Can data be considered Intellectual Property?
Under the U.S, EU, and Commonwealth Law, data is considered ‘facts’. This represents information that has been discovered , however, not created as original works. Data therefore may not benefit from intellectual property law protection strictly on the face of it, specifically where they are non-registrable. Fortunately, the dynamic nature of the umbrella of intellectual property rights and protections via processing may be utilized to protect proprietary information and ensure proper attribution. Therefore rights and the protection of them thereof do not only lie in what is registered.
Although data itself cannot be copyrighted, one may be able to own copyright in the compilation of data. Creative arrangement, annotation or selection of data may be protected by copyright, patent or any other appropriate intellectual property rights protections where this arrangement leads to new and useful inventions such as machines, processes, manufacture or improvements. Data may be protected by trade secrets where a formula, process, design or method offers a commercial advantage. For additional safeguarding, contracts or grants are initiated with non-disclosure agreements or other conditions requiring secrecy. As a general rule some elements of data remain protected under General Data Protection Regulation (GDPR), Health Insurance Portability and Accountability Act (HIPAA), The Family Educational Rights and Privacy Act (FERPA) or Institutional Review Board (IRB) , also known as an independent ethics committee considerations. This is to ensure that the rights of people, data, systems, services and infrastructure are consistently protected.
Important Considerations
With respect to IPR aspects of data it is important to answer the following questions:
1. Where will this data be stored?
2. How will this data be processed?
3. When will this data be shared?
4. With whom should this data be shared?
5. What aspects of this data cannot be shared?
6. How will access to the data be provided and for how long?
To ensure proper management of intellectual property in data and data loss prevention, various tools may be implemented to assist in supplementing research and enabling collaboration. This is to mitigate against any harms that may result from unprotected data transfer whether through serial or parallel transmission. These include but are not limited to:
- Open Data Commons
- Creative Commons (CCO/CCZero)
- Project Open Data (Managing information as an asset class)
- Open Science Framework (Highly recommended based on integrations like SSO , Incommon, Authentication, Discovery, Storage, Zotero, Google drive, References, ORCID, and Mendeley to name a few) which helps make workflow more efficient.
Standards
This approach helps practitioners comply with specific standards while undertaking their business purpose.These may include any or all of the following which affects processes, products, services, practices and integration:
- Environmental standards
- Wireless network security standards
- Food and drug standards
- Occupational health and safety standards
- Quality assurance standards
- Building codes
- Legal and ethical standards
Jurisdiction
This article gives a brief synopsis of three (3) popular jurisdictions where a similar approach to the protection of IPR in data is applied, however, it would be amatuer to assume that local and regional businesses only trade with themselves and are not ambitious enough to explore outside of the named regions for greater entrepreneurial gains. Rules of origin play an important role as to how they apply to products, services, processes and integration. All of this directly or indirectly affects revenue and any profits realized. Like debt, tax is sure, therefore in leveraging any type of intellectual property through data, advantageous tariffs must be considered.
Outside of preferential tariffs under free trade agreements or other schemes, or tariffs charged inside quotas; ad valorem tariffs (charged as a percentage of the value of the item), specific tariffs (charge levied based on a set fee per number of items or by weight) or Most favoured nation (MFN Tariffs) (a normal non-discriminatory tariff charged on imports to members of the WTO) all of which are usually directive in helping businesses choose how to make strategic alliances.
So can data be considered intellectual property, short answer: YES!
Businesses are therefore encouraged to have as apart of their key considerations: data licensing, data ownership and use, derived data, scope of license rights and exclusivity, sublicensing, data delivery, data confidentiality and security, data audits and controls, disclaimers, representations, warranties, and indemnification.
The information provided on this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this article are for general informational purposes only.
