Public Domain; Public Interest; Public Funding: focussing on the ‘three Ps’ in scientific research
Dr
Charlotte Waelde and Mags McGinley*
1. Introduction
As a
result of legislative changes, IPRs have become broader, stronger and
longer. Copyright and the sui generis database right, the IPRs of
particular relevance to this paper, are no exception. Over the last
ten years the contours of existing rights have altered and new rights
have been created. One effect of these changes has been a diminution
of the public domain. In other words, the power exercisable by right
holders has expanded, while the room for manoeuvre by those seeking
to use ‘free’ elements has diminished. In this way
drawing on what has gone before, becomes both more difficult and more
costly: more difficult because more of what is currently created is
owned, and therefore may not be re-used without permission; more
costly because seeking permission to re-use works carries with it
transaction costs, and may also entail a payment for use.
These developments have been greeted with alarm in some quarters, most notably by academic commentators working in the legal field, and with some understanding of the problematic issues involved. But the murmurings are spreading to other interest groups including those engaged in scientific research who are becoming more aware of the considerable implications of the expansion of these intellectual property rights for their work. As a result, appeals to ‘the public interest’ are growing, with questions being asked as to whether the placing of scientific data into the realm of private property, whether through copyright fences or (over) extensive claims made in relation to the contents of databases, is the antithesis of the needs of those who would ensure progress through scientific research. This is most particularly so where it is the public purse that has funded the research results and enabled the ‘discovery’ of the data.
The purpose of this paper is to discuss those ‘three Ps’: it is (i) to examine some of the difficulties faced by scientists engaged in scientific research who may have problems working within the constraints of current copyright and database legislation, where property claims can place obstacles in the way of research, in other words, the public domain; (ii) to look at perceptions of the public interest and ask whether copyright and the database right reflect understandings of how this concept should operate; (iii) to consider the relevance of public funding for scientific research in the context of both the public domain and of the public interest. Finally, some recent initiatives seeking to change the contours of the legal framework will be examined; initiatives based on ideals of the public domain and the public interest in the scientific sector, and which have public funding as a common factor.
2. The public domain – a lawyer’s view
‘All authorship is fertilised by the work of prior authors and the echoes of old work in new work extend beyond ideas and concepts to a wealth of expressive details.’1
Any
process of creation depends not only on the existence of a wide
variety of sources on which a creator can draw, but also upon the
accessibility and re-usability of those sources. In this process,
works are often cumulative. Innovations build on each other and
research activity is directed towards improvement or application of
previous discoveries or works. Sometimes works are sufficiently
original to represent a true breakthrough but usually ‘new’
works are based upon what has gone before.2
To facilitate this process of creation, the law sets limits on the
property right granted in respect of both copyright and the database
right. So, for example, the term of both rights is limited3;
neither ideas nor data are protected, but only the expression of
those ideas4
or collation of that data;5
a work protected by copyright must be original6
before it will be protected, leaving certain elements beyond the
scope of the law; a database must be the subject of the relevant
investment before the sui generis rights will arise;7
for both, takings of insubstantial parts are permitted,8
as is fair dealing for the purposes of non-commercial research.9
In this way, the law mediates between absolute property rights and
the commons. Having a mixture of works available means that more
works can be produced, drawing upon the sum of existing scientific
knowledge. In developing works, scientists do not have to start from
scratch every time; rather they can enlarge, extend, sometimes
retract and retrench on what has gone before. It is the limits on
copyright and database rights that lawyers generally collectively
refer to as the public domain:10
‘[t]he public domain is the law’s primary safeguard of
the raw material that makes authorship possible.’11
3. Copyright fencing
For
some, the size, accessibility and re-usability of the public domain
may be more critical than for others. Take the example of a
self-employed creative author beavering away in her study, writing
original literary novels to great acclaim. The need to extract from
the public domain may not actually be very important to this
individual. Often, the greater the originality of the work, the
greater the approval for the author. Ideas certainly will be
important, gleaned perhaps from having access to a wide variety of
artistic and literary output. But actual takings from others are
likely to be minimal. Indeed, such an author might seek to diminish
the existing public domain. What interest does she have in her work
falling into the general public domain 70 years after her death?12
Why shouldn’t some payment be made for takings after this
period perhaps to be contributed to the general welfare of up and
coming authors?13
Why should third parties be able to quote from her work without
payment? She might think it enough that her work is in the public
domain once published in the sense that her ideas are available to
all who care to read her work. Is that not enough? Certainly she
will want attribution.14
This will be essential to furtherance of her career while alive and
to mark ‘her’ work out from the generality in life and
after death. Copyright will be of relevance to enable her and her
successors to command some return from the consuming public and to
protect her property.
But
look across the spectrum; to the research world where full time
employees in publicly funded institutions use public money in pursuit
of research agendas the outcomes of which ultimately should further
the public interest. Within this environment academics from
different disciplines tend to work in different ways. Lawyers, for
instance are rather solitary creatures when it comes to research.
Certainly they might come together in events, such as conferences and
colloquia, to discuss the fruits of research, or to garner new ideas;
or they might discuss and write articles jointly with colleagues. In
so doing the lawyer needs access to a wide variety of literature:
whether journal articles, books, statutes, case law or other sources
of inspiration. These works are required to buttress and support
legal argument. Access to the works is essential, but does (or
should) the academic lawyer really take more than what might
be considered to be in the legal public domain? Attribution is of
course essential for furtherance of an academic career, but much less
so for carving out rights. These will be more important to the
publishing industry which, in the academic field, has historically
operated by taking assignations of copyright from the author which it
has, in turn, exploited in furtherance of their own commercial
operations.
Science,
as an academic discipline is different again. Scientific research is
a highly collaborative endeavour. From spatial organisation to
actual input into a publication; from many scientists gathered around
one computer to names on research papers; the research efforts are
incremental, joint15
and combine the efforts of many individuals pursuing a common goal.
Further, it is not only scientists from single institutions who
engage in the scientific process, but they do so across institutions,
and indeed across borders. Scientists are excellent at organising
and attending informal and formal gatherings at which ideas are
discussed and tested, as indeed are the practical applications.
Further, the work of the scientists is unlikely ever to be ‘finished’
in the way that a self-employed author’s book or an academic
lawyer’s article is finished. One only has to consider the
different versions of software that are produced and disseminated –
each one (supposedly) better than the last. Each builds on what went
before and that building will no doubt go on and on.
But
there are ironies in the legal framework as it applies to science, in
particular what some call ‘Big Science’.16
Scientific authorship means seeking to buttress claims by taking as
much as possible from the existing body of scientific literature.
Quite unlike the work of the self-employed creative author, the
progress of science depends upon being grounded in what has gone
before. And although a scientist will need to be recognised on any
research paper, that appears to be much more about responsibilities
than it is about rights.17
Nonetheless the academic process and assertion of authorship entail
claims being made over the results:18
‘Fencing off the public domain and taking it to the realm of private property through authorship might be smart if you want to commercialise the results but it is plainly a self defeating tactic if the claim you are putting forward is not about property, and if it can bring you credit only by being endorsed, used and cited (but not bought as property) by your peers.’19
Further,
the extent to which copyright should protect the fruits of the
scientific process is questionable. The value, both for the
scientist and for science, lies in the scientific claims, ideas or
facts which are themselves not capable of being protected by
copyright: ‘consequently it cannot be the scientists’
property.’20
Yet this is precisely the way in which scientific publications are
treated. They are wrapped the cloak of copyright protection, rights
are assigned to publishers, who will in turn publish in journals
available to those who can afford access.
Accordingly,
in science the application of copyright and the resulting public
domain seem out of line with the requirements of its users. A
scientific researcher would appear to need to take more from existing
works than the legal public domain might allow, but in return would
need to, and it would appear from the scientific process be happy to,
donate more to it. Science is a culture that invites, relishes and
thrives on collaborative working environments. Using copyright to
maintain proprietary claims over one’s own work and, in so
doing, diminish the public domain seems the antithesis of this
process.
