How much right is there in an observation record?

[peterdesmet]

In the context of a collaboration with a nature NGO, I am trying to figure out the rights an observer has over his/her observations. My assumption is not much.

Here are the rights I think could apply:

• Copyright
• Sui generis database rights (SGDR)
• Privacy rights
• Terms of service between observer and NGO offering platform to record observations
• Data use agreements

Copyright

From Patterson et al. 2014 (p 3):

in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, or discovery, regardless of the form in which it is described, illustrated or embodied in such work

Observations can be viewed as facts ("this bird was there then") or discoveries, neither of which are protected by copyright.

SGDR

In some European countries (including Belgium) there are sui generis database rights (SGDR). These apply to the database (structure), but not its content. Since we plan to publish the data as Darwin Core Archives (a standard), the SGDR to the original database do not apply.

Privacy rights

A collection of observations can tell you something about the observer, which might be a privacy issue. If we anonymize the observer name, I don't think these rights apply.

Terms of service

Observers record their observations in a platform maintained by the nature NGO. The terms of service of this platform could hold the NGO reliable for unwarranted data use.

Data use agreement

User might have to agree with a data use agreement before they can use the data. This DUA could impose restrictions/obligation to the data user.

Questions

1. The observer does not have any rights over his/her observation records if the context described above => observers are not protected. True/false?
2. If the data were to be leaked online, the DUA agreement does not apply to users finding the data that way => users are protected. True/false?
3. If the data were to be leaked online, the NGO could be held reliable for breaking the terms of service. => observers can hold NGO reliable. True/false?

[peterdesmet]

@kcranston @gmhagedorn @jar398 can I use your expertise on another data rights question? #44

[gmhagedorn]

I think the statement about SGDR is wrong. The structure of a db may in fact be copyrightable, if it is truly creative and not simple a logic conclusion from requirements. This is rarely the case in science.

SGDR do protect structure as well as content indirectly by protecting the investment a company made into a database-business sector. It is the investor being protected, not the "author" or "worker" doing things. Here the requirements for protection depend in part on whether it is a selection (easier to protect) or aims to be complete (whether it is yet or not, more difficult to protect).

[gmhagedorn]

Terms of service may apply as a license. It depends in part whether click-wrap licenses are legally valid (not so or very doubtful in some European countries), and it may depend on whether they are truly implemented (e.g. not bypassed by an automated and generic "retrieve all public content" process). Not my area of expertise...

[peterdesmet]

Included DUA in issue and rephrased questions.

[peterdesmet]

@gmhagedorn Thanks for feedback. SGDR are notoriously complicated. One presenter labelled them as "Maybe one of the worst legislative pieces". :-)

Regarding SGDR on structure: would you say these still apply if the factual data were published in a standardized format (e.g. Darwin Core archive)?

Regarding SGDR protecting an investment: is the work that went into scientifically verifying records an investment (and thus protected)? Again from Patterson et al. (p 5):

In expressing this opinion, the European Court of Justice appears to eliminate any non-creative arguments for protection of this and similar databases. This is relevant to nomenclatural or taxonomic databases in which the format is dictated by technical considerations, rules, and discipline-specific data standards and which require intellectual effort and skill, but not creative originality. That is, such databases are unlikely to meet the criteria for protection.

[jar398]

What's the scenario - is it that the NGO is afraid that an observer might go after them for use of observations already contributed with no prior agreement between the NGO and the observer?

(I deleted my previous comment because after rereading it it seemed off-topic... but my bottom line was, you seem to have adequate understanding of the problems, and you'll never get total clarity.)

[peterdesmet]

@jar398, thanks for the feedback, including the comment you deleted, which was still helpful.

Some context: I am working out a collaboration with the NGO to open up their data. The concept of open data is new to them, and they bring up several legal rights observers (might) have over their data. I don't think these rights apply, and I just wanted a second opinion on that.

I think they need to find an agreement with their volunteer observers without relying on legal rights, because there is not much protection to be had there.