# The legal and policy framework for scientific data sharing, mining and reuse

Melanie Dulong de Rosnay

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Melanie Dulong de Rosnay. The legal and policy framework for scientific data sharing, mining and reuse. 2013. halshs-01115009

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# The legal and policy framework for scientific data sharing, mining and reuse

Melanie Dulong de Rosnay

French National Center for Scientific Research (CNRS) Institute for Communication Sciences

melanie.dulong@cnrs.fr

Working paper, December 2013, last revised April 2014

## Introduction

Legal aspects of data sharing matter to at least three decision-making areas, all depending on access to publicly funded research: scientific and innovation policy; databases, publishing platforms, repository and data mining applications producers; public sector information and open data movements.

The topic of open data was discussed in the European Parliament with the vote in March 2013 of the *Horizon 2020* EU programme for research and innovation, which contained a part on open access to publication and scientific results. The European Commission consultation *Licenses for Europe*, with stakeholders proposing to create a new exception for users, and others to create a new revenue stream for publishers, revealed similar opposition than other copyright-related issues. At the same time, UK made progress towards open access by developing the *Gateway to Research* portal and requiring Open Access for certain research outputs to be considered in evaluation policies, while Spain, Argentina, Italy, Germany and Peru voted laws to mandate Open Access.

Considering the scientific data ecosystem in its entirety gives the opportunity to study the question of scientific data, from its creation by researchers to its access and reuse by students, citizens, public bodies, NGOs and companies. Therefore, this paper will combine a presentation of the legal framework governing the creation and the usage of data, the policy options from all rights reserved to unlimited reuse, and the requirements of platforms and applications to process scientific data, perform queries, data mining, visualization or other analysis tasks without restrictions. Above mentioned examples from the European and Latin American countries moving forward Open Access to scientific publication and in some cases data will together illustrate tendencies and controversies around scientific data sharing and reuse policies.

As for methodology and definition of scope, the legal and policy framework is understood not only as the set of laws and contracts governing the access to and reuse of data (regulation by law), but also the opportunities and restrictions embedded in the technical architecture (regulation by technology) hosting the data. While the article focuses of scientific data, such analysis and conclusions are also applicable to public sector information and citizen data as they can also be used by researchers.

## 1. The legal framework for data

### 1.1 Data creation, access and reuse

The mere generation of data is not covered by most copyright-related legislations. Copyright provides an exclusive right on ideas, facts or data only when they are formalized, for instance under the form of an article. Even if raw data is in principle not be protected, some jurisdictions
recognized a specific right to compilations or databases¹. This is the case in Europe, with the EC 2006 Database Directive² granting a *sui generis* rights to the producer of a database, defined as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”. The Directive, which had to be transposed in Member States legislations, grants to the data producer, the entity responsible for the investment in time and resources, an exclusive right on access and reuse of data. According to this right, any person willing to access to and reuse the data will have to request the authorisation of the database producer. Only non substantial reuse may fall under the scope of exceptions to the Directive and be performed freely by potential users. Any update or new investment will lead to the renewal of the protection of 20 years, allowing a possible perpetuity of exclusivity in the case of maintenance of the database.

In the US however, collections of facts lacking of creativity and originality³ are outside of the scope of copyright and remain free to reuse for researchers, libraries, consumers and companies. Most other countries follow that model and do not grant protection to the database in additional to the content and its elements which may fall under copyright or not fulfill the requirements of intellectual creation. Countries recognising a right to database makers including compilations of facts lacking of creativity include Mexico⁴ and Korea⁵. Treaty 1996 proposal has left the agenda of WIPO, the World Intellectual Property Organisation, but in countries lacking of database rights, legislations for unfair competition may reach the same effect⁶.

