The times they are a changin’: Access rights to research data

By Steve Bailey

“May you live in interesting times” apparently ran an ancient Chinese curse.  For those associated with the provision of access to research data held by institutions it seems just such times are around the corner.

On the one hand we have the Government’s recent announcement that they support the addition to the Freedom of Information Act of a specific exemption excluding access (with some caveats) to research data relating to research results that have not yet been published.  This would align England and Wales with the existing situation in Scotland and would, in the eyes of many, be a welcome step towards strengthening an institution’s ability to protect its commercial interests and intellectual assets when it comes to their research portfolio.

And yet on the other we have the Protection of Freedoms Act, which will amend the FOIA to provide enhanced access to raw or source data in the form of ‘datasets’ held by public authorities.

It’s worth reading the full text of the relevant section (Chapter 9 Part 6 Section 102) but in essence this change will require institutions to provide access to raw data (unless covered by an existing exemption) and “so far as is reasonably practical” provide the information to the applicant in “an electronic form which is capable of reuse”.

The institution can provide the data under a licence to control what happens to that data, but there is a strong inference that these licences should be open and allow for unrestricted reuse, even for commercial purposes “at no cost to the user/reuser”.  There is some provision for issuing ‘Charged Licences’ which would allow for a fee to be charged to “provide for a reasonable return on investment” but the clear guidance is that these should only be issued in “exceptional circumstances”.  It may well take a considerable amount of case law to define some of these currently rather vague terms…

The Cabinet Office currently has an open consultation process on new guidance for public authorities on how to handle Freedom of Information (FOI) requests for the release of datasets and Jisc and Universities UK are looking to submit a response to this consultation that takes into consideration the collective views of the sector, though this of course does not prohibit the submission of individual responses from institutions.

We have already identified the following as potential areas requiring further clarification and though not wishing to prejudice your comments or limit the scope of them to just this list we would be particularly interested to hear your views on them.

The aspects that we have already identified are:

• The interface between the new regulation controlling access to data sets and the Government’s stated intention to bring in a ‘Scottish style’ exemption for pre-publication research.  In particular what temporary protections may be put in place to cover pre-publication research data during the gap between April 2013 and whenever the new research exemption is to be enacted?
• What constitutes the ‘exceptional circumstances’ under which a ‘Charged Licence’ can be granted?
• Clarification regarding what is deemed to constitute a “reasonable return on investment” when calculating a licence fee and in particular whether this include potential earnings, as well as expenditure to date
• Clarification on what is likely to be deemed ‘reasonably practical’ in terms of the cost limit for making data available in a reusable format and how this might be influenced by consideration of an institution’s size and ‘resources’ as suggested in the draft Code of Practice
• What duty there will be on institutions to alter the format of data that is already held in a machine-readable electronic format, but not in one that is widely available (for example that produced by specialist research equipment)?
• In addition we would also be interested to hear of any discussions you have had regarding IPR issues within your institution, whether these have traditionally been awarded to the academic responsible for creating a work or to the institution, and whether the above changes will impact on current policy