[ENRIQUE ALONSO GARCIA]

Afer Willi´s statements…
I still maintain that our conclusion/consensus was that:
A.- We should not use ownership in the context of our guidelines, but
B.- We should not assert either that data is by essence a fact that cannot be IPRed.
I agree with you Willi, that is the law but I have been convinced that that “should” be the law. De facto reality runs counter to it in Business Data law.
If a company A sells to company B its collected data and includes a clause that obliges B not to allow any third party C to access it and to acknowledge that it (B) has been authorized only to use A´s data for X use or under Y conditions “because A is the owner and has its IPR”… Can B breach the contract?
Although A and B are signing a contract that has no valid consideration (following your ideal world) … believe me, courts will enforce the contract.
And, why does B sign such a contract in the first place and why does it abide by it instead of forgetting about it as soon as it signs it and obtaining its own money by selling it to C breaching the clause?
First, because B will not obtain the data that it is interested in using because it produces money and benefits (lists of IPs, lists of services, lists of clients, list of people who like this type of food in this geographical area,…that facilitates B´s business)
(very practical) unless it signs such contract, and
because the only alternative way for B to get it would be by investing itself in the effort to get its own list (and the contract is cheaper), or … hacking it (illegal under the computer fraud act) or entering at night masked in the premises of A and steal for some hours its computer and return it without A noticing it (illegal trespass)… No court would allow the benefits from an illegal action to be used (pretty much as narcotraffickers cannot use luxury cars products of its illegal trade… and this is extended to civil law and be applied to data obtained by B with malice or fraud from the sphere of power of A)
And of course, if A keeps on updating its list B will be interested in getting the updated list (data)…
So private data (data that A wants to keep within the sphere of its powers and “privacy” –commercial privacy-) are de facto a commodity (intra commertium) whether we like it or not; pretty much as MIT or Harvard had no doubts that the data from the blood samples of Ms Sharon Terry´s daughter are “theirs”. Remember the article distributed some months ago? (Sharon F. Terry. Life as a numerator: Putting the person in personal genomics, Applied and Translational Genomics, 1 February de 2016,
http://www.sciencedirect.com/science/article/pii/S2212066116300072)
Are we going to say that all this “business data law”, which moves billions of dollars is all a fake? … illegal, or fraudulent activity?
Scientists simply adapted to this world (and that is the reason why Elsevier and others, before the open access movement asked for the rights to the data for themselves as a condition for the article based on such data to be published) … is that illegal?
It has been the exaggeration of data “seclusiveness”, the sudden assessment done by scientists themselves that this is blocking the advancement of science, and the fact that taxpayers have decided not to pay twice for the research (in taxes when funding the agency that funds the researcher, and when getting its results) and because of the stagnation that exaggerated property rights produce in the economy itself, … etc that these developments have been revised and open access exists, forcing the funding agencies to obtain for themselves the data and dedicate it to the public domain as a condition of the funding (or simply by changing the law through states and regulations)
Landsat if the typical example. It used its pictures as a commodity and sold them; until it saw that the benefits, even for Landsat itself, are greater of it simply allows anybody to get them for free. It is true that it is a picture. but it is also scientific or research data.
In the case of the Hoeren´s car: what the neighbor obtained is the consequence of a fraudulent malicious conduct because he/she was allowed to use the car, not to tamper with its equipment, neither to get a copy of the data within its computer. And courts will logically try to stop the neighbor from benefitting from a breach of good faith and a fraudulent act… pure justice. How? by ordering the neighbor to stop using the data. What s the best way to justify such judicial decision: that the data were not within the reach of the neighbor´s capacity? Why? …because the data is “owned” by the good faith car owner… Judges are not legal philosophers, … they simply create law in a case by case basis.
Whether we like it or not, many research institutions -and of course all the private ones (industry or pure research) who invest their own money and not taxpayers´- live in this world too…
So, I understood and understand Bernard´s intuitive rejection to the “absolute” that data cannot be copyright…
And… we settled the issue in July/August 2015.. by reaching consensus on the red & bold conclusions that are in the opening statement of this email.
How else can we understand Gail´s problems with the legal counsels of its institution concerning the guidelines?
________________________________
De: egloff_bader=***@***.***-groups.org [egloff_bader=***@***.***-groups.org] En nombre de Willi Egloff [***@***.***]
Enviado el: lunes, 11 de abril de 2016 23:06
Para: ***@***.***-groups.org
Asunto: Re: [rda-legalinterop-ig] RE: [rda-legalinterop-ig] Fwd: data ownership
Hi all
We are quite near to the finishing line, but it seems that you have the intention to restart the race. If you are willing to do so, then please let me remind you some basics of civil law.
I think that there is a problem with the notion of “ownership”. If it is understood as a legal concept, than the meaning should be clear: The owner is the person that has an absolute right on a “thing”. He can keep it, he can use it, he can destroy it, and he can prevent anybody else from using it too. This “thing” can be a material or an inmaterial good. Material goods are all physically existing objects as well as some legally defined rights affiliated to such objects (e.g. pawns, mortgages). Inmaterial goods are non-physically existing objects that have been defined as having the quality of a good by law. The list of such goods can vary from country to country, but it is always exhaustive (numerus clausus).
In most countries the law recognizes as inmaterial goods: inventions (by patent law), trademarks, designs, works (by copyright law), interpretations of works (by neighbouring right law), plant varieties, layout designs of integrated circuits and others more. No country recognizes “data” as an inmaterial good. That’s why “data” cannot be a good in the sense of property and it cannot be “owned”. Of course, you can define “data” in a way that it may in certain cases qualify as work in the sense of copyright, as a database in the sense of database protection, or eventually as another inmaterial good, but then it is protected as work, as database, and not as “data”.
The difference can be illustrated in the legal situation that occurs, when data is transmitted erronously to another person. If I have a copyrightable set of data and I send it to another person, then I can prohibit to that person the use of this dataset, because I am the copyright owner. If the dataset is not copyrightable, I have no possiblity to impede the receiver from making use of it. The receiver can do with this dataset whatever he wants (as long as he does not infringe eventual other protection schemes, e.g. privacy, unfair competition).
That’s why the car-example mentioned in the “Opinion”-text of Thomas Hoeren is wrong. The data automatically collected by the board computer do not belong neither to the car owner nor to the car producer. If the car owner lends his car to a neigbour and the neigbour has the strange idea (and the factual capacity) to copy all these data, there is no legal means to get these data back. The neighbour can keep them and use them, if he wants to. Neither the car owner nor anyone else has an absolute right on these data.
Consequence for me: Never speak of ownership in the case of data, because it is misleading. Data can eventually be IPRed, but only if “data” is defined in such a way that it can – in given circumstances – qualify as work or as another legally defined inmaterial good.
One could of course promote the idea of changing the law in order to recognize a new inmaterial good called “data”. It would be the beginning of the end of open science and open society.
Best regards,
Willi
Am 11.04.2016 um 21:18 schrieb enriquealonso:
Ho, ho!!…
We are returning again to the core of the debate.
Bernard and Christophe are right, but also Paul.
See my conclusion below:
Conclusion:
we should not use ownership in the context of our guidelines, but
we should not assert either that data is by essence a fact that cannot be owned or IPRed.
This was our consensus, by the way.
What follows is the rationale that led to this consensus and that “Christophe´s articleâ€