## 1.2 Specific status for scientific data

Scientific data and databases can also be populated by copyrightable items, such as photos, or notices drafted from observation results and comments. Metadata and underlying taxonomy and ontology structure will fall under the definition of a database, and are protected differently than the item they describe, a raw data which will not be protected by itself, or a photo which will be copyrightable but useless out of context and lacking of metadata. “This discrepancy reveals an

1. For a more detailed overview of the legal status of research data mining regarding licensing, database and copyright law, see Guibault L., "Licensing Research Data under Open Access Condition", in D. Beldiman (ed.), *Information and Knowledge, 21st Century Challenges in Intellectual Property and Knowledge Governance*, Cheltenham, Edward Elgar, 2013, available at http://www.ivir.nl/publications/guibault/Open Research Data.pdf; Guadamuz A. and Cabell D., "Data Mining In UK Higher Education Institutions: Law and Policy", *Queen Mary Intellectual Property Review*, 4 (1) pp. 3-29, 2014, available at http://www.elgaronline.com/view/journals/qmjip/4-1/qmjip.2014.01.01.xml; and European Commission, Report from the Expert Group, Standardisation in the area of innovation and technological development, notably in the field of Text and Data Mining, 2014, 80 p., available at http://ec.europa.eu/research/innovation-union/pdf/TDM-report_from_the_expert_group-042014.pdf

2. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. Official Journal L 077, 27/03/1996 p. 20-28.

3. Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

4. Summary on Existing Legislation Concerning Intellectual Property in Non-Original Databases, *World Intellectual Property Organisation Standing Committee on Copyright and Related Rights: Eighth Session*, document SCCR/8/3, Sep 13, 2002.

5. Survey led by Creative Commons among its affiliates: http://wiki.creativecommons.org/4.0/Sui generis database rights

6. Catherine Colston, Sui Generis Database Right: Ripe for Review?, *Journal of Information, Law and Technology*, JILT 2001 (3).
epistemological gap between copyright law and scientific effort conceptions of a creative or original effort, the threshold of protection.”<fnref n="7" /> In some cases, to add to complexity, scientific data can be considered as public sector information and/or as geographic or environmental data and therefore, if produced in Europe, submitted to additional Directives offering more possibilities to exclude documents held by research institutions<fnref n="8" /> or to restrict access for reasons related to Intellectual Property Rights or the protection of endangered species<fnref n="9" />.

### 1.3. Contractual and restrictive implementation

Legislation enacted by States is not the only legal instrument to govern the availability of data for access and reuse. Databases can also be regulated by private ordering as data producers have the possibility to apply a license, a contract, or terms of use to their database. Producers have therefore the freedom to reserve all rights on their databases, and disregard potential leeway or users' rights existing in their legislations which would have allowed researchers or just anyone to perform data mining on data they would have been legally accessed to. Access to data is not sufficient in an area of digital processing. Data can only be effectively used and reused if it can be mined. Data mining is understood as the process by which software scanning and crossing data to detect patterns or other interesting feature or knowledge<fnref n="10" />.

The *Licensing for Europe* Text and data mining Working Group<fnref n="11" /> at the European Commission has been following that direction. Indeed, right holders have been asking text and data mining to be submitted to re-licensing for an additional remuneration of texts to libraries, researchers or the public for that purpose. The assumption that re-licensing for text and data mining purposes of already licensed content led consumer, research and libraries organizations to express their disagreement and leave the consultation process<fnref n="12" />. They advocate to clarify that text and datamining can be undertaken for free by those who already benefit from a lawful access. The European

<footnote n="7">7 Melanie Dulong de Rosnay, Andrés Guadamuz, Open Access to Biodiversity Scientific Data: A Comparative Study, *Proceedings of the 17th International Consortium on Applied Bioeconomy Research ICABR Conference on Innovation and the Policy for the Bioeconomy*, Ravello (Italy): June 18 - 21, 2013.</footnote>

<footnote n="8">8 Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, OJ L 345, 31.12.2003, p.90.</footnote>

<footnote n="9">9 Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE), OJ L 108, 25.4.2007; Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information, OJ L 41, 14.2.2003, p. 26–32.</footnote>

<footnote n="10">10 Fayyad U, Piatetsky-Shapiro G, Smyth P, "From Data Mining to Knowledge Discovery in Databases", *AI Magazine* 37, 1996.</footnote>

