petermr's blog

The next few posts will contain a substantial amount of comment (hopefully from you, dear readers and commentators) on the June 2006 ALPSP/STM statement on data in scholarly publications. I’m kicking myself for missing it. I plead that I have many other things to do (chemical research, writing programs), and Open Data is not my top priority, so I wasn’t reading Peter Suber’s Open Access News blog on a daily basis. I have a better feedreader and am now. Here’s his June comment:

ALPSP and STM support OA data The ALPSP and STM have issued a joint statement in support of free online access to scientific data (June 2006). Excerpt:

Publishers recognise that in many disciplines data itself, in various forms, is now a key output of research.

[snip… you can read the full statement here]

this is fundamental in copyright law. In the EU, the use of ‘insubstantial’ parts of a database, provided it is not systematic and repeated, does not infringe the database maker’s rights.

PS: Comments. Three quick responses.

1. First, I commend ALPSP and STM for the primary recommendation in this significant statement. Open access to data is important for all the reasons they cite.
2. Their call for intellectual property protection for databases is a separable and regrettable part of their statement. The EU has such protection but the US does not. Any argument that such protection is needed to stimulate the production, collection, or dissemination of data is refuted by the vigor of science in the US.
3. The ALPSP and STM both lobby against policies that would provide OA to research literature, like FRPAA and the draft RCUK policy. I acknowledge that there are many differences between OA to data and OA to peer-reviewed articles interpreting or analyzing data. But ALPSP and STM should acknowledge that there are many similarities, and that most of their arguments for OA data (enhancing research productivity, avoiding costly repetition of research, supporting the creative integration and reworking of research) also apply to OA literature.

PMR comments:
(1) Like PS I commend the ALPSP and STM for this. (It is very important that we do not see people and organisations as “good” and “bad” – this sometimes happens in web-based and other discussions. They have good and bad policies. So this is a very valuable advance.
(2) I support Peter’s position as well. I think the blanket claim for IPR through this method is both crude and generally undesirable. Anything that can be done to make it clear that data in publications lie without this directive is important. A journal is not, IMO, a database (though the ACS now explicitly claims that a journal is not longer a journal, but a database to which readers have access. There are other issues here, but I stick with the data). So I will help to promote the swell of challenge to database rights, but I’m not leading the charge.
(3) I am, of course, a strong supporter of Open Access, and the logical premise that OA implies Open Data. That is the area where I’m trying to lead a charge.
So, in principle, all members of ALPSP and STM should support this, shouldn’t they? Or has there been dissension. If not, we’ll assume it’s got universal support.
So what possible legitimacy do we have for journals that copyright supplemental info?
(There are many other questions – what about data in full text? what about spidering websites? It should be exciting to examine these. Let’s see if we can use the blogosphere to do some useful research into this.)
And – finally – why did no-one on the SPARC Open Data list flag this?
I missed this in June: I’ll reproduce Peter Sub

I’m over the moon! Richard (from the Royal Society of Chemistry) has commented on my post: about the ownership and licensing of data

1. Richard Says:
   December 13th, 2006 at 3:27 pm eAnd of course, publishers (well, ALPSP and STM members) have this statement as guidance.

Now I knew that STM publishers were thinking of coming out with something like this and I kept searching from time to time, but I missed it. (It’s dated June 2006). It really should have got spotted by the SPARC Open Data membership, shouldn’t it.  Anyway here we go (it doesn’t have colpyright statement so I claim fair use, and it’s in hamburger format so I hope I have got most of what matters):

Databases, data sets, and data accessibility – views and practices
of scholarly publishers

A statement by the Association of Learned and Professional
Society Publishers (ALPSP) and the International Association of
Scientific, Technical and Medical Publishers (STM)