Discussion

[ENRIQUE ALONSO GARCIA]

THIS IS THE SAME MESSAGE. I SAW THAT, BECAUSE OF THE COUNTRY FROM WHERE I SENT THE PREVOIOUS ONE SOME CHARACTERS BECAME WEIRD DRAWINGS…
After Willi´s statements…
I still maintain that our conclusion/consensus was that:
A.- We should not use ownership in the context of our guidelines, but
B.- We should not assert either that data is by essence a fact that cannot be IPRed.
I agree with you Willi, that is the law but I have been convinced that that “should” be the law. De facto reality runs counter to it in Business Data law.
If a company A sells to company B its collected data and includes a clause that obliges B not to allow any third party C to access it and to acknowledge that it (B) has been authorized only to use A´s data for X use or under Y conditions “because A is the owner and has its IPRâ€

[Willi Egloff]

Dear Enrique
Both your conclusions are right. But your arguments concern a completely
different question. I was talking about “data” as “inmaterial good”. You
are talking about “data” as object of contracts. In my understanding,
this are two completely different issues.
You are right: We can sell data, we can buy data, we can keep data
secret, we can publish data. Of course, we can. Nothing of it is
illegal. But does it mean that data is an inmaterial good? Not at all.
We can buy reputation, we can buy goodwill, we can buy feelings, we can
even buy love. Nothing of that is illegal. Does it mean that goodwill,
feelings, love are inmaterial goods? Not at all.
Please read my statement: “Inmaterial goods” are non-physically existing
objects that have been qualified as goods by law. Copyrightable works
are such goods, data are not. That’s all. It does not say in any form
that buying or selling data is illegal. It is not. But this does not
change the fact that there is no legislation that qualifies data as goods.
The difference I’m talking about is the difference between absolute
rights and relative rights. I can assert absolute rights against
everybody. But I can assert relative rights only in the relation to a
contractual party or on some other obligational ground. I can sue
anybody who has used my copyrightable work, because it is an inmaterial
good and I have an absolute right in it. I cannot sue somebody who has
used “my data”, if it is not on the basis of a contract that he or she
has violated, because “data” is not an inmaterial good and I have no
absolute right in it. That was the only point I wanted to remind.
In our group, we are dealing with legal interoperability. We are looking
for solutions that allow the access and reuse of data in situations
where there is no contract. Between two or more parties that are linked
by contract, you do not need legal interoperability. In these cases, it
is always the contract that says what is allowed and what is not. The
only exception are overriding legal rules.
That’s exactly why we recommend to avoid contracts that restrict access
and reuse of data. You can conclude such contracts, but it hampers legal
interoperability. That’s why you should not do it, if you can avoid it.
I thought that this was one of the red lines in our guidelines. Was I wrong?
Best regards,
Willi

[Author]

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