<footnote n="11">11 http://ec.europa.eu/licences-for-europe-dialogue/node/7</footnote>

<footnote n="12">12 Paul Keller, Open Letter regarding the Commission’s stakeholder dialogue on text and data mining, *Communia blog*, February 27, 2013, http://www.communia-association.org/2013/02/27/open-letter-regarding-the-commissions-stakeholder-dialogue-on-text-and-data-mining/ and Paul Keller, Research sector, SMEs, civil society groups and open access publishers withdraw from Licences for Europe dialogue on text and data mining, *Communia blog*, May 25, 2013. http://www.communia-association.org/2013/05/25/research-sector-smes-civil-society-groups-and-open-access-publishers-withdraw-from-licences-for-europe-dialogue-on-text-and-data-mining/</footnote>
Database Directive does indeed allow some legislations, such as the UK one, to treat content mining
as an infringement or as a grey area¹³. The exception in the database directive article 6 to perform
non-substantial extraction and reuse can be limited to non substantial reuse and granted only "where
there is use for the sole purpose of illustration for teaching or scientific research, as long as the
source is indicated and to the extent justified by the non-commercial purpose to be achieved".
Anyway, Database Directive article 5¹⁴ allows right holders to maintain exclusivity for data mining
to the extend it can be considered as a "repeated and systematic extraction".

**2. Open data policy**

**2.1 The rational for sharing**

Open Access to data is complementary of Open Access for publications. Authors and their
institutions benefit from Open Access to data because they will be able to extract, parse and analyse
data collected by others and potentially process much more information than they would have been
able to produce themselves or for which they would have the time and resource to request
permission and eventually pay royalties. Funding agencies and governments will avoid duplication
of funding for the collection of similar datasets. Companies and NGOs can develop services and
applications from the same data, and citizens can increase their scientific knowledge and education.
Open Access has economic, cultural and democratic benefits, but the main scientific reason to share
data is to allow more researchers to check findings, correct possible mistakes, edit and update
knowledge. Open Access to data as a complement to Open Access to articles they are associated
with will allow other researchers to reproduce the results.

Besides results reproducibility, Open Access also contributes to data archiving. According to a
study on the availability of research data based on 516 studies¹⁵, chances to find the dataset falls by
17% every year from the third year after publication. Most data related to studies of the 1990s
would be permanently lost, due to change of authors contact information and obsolescence of
storage, making it impossible to produce long-term or comparative studies. Archiving and
preservation would be better performed at an institutional or the publishing levels than by the
researchers themselves. But guidelines are needed to ensure that data will be reusable, avoiding
scientists to be “piling their data in fairly unsearchable data repositories because they are forced to
by journal editors or funders.”¹⁶

**2.2 Solutions and recommendations for sharing**

**2.2.1 Open licences**

In order to circumvent possible legislations granting an exclusive right to control the extraction and
the reuse of data, producers may choose to apply terms of use to their database to indicate that they

<footnote>13Guadamuz and Cabell, op. cit.</footnote>

<footnote>14“The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.”</footnote>

<footnote>15Timothy H. Vines, Arianne Y.K. Albert, Rose L. Andrew, Florence Débarre, Dan G. Bock, Michelle T. Franklin, Kimberly J. Gilbert, Jean-Sébastien Moore, Sébastien Renaut, Diana J. Rennison, The Availability of Research Data Declines Rapidly with Article Age, *Current Biology*, 19 December 2013.</footnote>

<footnote>16RJF Melis, H Vehof, L Baars, MC Rietveld, MGM Olde Rikkert, Sharing of research data, *The Lancet*, 10 December 2011, Vol. 378, Issue 9808, Page 1995.</footnote>
will renounce to such rights. Open Access tools such as Creative Commons licensing suite will
allow to mark websites with a set of permissions. But the greatest scope of acts can only be
performed if no rights are attached to the data, and placing them into the public domain will fulfill
these conditions and allow interoperability<fnref n="17" />.