Publishers recognise that in many disciplines data itself, in various forms,
is now a key output of research. Data searching and mining tools permit
increasingly sophisticated use of raw data. Of course, journal articles
provide one ‘view’ of the significance and interpretation of that data – and
conference presentations and informal exchanges may provide other
‘views’ – but data itself is an increasingly important community resource.
Science is best advanced by allowing as many scientists as possible to
have access to as much prior data as possible; this avoids costly
repetition of work, and allows creative new integration and reworking of
existing data.
There is considerable controversy in the scholarly community about
‘ownership’ of and access to data, some of which arises because of the
difficulty in distinguishing between information products created for the
specific display and retrieval of data (‘databases’) and sets or collections
of raw relevant data captured in the course of research or other efforts
(‘data sets’). Another point of difficulty is that in many cases data sets or
even smaller sub-sets of data are also provided as an electronic adjunct to
a paper submitted to a scholarly journal, either for online publication or
simply to allow the referees to verify the conclusions.
We believe that, as a general principle, data sets, the raw data outputs of
research, and sets or sub-sets of that data which are submitted with a
paper to a journal, should wherever possible be made freely accessible to
other scholars. We believe that the best practice for scholarly journal
publishers is to separate supporting data from the article itself, and not to
require any transfer of or ownership in such data or data sets as a
condition of publication of the article in question. Further, we believe that
when articles are published that have associated data files, it would be
highly desirable, whenever feasible, to provide free access to that data,
immediately or shortly after publication, whether the data is hosted on the
publisher’s own site or elsewhere (even when the article itself is published
under a business model which does not make it immediately free to all).
We recognise, however, that hosting, maintaining and preserving raw
data or data sets, and continuing to make such data available over the
long term, has a cost which, in certain circumstances, the host site may
need to recover. We also recognize that on occasion the generation of
data has been privately funded, and the funding entity may have a
particular reason for restricting access to the data (either temporarily or
even permanently), but we believe these should be limited exceptions,
and that journal publishers themselves should claim no ownership interest
in such data. The academic and publishing communities should discuss
further (in the context of the debate on the public funding of research)
whether more reliable and more permanent sites should be established to
host research data.
None of this means, however, that databases themselves – collections of
data specifically organised and presented, often at considerable cost, for
the ease of viewing, retrieval and analysis – do not merit intellectual
property protection, under copyright or database protection principles.
Such databases are often characterized by the sophistication of their data
field structuring, searchability tools, and the like, and scholarly publishers
are often involved in producing and marketing databases that contain
valuable and useful information for scholarly research. The research
interest and value of raw research data sets and individual data points is
entirely different, and serves different purposes, from that of specific
databases that have been organised and compiled for particular research
needs.
There is sometimes confusion about whether the use of individual ‘facts’
and data points extracted from a database is permitted under law. Facts
themselves are not copyrightable, but only the way in which information is
expressed – this is fundamental in copyright law. In the EU, the use of
‘insubstantial’ parts of a database, provided it is not systematic and
repeated, does not infringe the database maker’s rights.
Articles published in scholarly journals often include tables and charts in
which certain data points are included or expressed. Journal publishers
often do seek the transfer of or ownership of the publishing rights in such
illustrations (as they might do with respect to an author’s photograph),
but this does not amount to a claim to the underlying data itself.
We hope that this statement is helpful in clarifying the views of publishers
concerning raw data, data sets and databases, and that the statement will
serve as useful guidance for publishers in their policies concerning data
sets submitted with papers. Scholarly and scientific publishers share the
view that research data should be as widely available as possible.
June 2006

PMR: This looks very useful indeed. Thanks Richard. I don’t know how I missed it. I will comment later.

In reply to my last post (about the idea of adding Creative Commons licenses to scientific data)…

1. Robin Rice Says:
   December 12th, 2006 at 7:04 pm eThere was an article in the October issue of Ariadne, Creative Commons Licences in Higher and Further Education: Do We Care? which points out some of the questions around widespread use of Creative Commons licenses. “Naomi Korn and Charles Oppenheim discuss the history and merits of using Creative Commons licences whilst questioning whether these licences are indeed a panacea.”

Robin – that’s wonderful – I’d missed this but I’ll quote extensively (the article is Openly available and while it doesn’t fulfil all the criteria of the BOAI it allows extensive quoting. But you can’t resell it :-)…

Creative Commons Licences in Higher and Further Education: Do We Care?

Naomi Korn and Charles Oppenheim discuss the history and merits of using Creative Commons licences while questioning whether these licences are indeed a panacea.

The recent incorporation of Creative Commons licences within Microsoft Office Word, Excel and PowerPoint applications via a downloadable plug-in [7] now provides an integrated method for the creation and licensing of content. It is a brilliant way of encouraging consideration about who is allowed access to digital content and under what conditions, at the time that the content is generated. This development has enormous potential for nurturing educated and mature approaches to copyright and access, but at the same time had also necessitated the need to re-examine the validity of using Creative Commons within teaching, learning and research activities. It has precipitated a critical assessment of their use and the need to set clear parameters about when they can and cannot be used.

[7 is Microsoft Office plug-in http://www.microsoft.com/downloads/details.aspx?FamilyId=113B53DD-1CC0-4FBE-9E1D-B91D07C76504&displaylang=en/ ]

PMR: This is really exciting. I don’t mind other people being visited by a meme ahead of me – it strengthens my resolve. From the Microsoft (yes, Microsoft) page:

Overview

This add-in enables you to embed a Creative Commons license into a document that you create using the popular applications: Microsoft Office Word, Microsoft Office PowerPoint, or Microsoft Office Excel. With a Creative Commons license, authors can express their intentions regarding how their works may be used by others.
The add-in downloads the Creative Commons license you designate from the Creative Commons Web site and inserts it directly into your creative work. Creative Commons supports a number of languages.
To learn more about Creative Commons, please visit its web site, www.creativecommons.org. To learn more about the choices among the Creative Commons licenses, see http://creativecommons.org/about/licenses/meet-the-licenses.
Microsoft Office productivity applications are the most widely used personal productivity applications in the world, and Microsoft’s goal is to enhance the user’s experience with those applications. Empowering Microsoft Office users to express their intentions through Creative Commons licenses is another way Microsoft enables users around the world to exercise their creative freedom while being clear about the rights granted to users of a creative work. In the past, it has not always been easy or obvious to understand the intentions of some authors or artists regarding distribution or use of their intellectual creations.
This add-in is made available through a partnership among Creative Commons, Microsoft, and 3Sharp, LLC, an independent solution provider.
The Creative Commons Add-in is an unsupported technology preview, however we welcome your feedback and input. Please send it to us at ccfeedbk@microsoft.com.

PMR: Whatever else one thinks of Microsoft, this looks like a genuine and important offering.
My Korn-Oppenheim approximation (couldn’t resist the pun)… I quote snippets…

Creative Commons actively encourages the sharing of educational material, … This ‘standard licence’ is not specific for educational purposes and users can only choose, as in the case of the majority of Creative Commons licences, to make the content available either for commercial or non-commercial purposes. Creative Commons licences do not specifically cater for educational purposes.
It is also worth noting that there is a significant difference between the information that is provided within the full-length licence in comparison to that which appears within the shortened code of Creative Commons licences. […]

• If the work includes third party rights for which the Higher or Further Education institution has not secured permission for them to then be disseminated under a CC licence. This might include the use of photographs, text, images, etc., generated by third parties, or indeed images of third parties for which permission would need to be sought.
• As an employee, unless there is an agreement with the employer to the contrary, the employer is likely to own the rights in the work created (as is the case with course material, research outputs, etc). In this case, as the employee does not own the rights in the work that is produced, he or she will need to check with the institution that it is happy for it to be made available under a Creative Commons licence. Reasons for refusal might include those that are ethical, political, financial or legal. We are, of course, aware that in many institutions, custom and practice leaves such decisions to the employee. The recent HEFCE Good Practice Guide [17], however, strongly encourages such institutions to assert ownership of copyright in e-learning materials, and such advice may well occasion changes in policy in the future.
• The terms of the Creative Commons licence may cut across some of the activities for which an institution or department might normally charge, the business activities of the department or institution, or undermine existing licensing arrangements with third parties.
• Creative Commons licences are global licences without providing any means to restrict the countries in which material may be used. This is important if contractual agreements, relationships, political or ethical reasons preclude the release of certain types of learning material or research outputs in particular countries.
• The department or institution may want more control over the context of use of the work and want to prevent any implied or direct endorsement. This is not currently one of the areas which is covered by the licence.
• It maybe important to know who accesses and uses the material that is generated, for evaluation, marketing and other in-house purposes. The Creative Commons licences have no provision for user accountability, or tracing of usage.
• There are also many instances where you cannot use TPMS (Technical Protection Measures) in conjunction with the use of Creative Commons licences, if TPMS undermine any of the provisions of the licences. Thus, for example, restricting access to students within the institution is incompatible with a Creative Commons licence.
• The Creative Commons licence does not cover database rights, yet much output from FE and HE institutions is protected by such rights. Thus, even with a Creative Commons licence, users may not infringe any database rights.
• It is, in any case, unclear if Creative Commons licences are valid in UK law, as they do not provide any ‘consideration’ or payment, and there is no ‘I agree’ button to accept.

Concluding Remarks

The well-known JORUM service [18] decided not to use Creative Commons licences in the past because of some of the points made within this article. So, are Creative Commons licences a panacea? No. Should we worry? Probably not, but we need to be aware of the implications and limitations of using Creative Commons licences and remember that their use is only as good as staff awareness about copyright issues, rights management procedures and robust policies underpinning the operations of educational institutions. HE and FE institutions need to be clear about their policies towards access and broader strategic and commercial goals, before committing themselves to the irrevocable terms of Creative Commons licences.
It might be advisable instead for institutions to explore the use of Creative Archive licences [5], which are a set of more restrictive licences, based upon the same premise as Creative Commons but with limits upon the use of content for educational and non-commercial purposes and restrictions relating to the territories in which they may be used.

All these are valid points. However I am only concerned here with scientific facts supporting research output. I hope that HE institutions do not regard themselves as the owners of scientific facts in which case there is no problem. I agree that CC is not designed for science – hence the Science Commons effort.
I haven’t downloaded and installed the plugin, but my main concern is that someone might leave the CC license switched on at an early stage. If this circulated in private it might vitiate a patent although I don’t know the law. When the data has appeared the license has no effect on a patent which has been successfully filed. You cannot patent data.
So let’s encourage everyone to download this plugin. Wow!