4. Databases and Science
It is hard perhaps for the lawyer to appreciate the extent to which science depends on the collection of data and other information, and the subsequent re-use of that material.21 Lawyers might be familiar with databases. Lexis and Westlaw are well-known examples in the legal field. The academic lawyer will, of course, wish to access and re-utilise contents of such databases in their own ‘new’ creations. But the extent to which they do so might be limited. Academic lawyers after all, like to consider themselves to be original at least in some senses of the word. For science it is quite different. Data and other information is generated on an exponential basis, and held within vast databases. The progress of science depends on the re-use of that data for a variety of purposes. It can also be hard for the non-scientist to appreciate the size and importance of these databases to the scientific community. Useful examples have been given by Hey and Trefethen in their paper The Data Deluge: An e-Science Perspective:22
‘in the field
of engineering, consider the problem of health monitoring of
industrial equipment. The UK e-Science programme has funded the DAME
project - a consortium analyzing sensor data generated by Rolls Royce
aero-engines. It is estimated that there are around 100,000 Rolls
Royce engines currently in service. Each trans-Atlantic flight made
by each engine, for example, generates about a Gigabyte of data per
engine – from pressure, temperature and vibration sensors. The
goal of the project is to transmit a small subset of this primary
data for analysis and comparison with engine data stored in three
data centres around the world. By identifying the early onset of
problems, Rolls Royce hope to be able to lengthen the period between
scheduled maintenance periods thus increasing profitability. The
engine sensors will generate many Petabytes of data per year and
decisions need to be taken in real-time as to how much data to
analyse, how much to transmit for further analysis and how much to
archive. Similar (or larger) data volumes will be generated by other
high-throughput sensor experiments in fields such as environmental
and earth observation, and of course human health-care monitoring.
A
second example from the field of bioinformatics …. It is
estimated that human genome DNA contains around 3.2 Gbases which
translates to only about a Gigabyte of information. However, when we
add to this gene sequence data, data on the 100,000 or so translated
proteins and the 32,000,000 amino acids, the relevant data volume
expands to the order of 200 Gigabytes. If, in addition, we include
X-ray structure measurements of these proteins, the data volume
required expands dramatically to several Petabytes, assuming only one
structure per protein. This volume expands yet again when we include
data about the possible drug targets for each protein – to
possibly as many as 1000 data sets per protein. And there is still
another dimension of data required when genetic variations of the
human genome are explored. To illustrate this bioinformatic data
problem in another way, let us look at just one of the technologies
involved in generating such data generation. Consider the production
of X-ray data by the present generation of electron synchroton
accelerators. At 3 seconds per image and 1,200 images per hour, each
experimental station generates about 1 Terabyte of X-ray data per
day.’
For those unfamiliar with the terminology, a useful comparison is given:
|
A Large Novel |
1 Mbyte |
|
The Bible |
5 Mbytes |
|
A Mozart Symphony (compressed) |
10 Mbytes |
|
OED on CD |
500 Mbytes |
|
Digital Movie (compressed) |
10 Gbytes |
|
Annual production of refereed journal literature (~20k journals; ~2M articles) |
1 Tbyte |
|
Library of Congress |
20 Tbytes |
|
The Internet Archive |
(10B pages) |
|
(From 1996 to 2002) |
100 Tbytes |
|
Annual production of information (print, film, optical & magnetic media) |
1500 Pbytes |
The conclusion from the examples given is that ‘e-Science data generated from sensors, satellites, high-performance computer simulations, high-throughput devices, scientific images and so on will soon dwarf all of the scientific data collected in the whole history of scientific exploration.’
While these examples illustrate the volume of data being generated and collected within databases, they also, by implication, carry the message that the scientist depends on access to and re-utilisation of the data so collected to advance scientific knowledge.23 It is here that the database right has the potential to cause problems, as has the practice of ‘locking’ data within private databases to which the key may be available only at a price.
4.1 Database Directive
In
1996 in the press release promulgated at the time that the Database
Directive was agreed in Europe, the then Single Market Commissioner
Mario Monti said, ‘[t]his innovative and comprehensive
measure will ensure an appropriate level of protection for database
makers and investors throughout the EU.’ It was further
stated in that document that ‘the Directive strikes a
balance between the interests of the manufacturers of databases and
the legitimate interests of their users. Particular account has been
taken of situations in which the extraction of contents of databases
is required for … scientific research.’ 24
Two years later, Jans Gaster, one of its ‘godfathers’
(his own word) said of the right: ‘evaluation of court
decisions in database cases has shown that against all odds no
particular problems have arisen in the Member States in applying the
Directive in practice.’25
In 2003, by contrast, the Royal Society said of the database right
in a report Keeping Science Open: the effects of intellectual
property policy on the conduct of science (hereafter Keeping
Science Open): ‘the fair dealing exception under UK
law, in line with the EC Directive permits only extraction and not
re-utilisation. Re-utilisation is an essential part of scientific
endeavour, and so this limitation does not address the scientific
community’s needs. The effects of these limitations are
difficult to assess quantitatively but in our view they will in the
longer term if vigorously enforced become a serious impediment to
scientific research and hence to the national interest.’26
So
what is the reality? A key concern in relation to the Database
Directive has been a perception that the sui generis right seems
close to the grant of an intellectual property right in data and
information per se, allowing only limited extractions for the
purposes of non-commercial research. The result is that scientists
may suffer restrictions on access to, and ability to re-use the raw
data necessary for scientific progress.27
In other words, it may represent a further, and significant,
restriction on the public domain. But what then might the exceptions
under the Database Directive permit? The rights of the maker of the
database are to prevent the extraction28
and re-utilisation29
of the whole or a substantial part30
of the contents of the database. A scientist can extract and
re-utilise an insubstantial part of the contents of the database
without permission and substantial parts without permission for the
purposes of non-commercial research31
(assuming always that access can be gained). What then amounts to
extraction and re-utilisation and what is insubstantial? Although a
number of cases have been heard before courts of Member States
concerning various aspects of the Database Directive, it was only in
November 2004 that the European Court of Justice (ECJ) was given the
opportunity to pass judgement on questions of the interpretation of
aspects of the Directive referred to it in four cases.32
Of these cases, one concerns details of horseracing fixtures,33
the three others details of football league matches.34
It
should be said at the outset that the judgements handed down by the
ECJ have come as a surprise to many commentators. The worries that
the rights might go so far as to attach to data themselves were not
allayed by the line taken by the Advocate General Stix-Hackl (AG) in
her opinions, published in June 2004. The ECJ often follows the
opinion of the AG, but not in these cases. Instead the ECJ may have
been driven by the concern that an over-broad interpretation of the
Directive could result in the data themselves being the subject of
property rights. In rejecting such a view, the ECJ, while taking a
wide view of what falls under the definition of a database in the
Directive, has both substantially narrowed which of those databases
will qualify for the sui generis rights of extraction and
re-utilisation, and set a high threshold on what will qualify as a
substantial part for the purpose of infringement of the rights.
4.2 Database: definition
The
definition of a database in the Directive refers to ‘a
collection of independent works, data or other materials arranged in
a systematic or methodical way and individually accessible by
electronic or other means.’35
This covers both on and off-line databases. In one of the cases
referred to the ECJ, Fixtures Marketing v Organismoa Prognostikon
Agnon Podosfairou (hereafter OPAP),36
the court, while confirming the breadth of the definition,
emphasised that the independent materials must be systematically or
methodically arranged and individually accessible and include
technical means ‘such as electronic, electromagnetic or
electro optical processes’ to enable the retrieval of
independent materials, or in the case of a non-electronic base, an
index or table of contents.37
Thus the fundamental requirements for qualification would appear to
be the inclusion of a means of retrieving its constituent materials,
and the works and data must be separable without the value of the
contents being affected.38
But although a collection of data might fall within this definition, it does not follow that the maker will qualify for the sui generis right. Set against the purpose of the Directive which is to protect the investment in the obtaining, verification or presentation of data, the ECJ has sought to draw a distinction between the investment needed in the creation of the data per se, from the investment needed in the creation of the database. Only the maker of those databases or parts of databases in which substantial investment (in the form of financial resources and/or time, effort and energy39) has been expended in the obtaining, verification or presentation of the information will qualify for the sui generis right.
4.2.1 Obtaining
In referring to the investment needed in obtaining the contents of the database the ECJ said that this ‘must be understood to refer to the resources used to seek out existing independent materials and collect them in the database and not [emphasis added] to resources used for the creation as such of independent materials.’40 So the materials to be placed in the database must already exist as independent materials. Only when those materials exist, and thereafter investment is expended in the collection of those materials, will this criterion be met. Of course it is far from easy to distinguish investment in the creation of material from investment in obtaining or collation in particular where the same body or person is responsible for the two activities. In British Horseracing Board v William Hill (hereafter BHB)41 the database in question comprised inter alia information on over one million horses, and in particular pre-race information on races held in the UK. The latter information includes the name, place and date of the race concerned, the distance over which the race is to be run, the criteria for eligibility to enter the race, the date by which entries must be received, the entry fee payable and the amount of money the racecourse is to contribute to the prize money. When trying to find the line between the creation and the collation of the data, the ECJ said that the investment in the selection, for the purpose of organising horse racing, of the horses admitted to run in a race related to the creation of the data which make up the lists for those races which appear in the BHB database.42 Thus the investment by BHB in that activity was not relevant when considering the criterion of obtaining.