Open Access has been defined by the [Budapest Open Access Initiative (BOAI)](http://wwwBOAI) as the free availability and unrestricted access of research results, meaning without financial, legal or technical barriers. The [revised BOAI recommendations](http://wwwBOAI) recommends research results should therefore be made available without payment, without contractual, legal, or licensing restrictions on use or reuse other than integrity of the data and attribution of the author or contributors. “Libre Open Access” (which combines free access as well as liberal open licensing will be achieved for publications preferably under a Creative Commons Attribution license<fnref n="18" /> or equivalent and for research data with a CC0¹⁹ or equivalent.<fnref n="20" />

As for technical availability, open data should be offered with no technical restrictions which might
prevent data mining and any other automatic processing to download, analyse, filter, index, search,
connect and map datasets in order to detect patterns and results leading to scientific discovery or
correlation of facts. It appears that most data, even in fields claiming to be Open Access and
practice an Open Data policy, remain locked behind legal or technical barriers. A study led in 2008
by the author on a set of 200 databases of life science claiming to be in the public domain revealed
that less than 20% were both legally and technically clearly available for access and reuse<fnref n="21" />. A more
recent research published in 2013 analysed 11000 datasets of the Global Biodiversity Information
Facility (GBIF)<fnref n="22" />, a model institution for the collection and sharing of biodiversity data, showing
that only 10% of them were carrying a license and only 1% an Open Data license. It could be that
datasets could be reused even in the absence of a Public Domain statement, but the presence of a
standard Open Data licence is making it easier for the reuser to assume that any action, including
data mining, can be performed on the data without having to analyse applicable law or check and
understand possibly contradictory or unclear terms of use.

2.2.2 Open Access legislation

<footnote n="17">¹⁷Science Commons. (2011). Science Commons Protocol for implementing open access data.
http://sciencecommons.org/projects/publishing/open-access-data-protocol/</footnote>

<footnote n="18">¹⁸Such as the Creative Commons Attribution 3.0 unported http://creativecommons.org/licenses/by/3.0/</footnote>

<footnote n="19">¹⁹CC0 1.0 Universal (CC0 1.0) Public Domain Dedication
http://creativecommons.org/publicdomain/zero/1.0/</footnote>

<footnote n="20">20 Melanie Dulong de Rosnay, Communia association Position on EC Horizon 2020 Open Access policy, *Communia blog*, 20 November 2012. http://www.communia-association.org/2012/11/20/position-on-ec-horizon-2020-open-access-policy/</footnote>

<footnote n="21">21 Mélanie Dulong de Rosnay, Check Your Data Freedom: Defining a Taxonomy for Access and Reuse of Life Science Data, *Nature Precedings*, July 2008 and Mélanie Dulong de Rosnay, From free culture to open data: technical requirements for open access, in Danièle Bourcier, Pompeu Casanovas, Melanie Dulong de Rosnay, Catharina Maracke (eds.), *Intelligent Multimedia. Sharing Creative Works in a Digital World*, European Press Academic Publishing, Florence, June 2010, pp. 47-66.</footnote>

<footnote n="22">22 Peter Desmet, Analyzing the licenses of all 11,000+ GBIF registered datasets, 22 November 2013,
http://peterdesmet.com/posts/analyzing-gbif-data-licenses.html</footnote>
The contractual solution is based on voluntary contributions. It requires authors to take the decision to use an Open Data licence, or institutions or databases to include in the terms of contributions that authors agree to deposit data under such a licence. Relying on voluntary efforts is not a complete solution, and ends up in fragmenting scientific data, because some will be all rights reserved, some will be in the public domain, and some will be under possible incompatible terms of use, making it impossible for researchers to mix different sources without asking a lawyer to try to clear rights, or exposing them to possible legal risks if rights holders would find out, for instance in a publication, that they reused a database without authorisation and decided to sue. Together with the development of accompanying measures providing effective support and incitation, the best way to ensure data can be reused by researchers is to go beyond contractual solutions and adopt legislations which would be applicable to all. Although there is so far no open data legislation in the world requiring authors to share their data, this section will present efforts which are going in that direction. Mandates can come from different sources: the scientific institution, the funding institution, a recommendation or a law enacted by the state or the European Union.

