[ENRIQUE ALONSO GARCIA]

Dear Willi,
After giving the whole topic a second thought let me try to explain what I think about the “contracts” per se as a legal interest to be balanced. I have never seen such a legal principle. One thing is to say that using contracts (or licenses) a legal principle could be advanced (e.g. IPR or others) and another one that simply because a contract is signed access to data can be restricted. Sorry I cannot agree to that. If there is no additional legal principle backing the objective and purpose of the contract it should not be allowed to restrict access by giving to a third parties the data (or non-existing rights over the data; by that meaning rights that the researcher herself does not have). This is standard (I would even say illegal) practice though. Legally regulated embargo periods could be THE ONLY EXCEPTION (as soon as they refer to not to the data, which should always become public immediately, but only the publication or other use e.g. patenting et al, of the data).
Of course I am always referring to publicly funded research and this should also be made very clear.
Please notice that the EU always refers to an additional public interest being the signing of a contract per se. For example, in the Guidelines the following legitimate interest to withhold data are listed (which resemble your list of legal interests addressed in your draft guideline proposal:
– to protect results if they can reasonably be expected to be commercially or industrially exploited;
– the need for confidentiality in connection with security issues;
– incompatibility with existing rules concerning the protection of personal data;
– if the achievement of the main aim of the action would be jeopardised;
— other legitimate reasons as soon as they are expressed (and the funder agrees)
HOW CAN THIS BE REFLECTED IN THE EXISTING TEXT?
Restrictive contracts and licenses:
Through use agreements in form of contracts, often denominated as licenses, the contractors can impose restrictions to access and reuse of research data and information that go far beyond legally justified interests. These contracts are, by default, binding to the parties who have signed them.
It is therefore recommended not to enter into individual contracts that unnecessarily restrict access and reuse of research data.
Embargo periods under which priority of publication (based on data) is given to the researcher who produced the data as soon as the time period is reasonable are considered a legitimate interest to be balanced but should not block the release of public domain data as soon as the data are delivered to the public funder, unless other public policy compelling interests as those listed in these guidelines can be invoked.
In particular, it is considered bad practice [and such clauses legally questionable, if not illegal] to de facto change the status of openness of data and metadata by contracts signed by a researcher who possesses them provisionally by, instead of placing them in the public domain, delivering them, through a contract, to third parties (publishers or repositories) who have more resources, economic or otherwise, to farther deny access to third parties.
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Dear_Willi_suggestion_Ple_2.doc

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