The Role of Scientific and Technical Data and Information in the Public Domain Proceedings of a Symposium (2003) / Chapter Skim
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Session 4: Responses by the Research and Education Communities in Preserving the Public Domain and Promoting Open Access -
Session 4: Responses by the Research and Education Communities in Preserving the Public Domain and Promoting Open Access -
20. Discussion Framework
Pages 139-160
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From page 141... ...
If one accepts this premise, then the enactment of some future database law could make it easier to impose restrictions on access to and use of scientific data than at present, but the absence of a database law or the enactment of a lower protectionist version would not necessarily avoid the imposition of similar restrictions by other means. In such an environment, the existing elements of risk or threat to the sharing norms of public science can only increase, unless the scientific community adopts countervailing measures.
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From page 142... ...
In other words, universities, notfor-profit research institutes, and academic investigators, all of whom depend on the sharing of data, will have to stipulate their own treaties or contractual arrangements to ensure unimpeded access to, and unrestricted use of, commonly needed raw materials in a public or quasi-public space, even though many such institutions or actors may separately engage in transfers of information for economic gain. This initiative, in turn, will require the federal government as the primary funder acting through the science agencies to join with the universities and scientific bodies in an effort to develop suitable contractual templates that could be used to regulate or influence the research commons.
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From page 143... ...
The ability of these government institutions to make their data holdings broadly available to all potential users, both scientific and other, has been greatly increased by direct online delivery. However, this potential is undermined by a perennial and growing shortage of government funds for such activities; by technical and administrative difficulties that impede long-term preservation of the exponentially increasing amounts of data to be deposited; and by pressures to commoditize data, which are reducing the scope of government activity and tend to discourage academic investigators from making unconditional deposits of even government-funded data to these repositories.
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From page 144... ...
The other is where the government licenses data collected by a private entity for public research purposes. In both cases, the underlying contractual templates should implement the following research-friendly legal guidelines: (1)
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From page 145... ...
This in turn would violate the government' s fiduciary responsibilities to taxpayers and raise conflicts of interest and questions concerning sham transactions. THE ACADEMIC SECTOR In putting forward our proposals concerning the preservation of a research commons for government-funded data, it is useful to follow the distinction between a zone of formal data exchanges and a zone of informal data exchanges previously discussed in Session 1.2 Consistent with our earlier analysis, we emphasize that the ability of government funding agencies to influence data exchange practices will be much greater in the formal than the informal zone.
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From page 146... ...
They will logically distinguish between uses of data for basic research purposes by other nonprofit institutions and purely commercial applicants. Even this apparently clear-cut distinction might break down, moreover, if universities treat databases whose principal user base is other nonprofit research institutions as commercial research tools.
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From page 147... ...
Ancillary Considerations In fashioning these proposals, we are aware that considerable thought has recently been given to the construction of voluntary social structures to support the production of large, complex information projects. Particularly relevant in this regard are the open-source software movement that has collectively developed and managed the GNUILinux Operating System and the Creative Commons, which seeks to encourage authors and artists to conditionally dedicate some or all of their exclusive rights to the public domain.4 In both these pioneering movements, agreed contractual templates have been experimentally developed to reverse or constrain the exclusionary effects of strong intellectual property rights.
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From page 148... ...
Ideally, funders and universities would agree on the need to maintain the functions of a public domain to the fullest extent possible, to provide open access for nonprofit research activities, and to encourage efficient technological applications of available data. At the same time, technological applications and other opportunities for commercial exploitation of certain types of databases will push the universities to enter into private contractual transactions that, if left totally unregulated, could adversely affect the availability of the relevant data for public research purposes.
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From page 149... ...
Finally, care must be taken to reduce friction between the scientific data commons as we envision it and universities' patenting practices under the Bayh-Dole Act. For example, any agreed contractual templates might have to allow for deferred release of data, even into repositories operating as a true public domain, at least for the duration of the one-year novelty grace period during which relevant patent applications based on the data could be filed.
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From page 150... ...