Open Access institutional mandates require researchers to make the final drafts of their publications available in a repository. Many universities<fnref n="23" /> and research funding institutions<fnref n="24" /> are developing such policies<fnref n="25" />. So far, they are covering scientific articles, but not the underlying data. The perspective of funding mandates for research data is announced with the Open Data pilot of the European Commission Horizon 2020 published in December 2013²⁶. "Research data' refers to information, in particular facts or numbers, collected to be examined and considered and as a basis for reasoning, discussion, or calculation. In a research context, examples of data include statistics, results of experiments, measurements, observations resulting from fieldwork, survey results, interview recordings and images", therefore not only data and databases but also copyrightable elements such as text and images. Metadata associated to the research data and describing it are also included.

It is not a mandate, but an experimentation encouraging the deposit of underlying research data, while there is an obligation to deposit the article. Underlying data are defined as the data necessary to validate the results presented in the scientific publications, including the metadata which it should be possible to access, mine, exploit, reproduce and disseminate free of charge. A suggested way to ensure this is to attach a Creative Commons licence (CC BY or CC0 tool) to the data deposited.

The inclusion of the activity of *mining* has an unfortunate side effect as one can assume that it had to be included in the list of possible actions because it is part of the rights holders exclusive rights. Therefore, a legalist interpretation could be that the European Commission acknowledges that data mining is not always an activity outside of the scope of copyright.

Opt out is possible in many cases, some of which can be subjected to rather broad interpretations, possibly defeating the purpose of the pilot (for confidentiality or security reasons, for personal data, if there is an obligation to protect results if they can be commercially exploited, if the principal

<footnote n="23">²³Including Harvard University, Massachusetts Institute of Technology, University College London, Queensland University of Technology, University of Minho, University of Liege and ETH Zürich</footnote>

<footnote n="24">²⁴Such as National Institutes of Health, Research Councils UK, National Fund for Scientific Research, Wellcome Trust and European Research Council. For more information of the NIH policy, see Carroll. M., Complying with the National Institutes of Health Public Access Policy: Copyright considerations and options, *A joint SPARC/Science Commons/ARL White Paper*, 2008.</footnote>

<footnote n="25">²⁵They are listed at http://roarmap.eprints.org/</footnote>

<footnote n="26">²⁶ Guidelines on Open Access to Scientific Publications and Research Data in Horizon 2020, Version 1.0 , 11 December 2013.
http://ec.europa.eu/research/participants/data/ref/h2020/grants_manual/hi/oa_pilot/h2020-hi-oa-pilot-guide_en.pdf</footnote>
objective of the project is jeopardised, or also for any other legitimate reason). Grantees will be
asked to produce a *Data Management Plan* explaining which data are concerned and how they will
be collected, shared and archived. While these constitute positive accompanying steps of 20% of the
research funded under Horizon 2020 scheme and have been adopted after tough negotiations and
opposition of many stakeholders fearing this would "interfere with the decision to exploit research
results commercially, e.g. through patenting"<fnref n="27" /> (one has to choose patenting or publishing as a first
step), they are not sufficient to ensure that all funded data can be accessible and reused.

Besides data mandates or encouragements by institutions funding the research, recommendations and binding legislations can also be enacted by states. The European Union published several recommendations to support open data²⁸. Policy recommendations to reform European and Member-States copyright legislations include proposals to revoke the database directive and to include content and data mining in the list of exceptions to exclusive rights²⁹. After Spain in 2011, Argentina, Italy, Germany and Peru voted in 2013 legislations mandating open access. They contain restrictions, and in some case no implementation issues, but as first legislations, there is room for improvement and extension.