4.2.2 Verification
As part of this ‘creation’ of the data, BHB (or at least the company who carried out this work) had set up a call centre manned by about 30 operators who record telephone calls entering horses in each race. This was followed by checks to ensure the identity and status of the person entering the horse. Thereafter, and to take part in the race, the trainer must confirm the horse’s participation by telephone by declaring it the day before the race. The operators need to ascertain the horse can be authorised to run the race. A central computer allocates a saddle cloth number to each horse and determines the stall from which it will start with the final list of runners being published the day before the race.43 This activity is aimed at verifying the accuracy of the data, but according to the ECJ such checks were made at the stage of creating the list for the race in question and thus constituted investment in the creation of the data and not in the verification of the contents of the database when in existence.44
4.2.2 Presentation
Finally
on the investment required for the presentation of the contents of
the database, this was raised in OPAP. In that case it was
said that the expression ‘investment in the presentation of
the contents of the database’ concerns ‘the
resources used for the purpose of giving the database its function of
processing information, that is to say those used for the systematic
or methodical arrangement of the materials contained in that database
and the organisation of their individual accessibility.’
The ECJ went on to say (rather unhelpfully) that the ‘presentation
of a football fixture list … is closely linked to the creation
as such of the data which make up the list. It cannot therefore be
considered to require investment independent of the investment in the
creation of the data.’45
4.3 Application of the ECJ’s
decision to scientific databases
So
what then of the investment in scientific databases? It would seem
that, at least initially, much investment will be directed towards
the creation of data rather than the obtaining or collation of that
which exists. Does this then mean that the criterion of ‘obtaining’
will not be met, at least by data creators? The overlap between
creation and collation was acknowledged in the national court in BHB
where it was recognised that there may be difficulty in separating
the investment in creation from investment in collation particularly
where one body is responsible for the two activities: ‘As
one would expect, effort put into creating the actual data which is
subsequently collected together in the database is irrelevant. …
On the other hand, the efforts which go into gathering all the data
together, including the dates of fixtures, is relevant. … In
practice, where one person both creates the underlying data and
gathers it together, as BHB does, it may be difficult to draw a sharp
dividing line between the two activities.’46
This was echoed by the AG in her opinion given on 4 June.47
By comparison, the ECJ seems to have come down strongly in favour of
the view that the two activities can be separated, and it is only by
virtue of the relevant investment in the second, that the criterion
for subsistence of the database right will be met.
But
this raises further anomalies and complications. If the scientist
who ‘discovers’ data for inclusion in a database is
funded externally, for instance through one of the research councils
in the UK, might that enable the funding council to qualify for the
right through meeting the requirement of obtaining? Here it would
seem that the link between the investment required for obtaining that
data, and the actual creation of the data, might be broken. Even if
it was thought the investment in those circumstances was directed
towards the creation of the data, might it be possible to develop a
model whereby the scientists create the data, but then a third party
would invest in purchasing or, in the words of the Directive,
obtaining that data once discovered? Such an approach would lead to
the development of complex contractual matrices designed to ensure
that someone can qualify for the right.
And
what of verification and presentation of the contents? The sui
generis right does not extend to computer programs used in the making
or operation of a database,48
so beyond that what might amount to verification and presentation in
scientific databases? Much verification of data must go on prior to
its inclusion in a database; how much then occurs once encompassed
within it? Certainly issues of provenance are of great concern to
scientists, especially when data moves between databases: where has
data come from, what operations have been performed on the data, when
and by whom? Could such investment where relevant to any particular
database be considered as directed towards those types of
verification activities that qualify the maker for the sui generis
right? Presentation is equally as tricky. Clearly data within
databases need to be presented in a form that is usable for other
scientists and in so doing huge amounts of metadata can be generated.
But to what extent might such presentation of the contents result
from the operation of a computer program and thus be inapplicable in
determining the subsistence of the right?
Suffice
it to say many questions remain over the extent to which scientific
databases might qualify for the sui generis right. Whereas at first
blush it might have appeared that many might fall outwith the
necessary criteria, most particularly because of the definition the
ECJ has given to ‘obtaining’, it is far too early to
argue that the contents of scientific databases fall into the public
domain as a result of the ruling, however much that might benefit
scientists and the progress of science.
4.4 Extraction and re-utilisation
Assuming
that the investment in at least some scientific databases will meet
the necessary criteria, the maker will qualify for the sui generis
right to prevent unauthorised extraction or re-utilisation of the
whole or of a substantial part of the contents of the database.49
The Database Directive defines ‘extraction’ as the
permanent or temporary transfer of all or a substantial part of the
contents of a database to another medium by any means or in any
form,50
and ‘re-utilisation’ to mean any form of making available
to the public all or a substantial part of the contents of a database
by the distribution of copies, by renting, by on-line or other forms
of transmission.51
So
what is the scope of these rights? Suppose a scientist received the
required data from a third party, rather than extracting it directly
from the database. Will she infringe? Is the re-utilisation right
exhausted once the contents of a database have first been made
available to the public, so any subsequent use would not infringe? A
narrow interpretation would mean that science could continue
unfettered by proprietary claims by database makers: so only direct
extraction would infringe and the scientist could re-utilise the
contents of the database freely after the first time those contents
had been made available to the public. Conversely a broad definition
might create problems: the extraction right would be infringed if a
substantial part originally derived from the database, no matter the
source for the end user; and takings from a copy of a database made
available to the public would continue to infringe – in other
words the right would not be exhausted.
In
BHB the ECJ said that, as acts of unauthorised extraction and
re-utilisation from a source other than the database concerned ‘are
liable … to prejudice the investment of the maker of the
database, …direct access to the database was not a
prerequisite’ for infringement of the rights.52
Further, while the sui generis right does not extend to cover
consultation of a database,53
nonetheless the consent of the maker of the database to consultation
does not entail exhaustion of the right. Thus, it does not matter
whether the data are extracted or re-utilised directly from the
database, or through the medium of a third party. If a substantial
part of the contents of a protected base are in issue, then the
rights of extraction and re-utilisation will be infringed no matter
the source of the data. At first blush, and despite the seeming
concern of the ECJ that the rights should not be over extensive, this
might seem that the rights could extend to data per se. However, an
important proviso is that the rights of extraction and re-utilisation
only attach to a substantial part of the contents of a database.
Extraction and re-utilisation of insubstantial parts do not infringe.
What then is a substantial part? Or, to put it another way, what is
an insubstantial part of a database?
4.5 Insubstantial/Substantial part
A
typical question from a scientist might be what percentage of the
contents of a database amounts to being insubstantial? One third of
the contents? One half? In other words, how much falls into the
public domain? But any answer is not as simple as a fixed figure.
The test for determining what is substantial is both quantitative and
qualitative.54
The
ECJ has said that a substantial part evaluated quantitatively
refers to the volume of data extracted from the database and must be
assessed in relation to the volume of the contents of the whole of
that database. If a user extracts and/or re-utilises a
quantitatively significant part of the contents of a database whose
creation required the deployment of substantial resources, the
investment in the extracted or re-utilised part is proportionately
equally substantial.55
At first blush this might seem as if the part extracted must be
judged by the size of the database as a whole. Indeed, in BHB
despite having suggested that the investment was in the creation of
the data per se, the ECJ went on to comment that the extraction by
William Hill of the names of the horses running in a particular race,
the date, the time and/or name of the race and the name of the
racecourse did not constitute a substantial part evaluated
quantitatively – being only ‘a very small proportion’
of the whole of the database. So how much is substantial? The ECJ
did not quote a figure or percentage in this part of the judgement.
However, when considering the test for when the ‘repeated
and systematic extraction and/or re-utilisation of insubstantial
parts of the contents of the database’56
would infringe the sui generis right, the ECJ said that this measure
‘prohibits acts of extraction … which could lead to
the reconstitution of the database as a whole, or at the very least a
substantial part of it … whether those acts were carried out
with a view to the creation of another database or in the exercise of
an activity other than the creation of a database.’57
If a similar test is used in relation to determining a
quantitatively substantial part of a database, and when considering
the size of scientific databases, it would appear a quantitative
threshold would seldom be reached. Substantial surely must relate to
something significantly over 50% even if it did not lead to
reconstitution of the database. But it must be noted that the right
only applies to that part of the database which has resulted from the
relevant investment. So it may be that a database is very large –
as the BHB base – but that part only qualifies for the right.
The ECJ noted that the BHB database contained lists of horses –
as well as the information on races. It could be that the list of
horses, as opposed to the pre-race information, does qualify for the
sui generis right as having been the subject of the correct
investment in obtaining, verifying or presenting that data. If this
were the case, then a quantitatively substantial part of that part of
the database need not be a quantitatively substantial part of the
database as a whole.
