Who owns research data? A practical guide to usage rights
Research data is valuable – but its use is often restricted by copyright, related rights or industrial property rights. Anyone who wants to work with legal certainty should be familiar with the applicable rules. You can find the most important tips here.
Research data is considered the foundation of scientific work – but who is actually allowed to use, publish or commercially exploit it? This question is more complex than it may appear at first glance. A recent practical guide published by Kehl University of Applied Sciences, developed in cooperation with the law firm Maucher Jenkins, highlights what researchers should pay attention to.
Not all data is protected in the same way
Individual facts or raw data are not subject to legal protection. Usage restrictions primarily arise from contracts, for example with cooperation partners or third-party funding bodies. However, if data is presented in the form of a collection, database or visualised format (e.g. charts, software), intellectual property rights may arise.
Copyright: creative input is decisive
Copyright protection only applies where a “personal intellectual creation” exists – in other words, a certain level of creative originality. A simple list of data or a basic chart does not meet this threshold. More complex visualisations or scientific presentations that convey information in an original form, however, may be protected. Important: only the form of presentation is protected, not the underlying information.
Related rights: often more relevant in practice
In research, related rights often play a more significant role than classic copyright. These include, for example:
• Database producer’s rights (§ 87a et seq. German Copyright Act): Protect investments in systematic data collections. Portions of a database may be used for research and teaching purposes – full replication, however, is not permitted.
• Photographic works (§ 72 German Copyright Act): All photographs, X-ray or CT images are protected, even without a particular creative achievement. Purely virtual images (CAD models, simulations) do not fall under this protection.
• Scientific editions (§ 70 German Copyright Act): Editions of older works that are no longer protected may themselves be protected if they involve scientific editing.
Industrial property rights: patents, trademarks, designs
Patents may also be relevant to research data – for example in technical fields or where data collection is based on a patented process. Anyone who has made an invention should postpone publication of the data until after filing a patent application, otherwise novelty may be lost.
• Design protection is intended for aesthetic creations and is generally of limited relevance for research data.
• Trademark rights become relevant if data or datasets are offered under a protected name.
Collaboration: clarify rights at an early stage
Especially in collaborative projects, it is essential to clarify the exploitation rights relating to so-called background and foreground IP at an early stage. Companies typically focus on commercial exploitation, while universities prioritise publication. A clear contractual arrangement can reconcile both interests.
Conclusion
Researchers should not only consider usage rights at the time of publication. From the very beginning of a project, the following applies: clarify rights, enter into agreements and review patentability. This is the only way to ensure that data can be used and shared in a legally secure manner – while at the same time opening up new opportunities for publication and commercial exploitation.
The full practical guide with hands-on decision-making aids can be found here.