In Spain, the June 2011 National Law of Science³⁰ established a self archiving requirement not later
than 12 months after publishing. Researchers primarily funded by public institutions were expected
to follow it from December 2011. However, it has never been applied in any project call until
November 2013.<fnref n="31" /> The law contains a final article potentially canceling the effects of this Open
Access archiving mandate. Indeed, it is without prejudice of the agreements which can have
transferred to third parties the rights on the publications, typically the publishers, or when the
results are susceptible of protection. Data are not addressed.

The Peruvian legislation³² adopted in June 2013 also created a central national repository for Open
Access to publications, but also data and statistics. The information should be in Open Access, free
to read, reuse, mine and all necessary acts, but for a non-commercial purposes, which excludes

<footnote n="27">27 Guidelines op cit.</footnote>

<footnote>28European Commission High Level Group on Scientific Data (2010), Final Report to the European Commission, Riding the Wave: How Europe can gain from the rising tide of scientific data. http://ec.europa.eu/information_society/newsroom/cf/itemlongdetail.cfm?item_id=6204
European Commission, Recommendation 2012/417/EU on Access to and preservation of scientific information, OJ L 194, pp. 39-43, 2012. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:194:0039:0043:EN:PDF</footnote>

<footnote>29Guadamuz, op. cit., p. 32 and House of Commons Business, Innovation and Skills Committee, The Hargreaves Review of Intellectual Property: Where next?, First Report of Session 2012–13, 27 June 2012. http://www/publications.parliament.uk/pa/cm201213/cmselect/cmbis/367/367.pdf</footnote>

<footnote>30Ley 14/2011, de 1 de junio, de la Ciencia, la Tecnología y la Innovación, article 37.3. http://noticias.juridicas.com/base facsímil/14-2011.html</footnote>

<footnote n="31">31 Ignasi Labastida, Responsable de la Oficina de Difusión del Conocimeinto de la Universidad de Barcelona, Creative Commons Europe mailing list, 17 December 2013.</footnote>

<footnote>32Peru. Ley N° 30035 que regula el Repositorio Nacional Digital de Ciencia, Tecnología e Innovación de Acceso Abierto fue publicada. http://etd2012.blogspot.com/2013/06/ley-n-30035-que-regula-el-repositorio.html</footnote>
commercial users, and with respect to copyright law, which leaves it unclear whether authors may deposit their work. In the latter case, metadata should still be deposited.

The Argentine legislation³³ of November 2013 requires public research institutions to develop repositories, and publicly funded research to be made available in Open Access repositories within 6 month after publication for the article, and 5 years after collection for the primary data so that other researchers might reuse them. There are exceptions in the case of intellectual property, prior agreements with third parties, confidentiality. The Ministry is expected to provide technical assistance and technical support and institutions which would not comply risk to lose financial support.

The German law³⁴ of October 2013 provides a mandate of self-archiving for non-commercial purposes of the author's final version of articles published in journals issued at least twice a year (only, excluding other formats) and funded for at least 50% publicly, and declares contradictory publishers' agreements void. This last provision is good, but may apply to national publishers only³⁵. The embargo is of a maximum 12 months after publication. Data are not addressed.

The Italian law³⁶ of October 2013 also only targets articles (as opposed to books or other formats) which are publicly in journals which are issued at least twice a year and funded for at least for 50% must be deposited in a non-commercial institutional or disciplinary repository within 18 months after first publication for scientific, technical, and medical disciplines and 24 months for humanities and social sciences, which is longer than acceptable recommendations by the Open Access scientific community. It leaves the implementation to institutions, and does not address the copyright question nor define Open Access. Data are not addressed.

It is crucial in these legislations to provide a correct definition of the scope of the research results covered, of what is Open Access, and address the question of pre-existing copyright agreements and confidentiality. Also, providing implementation means and technical support is key in these legislations. Otherwise, they can remain declarations of good principles supported by repositories acting as empty shells.

### 2.2.3 Technical platforms for Open Data

Examples of good practices of technical platforms for Open Data are being developed in the Netherlands and in the UK.

