Research data considered as completed and software are treated as administrative documents and public information.
What is meant by completed data?
The concept of completed data is linked to the rules governing the communicability of public documents, which are considered unfinished when they are in the process of being drawn up.
It can therefore be assumed that there is always a stage in a research project when the data is not complete, but over a more or less long period of time it becomes so.
Legal ownership: who owns the data?
As intellectual works, data are protected by the researcher’s copyright on two conditions:
- it must be formalised (i.e. not ideas, algorithms, etc.),
- they are original.
In most cases, it is difficult to justify that the data are original works.
The institution is therefore the producer in the legal sense.
The question of ownership of rights is linked to a logic of resources and investment: the supervisory authority generally provides the resources to produce the data.
The term ‘ownership’ is a little misleading in that, since the Digital Act, research data is public information.
A particularly comprehensive tool in the form of a dynamic flowchart proposed by the ENPC can be used to identify all possible cases: Dynamic flow chart.
The case of databases
Databases are protected by two different rights: copyright and the sui generis right of the database producer. But: copyright in a database arises when its structure is original, i.e. the arrangement of the elements it includes is the result of a choice that ‘reflects the author’s personality’, which is not generally the case for research databases.
The sui generis right protects the investment made by the producers of the databases: generally the institution to which the researcher producing the database belongs.
As in the case of computer code, it is necessary to identify all the employers and contributors in order to determine each party’s involvement.
Dissemination rights and obligations
Public data is subject to the principle of openness by default.
There are, of course, exceptions to this:
- When the institution can justify at least 25% of its own resources coming from royalties on data. This is the case for the IGN, for example.
- The term ‘data’ is relatively unclear (see here). One exception to openness is when the data is an original work, i.e. an original creation bearing the imprint of the author’s personality. For example, a picture produced by a researcher. In this case, the researcher benefits from copyright, as for publications. It is also possible to assign rights. Another example: a physical measurement is not original. Some photographs are not original.
- Personal data: in this case, there is no opening by default. The people concerned have the rights on their data.
- Third-party rights: a company has rights on its data. As part of a partnership project, the partnership agreement is mandatory and defines the responsibilities and rights of each party with regard to what the partners contribute and what they create collectively as part of the project.
The importance of consortium and partnership agreements
The main thing to remember is that research establishments generally own the rights to the data produced by their workers.
When you are involved in a collaborative project, it is essential to draw up an agreement or a consortium agreement to specify the responsibilities of each contributor.
Most research funders require this at the start of a project, so drawing up an agreement in the case of a non-funded project or when no agreement is required can be extremely useful.
In the case of public-private partnerships, agreements or contracts are also needed to spell things out.
Ressources
The ouvrir la science website offers plenty of resources on the subject.
In particular: The guide on research data openess legal aspects (french version only).
Reference texts
Data in the broadest sense is subject to various legal texts:
- Intellectual Property Code (CPI)
- Code of Relations between the Public and the Administration (CRPA)
- Education Code
- Research Code
- Civil Code
- French Environment Code
- Law for a Digital Republic (2016), articles of which are transposed into several laws