On
the matter of a qualitative part of the database, this refers
to ‘the scale of the investment in the obtaining,
verification or presentation of the contents … regardless of
whether that represents a quantitatively substantial part of the
general contents of the protected database.’ A
quantitatively negligible part of the contents of a database may in
fact represent, in terms of obtaining, verification or presentation,
significant human, technical or financial investment.58
This test would appear to require analysis of the investment that has
been made in that part of the database that has been extracted.
Conceptually, this throws up some difficulties, as it is not clear
whether only the specific areas of a database in which there has been
sufficient investment are protected by the sui generis right or
whether adequate investment overall in a database or part of database
results in the whole being protected. If the former is the case,
then to what degree of granularity should this be taken?
If the
qualitative test is approached from the first angle (i.e. only the
specific areas in which there have been investment are protected and
a crude granularity test applies) an oddity arises. What is strange
is that the test for determining whether the sui generis right exists
in the first place requires there to have been substantial investment
in the obtaining, verification or presentation of the contents. If
there has been, and the right exists, then it would appear to mean
that any part is qualitatively a substantial part. Reverting to the
BHB example: if it were found that those parts of the database
containing information on the horses, but not concerned with the
pre-race information, satisfy the tests for the subsistence of the
right, then arguably any part of that section must be substantial.
Certainly such a test may require going back to look at the relevant
investment in that part, but nonetheless, it would appear that any
segment or part of a protected database must be qualitatively a
substantial part. That said, an instinctive reaction to such an
argument is that it cannot be correct. If it were it might, in
effect, result in data themselves being protected. As has been
pointed out, that is not the purpose of the sui generis right in the
Database Directive and is a conclusion that the ECJ seemed keen to
avoid.
Looking
at the same situation from the perspective that the whole of a
database or part of database is protected even where the relevant
investment has been concentrated in certain areas and not in others,
and applying a more refined test of granularity, an alternative
conclusion may be reached. Despite the fact that a database or part
of database has qualified for protection as a result of sufficient
investment overall, the quantitatively insubstantial part of that
database or part of database that has been extracted may not be a
segment in which there has been significant investment. Take the
example of a protected database or part of database which contains
eight segments within the area that is protected. Perhaps large
amounts of investment were required to obtain, verify and present the
contents of segments one to three and a comparatively negligible
amount was required for segments four to eight. When the eight
segments are treated as a whole and the investment in each of them is
averaged out over segments one to eight, the total investment is
still sufficiently substantial to provide that the whole of that
database or part of database is protected. If someone were to
extract only segment five from that database or part of database
(which is quantitatively an insubstantial part) then, despite the
fact that the database or part of database as a whole qualifies for
protection, an analysis of the areas of investment would show that
the scale of investment in segment five was not significant and
therefore insufficient for that segment to be treated as
qualitatively substantial.
Which
of these two approaches should be taken depends on the courts
interpretation of the investment requirement and how it applies to
different areas of a database. For a conclusive answer to be given in
this area, further elaboration by the ECJ is required.
4.6 Database fencing
At
first blush it would appear that the decision of the ECJ in the
database cases is good news for scientists keen to re-utilise data
and so progress science. However, as hinted above, it may be that
complex contractual arrangements between interested parties as to
sources of funding aimed at satisfying the criterion of ‘obtaining’
may soon be a feature of even the smallest venture into research
which results in the generation of data to be incorporated into a
database. Further difficulties may also arise, most notably in
relation to databases the contents of which may, or may not have been
generated in whole or in part through public funding, but which are
held in private hands. Merely because the contents of the database
do not attract the database right it does not thereby follow that
scientists engaged in scientific research will be able to gain access
to the contents of the database. Technological protection measures,
contract and high tariffs are all likely to be common features
surrounding those databases held in the private sector. That charges
may be made for access to data contained within a database whether or
not the database right subsists was acknowledged by the ECJ in BHB:
‘The fact that a database can be consulted by third parties
through someone who has authorisation for re-utilisation from the
maker of the database does not… prevent the maker from
recovering the costs of his investment. It is legitimate for the
maker to charge a fee for the re-utilisation of the whole or a part
of his database which reflects, inter alia, the prospect of
subsequent consultation and thus guarantees him a sufficient return
on his investment.’59
Such access is likely to be at a high price, particularly for first
comers, to reflect the lack of control thereafter. Of course, should
a third party gain access to a substantial amount of data from a
non-protected database, then the maker of the original database would
have no recourse against that party. But the maker might as against
the original taker on whom contractual terms could be imposed in the
event of a third party gaining access to the data with attendant
(high) liability provisions. It also remains to be seen the extent
to which the original creator of data might attempt to impose
contractual conditions on a third party concerning use and on-going
control of the data whether by that third party or by another with
whom the third party might contract: in other words, use contract to
exert control over downstream innovations. This is a question to
which we will return below.
So
what advice may be given to the scientist seeking to carry out
research within the boundaries of the legal public domain concerned
to avoid proprietary and contractual claims by the database maker?
As can be seen, any answer is far from simple and may often lead to
the comment ‘it depends’, which is hardly useful for a
scientist whose concern is to progress science unfettered by legal
niceties.
5. The Public Interest
This
rather unsatisfactory state of affairs in relation to scientific
research and the public domain has led to growing calls for a
reassessment and rebalancing of the rationalisations for the grant of
private property rights in intellectual products in the scientific
sphere, and in particular for a greater weight to be given to the
public interest. But that, in turn, begs the question as to what is
meant by the public interest.
The
public interest is not a unitary concept: different public interests
will be relevant in different scenarios and need to be weighted
differently depending on the circumstances. The task for any
commentator, regulator or adjudicator is to find the appropriate
balance of the numerous public interests that may exist in any
given situation. Finding this balance will not only involve
comparing the relative importance of one public interest to another
but also involve the contemplation of the interconnection of public
interests. By this is meant that merely identifying a public
interest or a set of interests may not be sufficient to support a
claim without considering the broader impact that these may have in
turn on other public interest networks.60
But
it is not only different public interests that require to be
carefully calibrated. The distinction between public and private
interests is another factor that requires consideration. The
relationship between public and private interests will be relevant in
ascertaining the appropriate balance or weight to be given to a
selection of interests. In this the difference between public and
private interests can be a complicated one. If private interests are
dressed up as public and not recognised for what they truly are, a
danger may arise that the state granted-monopoly becomes too heavily
weighted in favour of the private interest. Thus when undertaking
any balancing exercise of various interests it is important to
recognise an interest for what it is (public or private) and to
ensure that the interests that are being balanced against one another
are like and like (i.e. private interest v private interest or public
interest v public interest).
At
a level of abstraction the intricacies have been described thus:
‘Given the political and cultural framework of a particular society and the economic resources at its disposal, the public interest is the aggregate of the fundamental goals that the society seeks to achieve for all of its members – not for a majority of its members or for any large and powerful group, but for all of the people within the society. Considered separately, a society’s goals are often in conflict with one another, and in that case there must be a balancing. The art of government consists of achieving a harmonious rather than a destructive balance among conflicting goals.’61
In
Keeping Science Open,62
descending into a little more detail, it was acknowledged that IP
rights can stimulate investment and ‘aid the conversion of
good science to tangible benefits’ noting at the same time
that they could ‘hinder the free exchange of ideas and
information on which science thrives.’ So finding the
correct balance, whilst essential, is no easy task. Some protection
has to be given to afford the appropriate incentive. But giving too
much can work against just the public interest goals in dissemination
that policy seeks to further. In an era when increasing emphasis is
placed on technology and economic imperatives as key drivers in
reform of the law this may be of particular concern. ‘Creation
can be encouraged or discouraged, depending on the status assigned
creators by society. Copyright, whose position has been complicated
by the development of new technologies, is a decisive factor. The
production policies of commercial distribution of works of the mind
are determined primarily, and much more strictly than before by
market principles. Accordingly, legal standards are being drafted or
revised in order to adjust classical copyright laws to the new
economic imperatives.’63
There is
no question that in recent years there has been a greater focus on
the economic importance of copyright within the creative industries.
They grew by an average of 6% per annum between 1997 and 2002 and
accounted for 8% of Gross Value Added (GVA) in 2002.64
Recognition of the economic importance of this sector of the economy
has no doubt had some influence on the expansion of rights over
recent years and, in the UK, led to the creation of an initiative
supported by the Government designed to bring interested parties
together to discuss ways in which activities such as music
downloading and copying of films might be tackled.65
The Database Directive grew from pressure exerted by a strong lobby
of organisations concerned with the collection of data, who wished
their investment to be protected. Certainly it has been argued that
an immediate result of the introduction of protection was a growth in
the database industry.66
However, whether that has been maintained is questionable, with some
arguing that ‘European database production returned to
predirective levels almost immediately’67
suggesting that legal protection, at least in this area, has not
provided the appropriate incentive to greater investment.