<footnote>33Argentina. Ley 26899: Creación de Repositorios Digitales Institucionales de Acceso Abierto, Propios o Compartidos. http://repositorios.mincyt.gob.ar/recursos.php</footnote>

<footnote>34Gesetz zur Nutzung verwaister und vergriffener Werke und einer weiteren Änderung des Urheberrechtsgesetzes vom 1.10.2013, BGBl I 2013, 3728. http://www.rechtliches.de/info_UrhG.html</footnote>

<footnote>35Valentina Moscon, Open Access to Scientific Articles: Comparing Italian with German law, Kluwer Copyright blog, 3 December 2013. http://kluwercopyrightblog.com/2013/12/03/open-access-to-scientific-articles-comparing-italian-with-german-law/</footnote>

<footnote>36Legge 7 ottobre 2013, n. 112 Conversione in legge, con modificazioni, del decreto-legge 8 agosto 2013, n. 91, recante disposizioni urgenti per la tutela, la valorizzazione e il rilancio dei beni e delle attivita' culturali e del turismo. (13G00158) (GU n.236 del 8-10-2013). http://www.lexitalia.it/leggi/2013-112.htm</footnote>
In the Netherlands, a data center<fnref n="37" /> and Data Archiving and Networked Services<fnref n="38" /> are available since May 2013 for the deposit and permanent archival of underlying research data while some universities have developed another open source repository for short term archiving by researchers themselves, the Dutch Dataverse Network<fnref n="39" />.

Gateway to research<fnref n="40" /> is a UK portal intended to provide information on all research funded in the UK. It contains data about projects, but not data from projects. It may however be including links to Open Access repositories and data catalogues where they exist. Technical API seem efficient and open, open licensing is addressed with a [Open Government Licence v2.0](http://www.open government.org/licenses/open-government-license-v2.0.html). There is no obligation to deposit data, but rather a declaration of Common Principles on Data Policy: “Publicly funded research data (...) should be made openly available with as few restrictions as possible in a timely and responsible manner that does not harm intellectual property.” Metadata, “legal, ethical and commercial constraints on release” and “a limited period of privileged use” are being considered and data sources acknowledged.

Other private initiatives exist to host research data, mostly repositories at the publishers level. Journals can host data in content management systems linked with publications, and require authors to deposit underlying data and code in order to assess submissions' validity and quality during the publication submission process.<fnref n="41" /> The evolution of this procedure has been studied for the computer science discipline towards results reproducibility, as more and more journals provide repositories for data and/or mandate the deposit of underlying data at the same time than the submission of the article<fnref n="42" />. The Joint Data Archiving Policy<fnref n="43" /> requires as a condition to be published in several evolution journals including Nature and PLOS to deposit underlying data in a repository. Data repositories<fnref n="44" /> and the publication of data papers<fnref n="45" /> are being developed, in order to recognise the contribution to databases and not only the publication of scientific papers. Data citation protocols are expected to provide an incentive for authors to share their data and for reusers to attribute them correctly and seamlessly.

<footnote n="37">37 http://data.3tu.nl/repository/</footnote>

<footnote n="38">38 http://www.dans.knaw.nl/</footnote>

<footnote n="39">39 https://www.dataverse.nl/dvn/</footnote>

<footnote n="40">40 The beta website should be replaced by a full working application at the end of 2013.</footnote>

<footnote n="41">41 http://www.communia-association.org/2012/11/20/position-on-ec-horizon-2020-open-access-policy/</footnote>

<footnote n="42">42 V. Stodden, P. Guo and Z. Ma, "How Journals are Adopting Open Data and Code Policies," The First Global Thematic IASC Conference on the Knowledge Commons: Governing Pooled Knowledge Resources, Louvain-la-Neuve, Belgium, Sept 12, 2012. http://www.stanford.edu/~vcs/papers/IASC2012-STODDEN-Sept122012.pdf</footnote>