In so doing, the participating institutions could avoid a race to the bottom in which single universities might otherwise trade away more restrictions on open access and research to attract more and better deals from the private sector. Unless science itself takes steps of this kind, there is a serious risk that, under the impetus of BayhDole, the private sector will gradually impose its own database rules on all government-funded data products developed with their university partners.
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From page 151... ...
The full weight of the federal granting structure could then be made to support these efforts by mandating compliance with agreed terms and by directly or indirectly imposing sanctions for noncompliance. Alternatively, a less formal administrative structure could be built around a set of agreed contractual templates regulating access to government-funded data collections for public research purposes.
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From page 152... ...
In a word, a bright-line rule requiring unconditional deposits in all cases could thus defeat the goal of linking all university generators of government-funded data in a single, horizontally organized research commons. At the same time, the goal of universality could, paradoxically, require negotiators seeking to establish the system to deviate from the norm of full and open access by allowing a second type of conditional deposit of data into the horizontal domain by those disciplines or departments that were unwilling to jeopardize present or future commercial opportunities.
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From page 153... ...
In our estimation, the worst-case scenario is so bad, and the pressures to commoditize could become so great in the presence of a strong database right, that steps must be taken to ensure universal participation in a contractually reconstructed research commons from the outset by judiciously allowing conditional deposits of governmentfunded data on standard terms and conditions to which all the stakeholders had previously agreed. Indeed, the goal is to develop negotiated contractual templates that clearly reinforce and implement terms and conditions favorable to public research without unduly compromising the ability of the consortium's member universities to undertake commercial relations with the private sector.
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From page 154... ...
When, instead, given communities find themselves forced to deal with serious commercial pressures, the negotiated contractual solutions that enabled them to make the data conditionally available for public research purposes should also tend to preserve and implement the norms of science. In particular, the applicable contractual templates should immunize deposited data from the vagaries of case-by-case transactions under the aegis of universities' technology transfer offices and would also limit the kinds of restrictions private-sector partners might ~,~ ~ otherwise seek to impose on universities.
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From page 155... ...
In these cases, care must be taken to avoid adopting policies that would discourage either public-private partnerships for the development of socially beneficial data products or the inclusion of such products in a horizontal, quasi-public research space. At the same time, there is a potential loophole here that would allow universities to deviate from the general rules applicable to that space if the private partner could impose marketdriven access rights for nonprofit research purposes, and its partner university shared in those profits.
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From page 156... ...
These hard cases become even harder if the follow-on product primarily derives its commercial value from being a research tool universities themselves need to acquire. Assuming, as we do, that a primary objective of any negotiated solution is to avoid gaps in the data made available for public research purposes in the horizontal domain, there is an obvious need for agreed contractual templates that would respect and preserve the commercial interests in the vertical plane identified above.
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From page 157... ...
If Congress were to adopt a strong intellectual property right in noncopyrightable databases, this informal zone could expand further to include all the published data covered by an exclusive property right that had not otherwise been dedicated to the public domain. As previously discussed, actual secrecy is taken for granted in this zone, and disclosure depends on individually brokered transactions often based on reciprocity or some quid pro quo.
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From page 158... ...
In the absence of any underlying intellectual property right, an additional clause reserving all other rights and excluding unauthorized commercial uses and applications would complete the limited, "copyleft" concept. We believe that even a small number of standard contractual templates that facilitated access and use of scientific data for public research purposes could exert a disproportionately large impact on the increasingly open, collaborative work in the networked environment.
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From page 159... ...
Here, the policy behind a contractually reconstructed research commons is not to defend the norms of science so much as to persuade the private sector of the benefits it stands to gain from sharing its own data with the scientific community for public research purposes. The goal is thus to promote voluntary contributions that might not otherwise be made to the true public domain or to the conditional domain for public research purposes on favorable terms and conditions.
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From page 160... ...
This strategy may work successfully in the case of certain environmental data, where most commercially valuable applications are produced in real time or near-real time and can then be made available at lower cost and with fewer restrictions for retrospective research that is less time dependent. Such an approach might not work in other research areas, such as biotechnology, however, where a delay in access may not be an acceptable trade-off or that delay is too long to preserve competitive research values.
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