But
even against this backdrop, it is never easy to develop specific
rules and there are many examples of where it might be questioned
whether the balance of public interests has been correctly set, or
where private interests may have masqueraded as public. Much concern
has been expressed for instance in relation to recent changes made to
the law of copyright with the introduction and implementation of the
so-called Infosoc Directive,68
an instrument drafted primarily in response to entertainment industry
concerns about the ease with which digital music files and films
could be copied over the Internet on a one-to-one basis.69
This measure requires Member States to make it unlawful to
circumvent technical protection measures designed to protect works
protected by copyright,70
has narrowed the research exemption from commercial to non-commercial
research,71
and would have appeared to validate the use of contract to shape the
copyright monopoly.72
Thus right holders are apparently given the power to determine the
contours of the public domain. While the legislation is in its
infancy in the UK, having only been implemented in late 2003,73
concern has already been expressed as to the potential impact in the
fields of research and education.74
It has been suggested that the power of the entertainment lobby in
influencing the regulators to their own ends has entailed a balance
that reflects private commercial concerns rather than the public
interest in advancement.
Similarly,
in relation to the database legislation, it has been questioned
whether a proper public interest balancing exercise was undertaken by
the EU regulators75
and the charge laid that there was not ‘an explicit analysis
of the social or public interest costs for the proposed protection of
investment.’76
As a result, database laws ‘set a new milestone for
mischief by virtually abolishing even the concept of a public domain
and by abrogating the public interest components of intellectual
property policymaking.’77
This may have come about, not only because there was a failure to
balance public interests, but also because private interests may have
been dressed up as public ones, merely being clothed as public to aid
passage through the legislative process. Certainly the interests of
the database maker are served by the grant of the sui generis right
because the investment is protected.78
This in turn has been argued to serve a greater public interest
because of the resulting increase in production of databases which
can in turn facilitate scientific development.79
But when the very limited fair dealing exceptions to the database
right80
are considered, where extraction of a substantial part of the
contents of a database is permitted only for the purposes of
non-commercial research,81
but a scientist is not then able to re-utilise the contents in
the furtherance of scientific research,82
questions arise as to what balance of interests were considered by
the regulators minds when agreeing to such measures.
It is
questionable whether the economic imperatives that drive the
entertainment and commercial database industries and on which many
recent reforms have been based are best suited to the progress of
science. Even reverting to the most basic justifications,
scientists, particularly where publicly funded and working within
publicly funded institutions, do not need and generally have no
interest in the ‘incentive’ copyright is designed to
engender; proprietary claims made to the contents of database can
only inhibit the free flow of information and thus seem the
antithesis of the sharing, collaborative ethos on which science
thrives. The power of both copyright and the database right as
instruments of public policy should not be underestimated. The
danger is where regulators fail to take into account the matrix of
public and private interests that are affected by changes to the law.
6. Contract
Connecting
both copyright and the database right, two issues arise in which the
strength of the public interest in the advancement of science may be
severely tested.83
The first relates to the potential of contract to constrain the
already limited public domain at the behest of the copyright owner or
database maker. A question that has bedevilled the copyright
community is the extent to which contract might be used to alter the
contours of copyright, for instance by ‘preventing’ a
third party from using a work for the purposes of non-commercial
research or private study.84
The current weight of academic opinion seems to suggest that, in the
public interest, such contractual provisions should not be
tolerated.85
It can only be a matter of time before such clauses appear in
‘database’ contracts and no doubt subject to the same
critical analysis. A second issue relates to the accessibility of
works protected by copyright and data held within databases, where
technological protection measures are used to deny access except at a
price, or subject to conditions. It may be that, beyond the limited
control provided by competition law and licensing regimes,86
those who hold the keys to the technological locks will, de facto, be
the guardians of the public interest. Where those same guardians are
driven by private commercial concerns, the public interest in the
advancement of science, along with the public domain, could be sorely
constricted in favour of shorter term economic imperatives.
7. Public Funding
The
underlying theme of the discussion until now has been in relation to
the progress of science as advanced within publicly funded
institutions through the expertise of publicly funded research
scientists. The copyright and database frameworks make only small
concessions as to who is using protected information and for what
purposes, and no distinction when considering sources of funding used
to advance science. The diminishing public domain combined with the
focus on economic aspects of the public interest may be essential to
sustain a thriving commercial scientific sector and entertainment
industry, but where public funding makes crucial advances possible,
then questions arise as to the appropriateness of the current
framework.
At
its most basic, large numbers of academics who work in scientific
research are not ‘in it for the money’ in the sense that
they either look to, or depend upon a commercial return from their
innovative work. They are, after all, paid by the State for their
research prowess through their contracts with their employing
institutions. Thus, in devising a legal framework that protects the
commercial value of created works, prompts scientists to place fences
around intellectual endeavour, and rewards those who gather what is
created, the many and varied funding routes though which such
creations may come into being are not being taken into account.
Equally the traditional academic publishing model in the UK, geared
as it is towards the rating of Universities and their departments in
the Research Assessment Exercise,87
and which encourages the assignation of copyright to publishers of
research results, must be questioned as to its sense within the
scientific research process.88
It is a practice which only further endorses copyright fencing as
discussed above.89
An
extra layer of complication is added through the present pressure on
academics and Universities to commercialise their results. Herein
lie murky waters providing a good illustration of the difficulties in
balancing both public interests and public and private interests.
The funding crisis in Higher Education has been well documented in
recent years.90
There are many calls on public funding, of which research in Higher
Education Institutions is only one. But what is in effect a decrease
in public funding directed towards research has led to an increase in
emphasis on the business aspect of universities. Where historically
there has been an academic tradition which has valued purity of
research, nowadays stress is laid on the commercialisation of the
research that takes place: research that translates into IP rights
in their many and varied forms.
Where
public money has funded the creation of data and other research,
there is an argument that the results should remain in the public
domain, freely accessible to all for the maximum public benefit. But
this brings its own problems. Particular concern has been expressed
by a number of bodies, including The Royal Society,91
in relation to results of research funded by the public purse being
drawn into and exploited by the private sector to the detriment of
both the advancement of science and of the public interest.92
How then, on the one hand, to ensure the results of publicly funded
research are freely available to build upon, whilst on the other hand
ensuring that those results in turn remain free? The Royal Society
has suggested that where the fruits of publicly funded research are
exploited by private commercial concerns, ‘scientists ensure
that any publicly funded data that are made available to private
databases are done so non-exclusively, and that at least one
repository of the information is liberal regarding access to and use
and manipulation of the data.’93
Where there is research collaboration between business and
universities the Lambert Review94
(published in December 2003) recommended that ‘the common
starting point for negotiations on research collaboration terms
should be that universities own any resulting IP, with industry free
to negotiate licence terms to exploit it’95
a recommendation which seems to have found little favour with
those same businesses.
It
has been stated that IP regimes should be designed so that the
subject matter of each one has relatively homogenous needs for
protection.96
There are strong arguments to suggest that where research and
creation of data is publicly funded then different factors should
drive protection, and a regime developed which takes account of
public interest considerations that will ensure the accessibility and
re-use of the results. It is to the responses to these pressures
that we now turn.
8. Public and Private Initiatives in
response to tensions within and amongst the ‘three Ps’.
The
limited public domain, the public interest that underpins the
scientific research process within publicly funded institutions,
together with substantial public funding combine to suggest that the
current copyright and database frameworks largely geared towards
economic imperatives may not be best suited to scientific progress.
That is not to dispute the fact that scientific progress is important
for the economic contribution that it can make, however indirectly.
It is however to argue that when these three elements come together,
the framework, as it currently stands, may be placing barriers in the
way of what could be achieved in the way of progress. But,
there is a paradox. A diminishing public domain, a balance of
interests which might be argued to favour the private rather than the
public sphere, and a policy which requires research institutions to
commercialise results does not appear to have entailed a reduction in
scientific outpouring.97
But
two pressing issues beyond the ‘three Ps’ add weight to
the argument that now is the time to reassess these factors in
scientific research. The first is that the expansion of property
rights is not without its adverse consequences. If property rights
can be claimed in upstream material, then not only can re-use be
prevented, but those same property rights can also be exerted in
downstream or derivative works leading to many and varied ownership
claims in scientific advances. With property rights, so conditions
can be exerted whether they concern exploitation or further re-use.