<footnote n="43">43 http://datadryad.org/pages/jdap</footnote>

<footnote n="44">44 http://www figshare com</footnote>

<footnote n="45">45 In the biodiversity community: Chavan, V. S., & Ingwersen, P. (2009). “Towards a data publishing framework for primary biodiversity data: challenges and potentials for the biodiversity informatics community”. BMC Bioinformatics, 10 Suppl 14, S2. http://www.biomedcentral.com/1471-2105/10/S14/S2. Chavan, V., & Penev, L. (2011). “The data paper: a mechanism to incentivize data publishing in biodiversity science”. BMC Bioinformatics, 12 Suppl 15, S2. http://www.biomedcentral.com/1471-2105/12/S15/S2</footnote>
## 2.3 Big data and privacy: the risks of sharing

In the more limited context of citizen science and open data sharing practices, some users knowingly and voluntarily share their own data, on health or on other topics. The aggregation and mining of data contributed by the users themselves in these quantified self practices create a risk of reidentification<fnref n="46" />, from correlation until profile deduction, making privacy and confidentiality difficult to enforce legally. Contextualised privacy solutions<fnref n="47" /> and consent protocols<fnref n="48" /> are being developed. But the risk of exclusion, for instance of insurance companies, remains. The 2012 project of European regulation on data protection foresees that information given to citizens on the processing of their personal data should be transparent and in clear language in order to guarantee an informed consent to share within a specific context; requirements on data portability are also planned<fnref n="49" />.

## Conclusion

The discrepancies between the techno-legal framework and the requirements of researchers' applications to process data, perform queries, mining, visualization or other analysis tasks without restriction indicate points of frictions which should be solved. The framework and opportunities for data sharing show that the legal and policy measures requiring the deposit of data must be accompanied by a technical infrastructure to host research data. In some years after the first experiences, it is likely that copyright and technical obstacles to data sharing will have been corrected. Most important current issues of Text and Data Mining identified by the author in a response to the Public Consultation on the review of the EU copyright rules<fnref n="50" /> are attribution, non commercial and share alike licensing requirements, the lack of definition of data, the framing of Text and Data Mining as an exception instead of a right and technical restrictions.
Some of the ethical risks of data sharing have been identified by the legislations promoting or mandating open data, excepting when confidential or personal data are concerned. The risks of these exceptions to open access principles are the usage of intellectual property or confidentiality reasons without more details, leaving room for too much interpretation and legal insecurity. A chilling effect can also be caused by an over extensive interpretation of confidentiality, causing an impossibility to take advantage of the knowledge to be deduced from big data. Legal solutions to preserve personal rights against the collection and processing of their own data are the extension of

<footnote n="46">46 Crawford K. 2013. The hidden biases in big data. http://blogs.hbr.org/2013/04/the-hidden-biases-in-big-data/ Sweeney L, Abu A, Winn J. 2013. Identifying Participants in the Personal Genome Project by Name. Working paper. Harvard University. http://dataprivacylab.org/projects/pgp/1021-1.pdf</footnote>

<footnote n="47">47 H. Nissenbaum, "A Contextual Approach to Privacy Online," *Daedalus* 140 (4), Fall 2011: 32-48.</footnote>

<footnote n="48">48 For health data, see Consent to research at http://weconsent.us/, for web data, see the Algopol project protocol to collect Facebook data: Irène Bastard, Dominique Cardon, Guilhem Fouetillou, Christophe Prieur, Stéphane Raux, Travail et travailleurs de la donnée, *InternetActu*, 13 Decembre 2013. http://www.internetactu.net/2013/12/13/travail-et-travailleurs-de-la-donnee/</footnote>

<footnote n="49">49 Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), Brussels, 25.1.2012, COM(2012) 11 final. http://ec.europa.eu/justice/newsroom/data-protection/news/120125_en.htm</footnote>

<footnote n="50">50 http://www.communia-association.org/2014/03/05/communia-responds-to-eu-consultation-on-new-copyright-rules/; http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm</footnote>
moral right of personality, towards the ownership on your own data associated to the dedication the output of data mining to the commons.