to communicate about a literary and political figure who is of such critical importance as we witness the events of 2020 and the Black Lives Matter movement.

There are so many opportunities now to publish research widely and openly, and so many reasons to do so, connecting academic thought with a wider audience in an era in which the concept of fake news is thrown about so liberally and ignorantly, hoaxes persist so harmfully and politicians claim weariness with ‘experts’. But yet we remain shackled to the journal titles we feel garner the most respect and the publishers that we think our peers will take seriously. Here, then, is the nub of the problem: it is time to change what matters. The important thing, surely, is the quality of the research, not the container in which it is disseminated. The success of our research should be measured by the impact it has on the wider world, not the extent to which it impresses our academic colleagues.

It is high time to reflect on our academic culture and ask difficult questions about why we communicate it in the way that we do. Initiatives like the San Francisco Declaration on Research Assessment help us to do this, and I am delighted that the University of Aberdeen has signed it. Our own strategic goals at Aberdeen also demand that we do; Aberdeen 2040 includes a commitment to open research, and no university has a better or more longstanding vision statement to compel us to work towards it. Since its Foundational Purpose in 1495, the University of Aberdeen has been open to all and dedicated to the pursuit of truth in the service of others. Where better to act as a leading light in making scholarly endeavours openly available to the widest possible community?

In 2016 I wrote about openness in academia against a backdrop that seemed to me to compel us to prioritise it as a critically important venture. In 2020 the stakes are even higher. The race to find reliable medical responses to COVID-19 is hindered by poor data reporting even when it really is, without hyperbole, a matter of life and death. As our students arrive at, or return to, universities for the new academic year, we need more than ever to provide them with online access to the information that they need to support their studies as they may not be able to visit our campuses, or be encouraged not to do so. No university is able to do this fully, because of the enormous cost. There is now a very clear case for publishing textbooks more affordably, but even without tackling that issue, we would have more resources at our disposal if so much of our library budgets were not tied up in multiyear journal subscriptions with large commercial publishers.

I may have said this before, more than once, but the time to change really is now.

Simon Bains, University Librarian, University of Aberdeen
October 2020