Property rights may also be used to extract ever-higher tolls to
access works and data, ultimately being affordable only by the few.
As discussed above, in many cases it might be public money that is
expended on the initial creation or scientific discovery, which is
then exploited in the private commercial arena. And there is always
the unanswerable question: how much more research and scientific
progress would be made if these domains had been at the forefront of
regulators minds when developing a proprietary framework?98
The
second issue relates directly to advances in technology. Whilst the
power of technology to underpin scientific progress has long been
acknowledged, the comparatively recent development of computing
capabilities has reinforced this relationship and consequently
highlighted the potentially huge impact that technology may have on
science and scientific research. From open standards in the
development of the programs needed to house and to manipulate data in
ways useful to science (open source); through the ease by which the
latest scientific research results can be accessed and re-used when
made freely available on the Internet (open access), to the freedom
that can be exercised by cohorts of scientists seeking to explain
scientific phenomena and thus develop understanding (open science),
so technological advances have made and continue to promise
opportunities never before imagined.
A
greater awareness of what might be achieved appears to
underpin a number of high profile moves to construct ‘free’
spaces more suited to the needs of current and future scientific
users. The common thought behind these initiatives is that the legal
construct forcing players to work within the confines of frameworks
more suited to the private commercial sector has at least the
potential to hinder scientific advances in the public sector. Many
and varied attempts are now being made to construct spaces in which
research may thrive in the interests of progress. Each of the
initiatives has in common, to a greater or lesser extent, the ‘three
Ps’. They are attempts to expand the legal public domain; they
rest on the belief that there is a weighty public interest in the
dissemination and re-use of scientific research and data; each has an
element of public funding, whether for the research per se, or though
the funding of those who advocate the strategy.
8.1 Open Source
One
well-known example of the use of contract to construct a public
domain is ‘opensource’ software.99
This refers to computer software whose source code is either one in
which no person or organisation has any proprietary interest, or,
more commonly, one which is protected by copyright but then
distributed under an open-source licence such as the GNU General
Public License (GPL).100
This licence seeks to ensure that the source code will always be
available to future developers to build upon. It came about
apparently in response to Netscape making its browser freely
accessible.101
The founders wanted to prove to other big businesses that software
development could continue apace without the assertion of property
rights. Another movement, seeking to achieve similar ends is the
Free Software Foundation.102
Led by Richard Stallman, the motivation behind this initiative
appears to be ethical rather than practical; a reaction to the claims
(sometimes over extensive) made by software companies in relation to
proprietary rights in software. The underlying philosophy appears to
revolve around perceptions of the needs of society; in other words,
the public interest: ‘What does society need? It needs
information that is truly available to its citizens---for example,
programs that people can read, fix, adapt, and improve, not just
operate. But what software owners typically deliver is a black box
that we can't study or change. Society also needs freedom. When a
program has an owner, the users lose freedom to control part of their
own lives. And above all society needs to encourage the spirit of
voluntary cooperation in its citizens. When software owners tell us
that helping our neighbors in a natural way is ``piracy'', they
pollute our society's civic spirit.’ 103
Much of the developmental work is carried out for ‘free’
by volunteers, many of whom are employed in publicly funded research
Institutions.
8.2 Open Access
In
response to the concerns over the academic publishing model described
above, there has been in recent years a quiet revolution occurring in
the academic library and information sectors. Working with
ever-tighter publicly funded budgets, these sectors have been setting
up initiatives, generally called ‘open access’, aimed at
making the results of scholarly work freely accessible to all. Key
drivers appear to be the belief that it is not in the public interest
that public funding which supports the researchers who write the
journal articles should be expended a second time in buying back
those same fruits of research from publishers, and that the weight of
the public interest should be in favour of the results being freely
available to other researchers to build upon in their work. Schemes
include those led by Sparc Europe and DOAJ. Sparc Europe is an
alliance of European research libraries, library organizations, and
research institutions which ‘advocate change in the
scholarly communications market, support competition, and encourage
new publishing models (in particular, open access models) that better
serve the international researcher community.’ 104
DOAJ is the Directory of Open Access Journals whose aim ‘is
to increase the visibility and ease of use of open access scientific
and scholarly journals thereby promoting their increased usage and
impact.’105
For
some, open access means no more than making the results of research,
in the form of published articles, available in a manner that can be
accessed freely by those who need or wish to do so. There would seem
to be no attempt to widen the legal public domain by limiting or
confining any of the exclusive rights belonging to the owners. But
open access is also used to denote different, broader, domains.106
For example, the Berlin Declaration on Open Access to Knowledge in
the Sciences and Humanities,107
an initiative headed by a number of German academic institutions,
defines open access as: ‘a comprehensive source of human
knowledge and cultural heritage that has been approved by the
scientific community.’ Any contributions made to the
initiative (which can include original scientific research results,
raw data, digitised pictures and scholarly multimedia material) must
satisfy the following conditions:
‘The
author(s) and right holder(s) of such contributions grant(s) to all
users a free, irrevocable, worldwide, right of access to, and a
license to copy, use, distribute, transmit and display the work
publicly and to make and distribute derivative works, in any digital
medium for any responsible purpose, subject to proper attribution of
authorship (community standards, will continue to provide the
mechanism for enforcement of proper attribution and responsible use
of the published work, as they do now), as well as the right to make
small numbers of printed copies for their personal use.’
Significant
weight has been added to the movement as a result of an investigation
into the scientific publishing industry108
commissioned by the Wellcome Trust, an influential funding body in
the UK which distributes public funding to biomedical sciences.109
What the investigation found was a clash of priorities among those
involved in the industry: commercial publishers who want to better
their business position; libraries who struggle to buy journals on
tight budgets; and researchers who want their research published in
reputable journals. The conclusion drawn in the report was that
‘[t]he current market structure does not operate in the
long-term interests of the research community.’110
Perhaps
prompted by the reports produced for the Wellcome Trust, the House of
Commons Committee on Science and Technology announced in 2003 that it
would carry out an enquiry into ‘access to journals within
the scientific community, with particular reference to price and
availability.’ The particular focus of the committee was on
‘what measures are being taken in government, the publishing
industry and academic institutions to ensure that researchers,
teachers and students have access to the publications they need in
order to carry out their work effectively.’111
The Committee published their report, ‘Scientific
Publications: Free for All?’ in July 2004. Within it,
they made a number of recommendations among which were that: ‘all
UK higher education institutions establish institutional repositories
on which their published output can be stored and from which it can
be read, free of charge, online’ and that ‘Research
Councils and other Government funders mandate their funded
researchers to deposit a copy of all of their articles in this way.’112
The Government’s response113
in November 2004 largely rejected the advice of the Committee, saying
that, while institutional and thematic repositories can play a
significant role in the dissemination of research outputs, ‘the
Government has no present intention to mandate Research Council
funded researchers to deposit a copy of their published material in
institutional repositories.’114
8.3 Open Science
Another
example of the reaction to burgeoning IP rights is that of the human
genome project.115
Funded by an international consortium, the group responsible for
the project agreed in 1996 that publicly funded laboratories involved
in the project would release all data immediately as it was produced.
In other words, this data would be placed ‘in the public
domain’. Now while there are ironies in this strategy (placing
the information in the public domain allowed a rival company, Celera,
to use this information for its own commercial purposes), it was
decided that contract should not be used as a method of keeping the
data free. The rationale was explained by John Sulston, co-founder
of the project: ‘[W]e all came to the conclusion that more
would be lost than gained by our pursuing this line. Our role was to
provide the data publicly for anyone to use…Had we claimed
ownership, which is what any kind of restriction would amount to, we
would be abrogating the very thing that we stood for.’116
So
publicly funded information was placed in the public domain (in its
widest sense) by scientists who, following their sense of an ethical
strategy, believed that the information they discovered was: ‘of
fundamental importance…which the great majority of people
believe should be beyond private ownership.’ 117
The Organisation for Economic Cooperation and Development has been drawn into the debate. The Committee for Scientific and Technological Policy held a meeting in 2004 during which they focussed on three issues high on the science and innovation policy agendas of their member countries.118 These were: ‘1) promotion of stronger relationships between science and innovation systems, including the changing role of intellectual property rights in stimulating knowledge creation and diffusion; 2) ensuring sustained development of human resources in science and technology; and 3) global-scale issues that call for enhanced international co operation in science and technology.’119 Following their deliberations the committee produced a Declaration on Access to Research Data from Public Funding.120 This declaration, as the title suggests, focussed on access to scientific data. Couched in general language, it encourages the respective Governments to work towards the establishment of access regimes to data produced by publicly funded bodies. While the declaration does not go so far as to suggest that publicly funded data should be freely available to all, it does encourage giving thought to how interests in open access for the purposes of research will enhance the quality and productivity of science systems worldwide.
What is noticeable is that in most cases the initiatives emanate from one or a group of individuals. Only latterly have regulators, policy makers and funding bodies seen fit to suggest approaches that might support these efforts, and not all of these have been unqualified.
9. Conclusion
The current copyright and database right regimes are clearly not meeting the needs of scientific researchers. There is obvious concern at the extent to which inaccessibility of the fruits of research might hamper the next generation of researchers; over the inability to engage in ‘new’ research without meeting expensive property claims; and over the extent to which publicly funded research may end up being exploited for private ends. That there is dissatisfaction can be seen both at the grass roots level and, more recently, in the policy initiatives that have been taken to try and liberalise the fruits of existing scientific research for the newcomers. A different and to some extent more personal ‘public interest’ has emerged. Emanating from individuals engaged in the research process and now supported by public bodies, the agenda supporting the scientific research process is becoming increasingly liberal and is designed to support those who work within this sector. It is however questionable as to whether these pressures will result in changes to the legislative framework. The trend over recent years has been to increase intellectual property rights, and it is likely that this will continue with regulators focussed on the entertainment and database fields and their clamorous concerns.121 But the quiet revolution in scientific research has gained a significant volume and seems likely to grow in strength and influence. The long term question will be as to whether it can survive despite the absence of a supportive legislative framework. We have confidence that it will.
* Dr Charlotte Waelde, Co-Director, AHRC Research Centre for Studies in Intellectual Property and Technology Law, School of Law, University of Edinburgh, and Mags McGinley, Legal Research Associate, Digital Curation Centre, University of Edinburgh.
1 J Litman, “The Public Domain” (1990) 39 Emory Law Journal 965 at 968.
2 Perhaps the much quoted statement made by the scientist Sir Isaac Newton over three hundred years ago concerning a leap forward in understanding still best sums up the derivative nature of creativity: ‘What Descartes did was a good step. You have added much in several ways and especially in taking the colours of thin plates into philosophical consideration. If I have seen further it is by standing on the shoulders of Giants’ Newton to Hooke 5th February 1676; 1,416 The Correspondence of Isaac Newton Turnbull and others eds. Cambridge University Press Vol. II 1676-1687. Note that some argue that there is a hint of irony in this statement. Hooke was physically very small, and one line of thought is that Newton was acknowledging using work of others who came before him, but not that of Hooke.
3 Copyright Designs and Patents Act 1988 (hereafter CDPA) s 12. Directive 96/9 of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (hereafter the Database Directive) Article 10.1
4 Agreement on Trade-related Aspects of Intellectual Property Rights 1994 (TRIPS) Article 9(2).
5 It is the investment in the obtaining, verification and/or presentation of data that is protected. Database Directive Article 7.1.
6 The originality threshold in the UK is low: the author must have exerted the requisite labour, skill or effort in producing the work Ladbroke v William Hill [1964] 1 All ER 465, 469.
7 Database Directive Article 7.1.
8 CDPA s 16(3)(a). Database Directive Article 7.1.
9 CDPA s 29. Database Directive Article 9.b. However, re-utilisation of the contents of the database is not so permitted
10 P Samuelson, “Preserving the Positive Functions of the Public Domain in Science” (2003) 2 Data Science Journal 192
11 J Litman, “The Public Domain” (1990) 39 Emory Law Journal 965 at 967. For more on the public domain see “The Public Domain” (2003) 66 No 1 & 2 Law & Contemp. Probs. (the whole issue) available @: <http://www.law.duke.edu/journals/lcp/lcptoc66winterspring2003.htm > and in particular J Boyle, “The Second Enclosure Movement and the Construction of the Public Domain” (2003) 66 Law & Contemp. Probs. 33 available @: <http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+33+(WinterSpring+2003)>
12 CDPA s 12. The term of protection has always been keenly debated and proposals to increase the term hotly contested. For example in a speech delivered in the House of Commons on 5th February 1841, Thomas Macaulay took exception to the proposal to extend the copyright in books to lifetime of the author plus 60 years: ‘The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures’.
13 Termed by some ‘domain public payante’.
14 CDPA s 77.
15 In the joint copyright sense. CDPA s 10(1).
16 Said by some to be ‘science that requires massive capital investment but which is also expected to yield very significant results’. http://www.wordiq.com/definition/Big_Science
17 Credit and responsibility seem closely intertwined in the scientific field mainly as a result of fraudulent scientific claims. For instance the International Committee of Medical Journal Editors requires that authorship credit for articles in that journal must be based on substantial contributions to 1.conception and design, or analysis and interpretation of data; and 2.drafting the article or revising it critically for important intellectual content; and 3.final approval to be published. Further, when a large, multi-centre group has conducted the work, the group should identify the individuals who accept direct responsibility for the manuscript. http://www.icmje.org/#author
18 See the claims made by C McSherry in Who Owns Academic Work? Battling for Control of Intellectual Property (2001) at 219.
19 M Biagioli. “Rights or Rewards? Changing Frameworks of Scientific Authorship”, in M Biagioli and P Galison (eds), Scientific Authorship. Credit and Intellectual Property in Science (2003) at 257.
20 Ibid at 254.
21 International Council for Science, Scientific Data and Information – A Report of the CSPR Assessment Panel, December 2004. Available @: <http://www.icsu.org/Gestion/img/ICSU_DOC_DOWNLOAD/551_DD_FILE_PAA_Data_and_Information.pdf>
22 Available @: < http://www.ecs.soton.ac.uk/~ajgh/DataDeluge(final).pdf >
23 ‘The next generation of research breakthroughs will rely upon new ways of handling the immense amounts of data that are being produced by modern research methods and equipment, such as telescopes, particle accelerators, genome sequencers and biological imagers….Similar developments are having an impact in the arts and humanities, and in the social sciences.’ A Vision for Research, Research Councils UK, December 2003.
24 @ < http://europa.eu.int/rapid/pressReleasesAction.do?reference=IP/96/171&format=HTML
&aged=1&language=EN&guiLanguage=en >
25 J Gaster, Communications Law Vol 5 No. 3, 200 at 97.
26 Available @ < http://www.royalsoc.ac.uk/displaypagedoc.html?id=11403> at 23.
27 International Council for Science, Scientific Data and Information – A Report of the CSPR Assessment Panel, December 2004. Available @: <http://www.icsu.org/Gestion/img/ICSU_DOC_DOWNLOAD/551_DD_FILE_PAA_Data_and_Information.pdf>
28 Database Directive Article 7.2(a).
29 Database Directive Article 7.2(b).
30 Database Directive Articles 7.2 (a) and (b).
31 Database Directive Article 9(b).
32 British Horseracing Board v William Hill C-203/02 (from the Court of Appeal, England and Wales); Fixtures Marketing Ltd. v Svenska Spel AB C-338/02 (from the Hogsta Domstol, Sweden); Fixtures Marketing Ltd v OY Veikkaus Ab C-46/02 (from the Vantaan Darajaoikeus, Finland); and Fixtures Marketing Ltd. v Organismoa Prognostikon Agnon Podosfairou (OPAP) C-444/02) (from the Monomeles Protodikio Athinion, Greece). The opinions were delivered on 8 June 2004 and the judgements by the ECJ on 4 November 2004.
33 British Horseracing Board v William Hill C-203/02 (hereafter BHB).
34 Fixtures Marketing Ltd. v Svenska Spel AB C-338/02; Fixtures Marketing Ltd v OY Veikkaus Ab C-46/02; and Fixtures Marketing Ltd. v Organismoa Prognostikon Agnon Podosfairou (OPAP) C-444/02.
35 Database Directive Article 1(2).
36 OPAP Case C-444/02.
37 Ibid para 30.
38 Ibid para 32.
39 Database Directive Recital 40.
40 Fixtures Marketing Ltd. v Organismoa Prognostikon Agnon Podosfairou (OPAP) C-444/02
41 BHB Case C-203/02.
42 Ibid para 38.
43 Ibid para 14.
44 Ibid para 40.
45 OPAP Case C-444/02 Para 51. Also Fixtures Marketing Ltd. v Svenska Spel AB C-338/02 para 35.
46British Horseracing Board Limited and Others v William Hill Organisation Limited [2001] 2 C.M.L.R. 12. Laddie. J.
47 British Horseracing Board Ltd v William Hill Organisation Limited, Case 203/02 Opinion of Advocate General Stix-Hackl delivered on 8 June 2004 paras 37-49.
48 Database Directive Recital 23.
49 There is also the right the right to prevent repeated and systematic extraction and or re-utilisation of insubstantial parts of the database contents. Database Directive Article 7.5.
50 Database Directive Article 7.2.(a).
51 Database Directive Article 7.2.(b).
52 BHB Case C-203/02 para 53.
53 Ibid para 54.
54 Database Directive Article 8(1).
55 BHB Case C-203/02 para 70.
56 Database Directive Article 7(5). The purpose of this provision stems from a concern to ‘ensure that the lack of protection of the insubstantial parts does not lead to their being repeatedly and systematically extracted and/or re-utilised’. Common Position (EC) No 20/95 adopted by Council on 10 July 1995 (OJ 1995 C 288 at 14.
57 BHB Case C-203/02 para 87
58 Ibid para 71.
59 BHB para 57.
60 G Laurie and C Waelde, “Privacy, Property and Personalities: Whatever Happened to the Public Interest?” Forthcoming. Currently on file with the authors. At 22
61 Ringer, “Authors’ Rights in the Electronic Age: Beyond the Copyright Act of 1976” (1981) 1 Loyola Entertainment Law Journal 1.
62 Ibid n. 26
63 UNESCO, Third Medium Term Plan (1990-1995), adopted in November 1989, para 195.
64 Statistics taken from Department of Culture, Media and Sport Creative Industries Economic Estimates Statistical Bulletin, August 2004 available @: <http://www.culture.gov.uk/global/research/statistics_outputs/creative_industries_eco_est.htm >
65 For example the Westminster Media Forum Seminar on Intellectual Property and Rights Ownership, addressed by the Rt Hon Estelle Morris MP, London, 9 December 2004.
66 J Reinbothe, untitled paper presented at WIPO’s Protection of Databases Workshop on 16 September 1999, Geneva.>
67 S Maurer, P Hugenholtz, H Onsrud, “Europe’s Database Experiment” (2001) Vol 294 Science 789-790 at 790.
68 European Parliament and Council Directive 2001/29/EC of 22 May 2001, OJ 2001, L167/10 (hereafter the Infosoc Directive).
69 C Waelde and H MacQueen “From Entertainment to Education: the Scope of Copyright?” (2004) 3 Intellectual Property Quarterly 259 at 270.
70 Infosoc Directive Articles 6 and 7.
71 Infosoc Directive Article 5.3 (a).
72 Infosoc Directive Article 6.4.
73 Implemented in the UK in the Copyright and Related Rights Regulations 2003, SI 2003/2498.
74 See generally C Waelde and H MacQueen “From Entertainment to Education: the Scope of Copyright?" n 69 above.
75 Chapman, “A Human Rights Perspective on Intellectual Property, Scientific Progress and Access to the Benefits of Science”. Available on the WIPO website @: <http://www.wipo.int/tk/en/activities/1998/humanrights/papers/pdf/chapman.pdf >
76 ibid
77 J Reichman and P Samuelson, “Intellectual Property Rights in Data?” (1997) 50 Vanderbilt Law Review 51 at 164.
78 Whether it provides an incentive is a different matter as discussed infra.
79 For a paper questioning whether this has in fact happened see n 67 above.
80 Database Directive Article 9. Note that these are optional for Member States and not mandatory.
81 Database Directive Article 9.b.
82 ibid.
83 Database makers/vendors are protecting their data with both clever business strategies and technology. N. Gallini and S. Scotchmer, “Intellectual Property: When is it the best incentive system?” (2002) Vol 2 Innovation Policy and the Economy 51
84 CDPA s 29(1).
85 That does not of course prevent such provisions appearing on a regular basis in copyright licences.
86 RTE and ITP v Commission Joined Cases C-241/91 P and C-242/91 P [1995] ECR I-743; IMS Health v NDC Health Case 418/01; Technology Transfer Block Exemption Regulation Commission Regulation (EC) No 772/2004 of 27 April 2004 on the application of Article 81(3) of the Treaty to categories of technology transfer agreements
87 < http://www.rae.ac.uk >
88 This model assumes that the academic owns the copyright in the research output – an assumption that would appear not to be in accordance with the legislative provisions of the CDPA s 11(2), although arguably accepted by custom and practice.
89 For an ‘out of the box’ discussion attended by academics, librarians, policy makers, representatives of collecting societies and publishers as to what the contours of a ‘Copyright Free World in Higher Education’ might look like see < http://www.law.ed.ac.uk/ahrc/publications/online/ipfreeworld.pdf >
90 See e.g.< http://education.guardian.co.uk/egweekly/story/0,5500,784805,00.html. > Certainly research is to receive £120 million more in funding in 2005, but (as with other areas) this does not keep pace with demand nor the potential of what could be done if more were available.
91 Ibid n 26.
92 In addition to the initiatives discussed here see also US Public Access to Science Act H.R. 2613, a proposal designed to make research funded by the American government exempt from copyright protection; an Australian government support of open access to scientific results <http://www.dest.gov.au/Ministers/Media/McGauran/2003/10/mcg002221003.html. > For a useful repository of both public and private initiatives see: <http://www.earlham.edu/~peters/fos/2003_10_19_fosblogarchive.html >
93 Ibid n 26 Ch 5
94 Lambert Review of Business-University Collaboration. Final Report December 2003. ISBN: 0-947819-76-2.
95 Recommendation 4.1.
96 N. Gallini and S. Scotchmer, “Intellectual Property: When is it the best incentive system?” (2002) Vol 2 Innovation Policy and the Economy 51 at 53
97 Ibid n. 22
98 For arguments that intellectual property rights do inhibit the progress of science see e.g. J Reichman and P Uhlir, “A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment” (2003) 66 Law & Contemp. Probs. 315 available @: <http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+315+(WinterSpring+2003)>, M Heller and R Eisenberg, “Can Patents Deter Innovation? The Anticommons in Biomedical Research” (1998) Vol 280 Science 698 available @: <http://www.sciencemag.org/cgi/content/full/280/5364/698> and Keeping Science Open.
99 See < http://en.wikipedia.org/wiki/Open_source. > Licences must meet ten conditions in order to be considered open source licenses. For further information see <http://www.opensource.org/definition.php. >
100 < http://www.gnu.org/copyleft/gpl.html >
101 < http://www.oscommerce.com/about/philosophy >
102 < http://www.gnu.org >
103 < http://www.gnu.org/philosophy/why-free.html >
104 < http://www.sparceurope.org/ >
105 < http://www.doaj.org/. > On 11 January 2005 there were 1408 journals in the directory and 62788 articles.
106 Trends towards open access, in a variety of forms, are gaining ground in a number of countries around the world. Many initiatives are led by those directly involved. E.g. DAREnet, a joint initiative by the Dutch universities, which facilitates digital access to the results of their research. Available @: <http://www.darenet.nl/en/toon >; WSIS Declaration of Principles & Plan of Action <http://www.itu.int/wsis/documents/doc_multi-en-1161%7C1160.html >; call by twenty-five Nobel Prize winning scientists on the U.S. government to make all taxpayer-funded research papers freely available. < http://www.usatoday.com/news/science/2004-08-29-free-research_x.htm >
108 An Economic Analysis of Scientific Research Publishing available @: <http://www.wellcome.ac.uk/assets/wtd003182.pdf >
109 The Wellcome Trust says that it planned to distribute more than £400 million (approximately $662 million) in funding to biomedical sciences in the year 2003–2004. < http://www.wellcome.ac.uk/ >
110 Ibid n. 108 at iv. See also the second report produced by the Wellcome Trust looking at costs and business models. Available at < http://www.wellcome.ac.uk/assets/wtd003184.pdf >
111 < http://www.parliament.uk/parliamentary_committees/science_and_technology_committee/scitech111203a.cfm >
112 Available @: <http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/399/399.pdf>
113 Available @: <http://www.publications.parliament.uk/pa/cm200304/cmselect/cmsctech/1200/120006.htm >
114 Ibid.
115 J Sulston “Intellectual Property and the Human Genome” in P Drahos and R Mayne (eds) Global Intellectual Property Rights: Knowledge, Access and Development (2002) 61-73
116 Ibid at 66.
117 Ibid at 72.
118Science, Technology and Innovation for the 21st Century. Meeting of the OECD Committee for Scientific and Technological Policy at Ministerial Level, 29-30 January 2004 - Final Communique
119 < http://www.oecd.org/document/0,2340,en_2649_34487_25998799_1_1_1_1,00.html >
120 Declaration on Access to Research Data from Public Funding adopted on 30 January 2004 in Paris.
121 See for example the recent UK Film Council Report Film theft in the UK Anti-Piracy Task Force: an analysis and recommendations for action. December 2004. Available from Communications Department, UK Film Council, 10 Little Portland Street, London W1W 7JG.