[open-government] Data Exclusivity and Data Procurement

Sat Feb 11 03:16:28 UTC 2012

Tracey, there are at least 3 policy situations here:

One is the exclusive period of use of data collected or created by a PI(s) who are funded by a government agency under a grant or contract to do publicly-funded research, and either report on the results or commercialize the research. If it is non-commercial research, there may be either rules in the funding instrument or norms in the discipline community that provide guidance on how long the period of exclusive use should last, ranging from none (e.g., NASA's EOS program, where the agency data are streamed freely for immediate use and redissemination) to several years. If the grant or contract is silent on the period of exclusive use, the general expectation is that the researcher will make the data available to anyone who asks after publication of the results. This is very haphazard in practice, ranging from never available, to sometimes, to active deposit in a community data repository (depending on a host of factors). I conducted a study at the NAS in the mid-1990s, "Bits of Power: Issues in Global Access to Scientific Data" (available openly at: http://www.nap.edu/catalog.php?record_id=5504) which had the following recommendation 4 in the Executive Summary:

4. All scientists conducting publicly funded research should make their data available immediately, or following a reasonable period of time for proprietary use. The maximum length of any proprietary period should be expressly established by the particular scientific communities, and compliance should be monitored subsequently by the funding agency.

Several reports, policies, guidelines over the past two decades have similarly set some deposit rule or expectation of disclosure in different disciplines/countries/agencies. The Bermuda and Fort Lauderdale principles in genomic research are well-known examples. More recently, NIH and NSF in the US have required a data management plan to be included with each research funding proposal (for grants over $500K in the case of NIH), although there is no poisitive duty to deposit the resulting data anywhere, which of course begs the question.

If the research is commercialized, however, there is no expectation that the data will be released, with the exception of limited data made available through a patent disclosure.

A second situation occurs in the privatization of government data responsibilities, with the government buying back the data. This may have little practical effect in those countries where the government agency does not make its own data available to the public anyway, or it licenses its data at cost-recovery rates. It does make a big difference, however, in those contries in which the data generated within the government are either in the public domain (waiving copyright protection, as in the U.S.) or the data are made broadly available, perhaps with some common-use license. In the these cases, if the government agency decides to contract out a data collection function that it previously performed in-house, there is generally a concomitant diminution of public domain or openly available data/info. This is a big deal. In the U.S., there have been some laws, such as the Commercial Space Act of 1998, which directs NASA to license back any data that can be provided by the private sector (as opposed to having the private sector build a satellite under contract to NASA, with the agency then owning and operating the spacecraft). There are always various industry lobbying efforts to further restrict the data activities of federal agencies and procure them instead from the private sector, which of course then licenses the data restrictively to the government or the government agency only. The geospatial data industry refers to this process as "productization" and it is not unlike the capture of the intellectual property of publicly funded researchers by the publishing industry in publishing their results in journal articles. There are some publications about this in the data context. See, e.g., the 2001 NAS report on "Resolving Conflicts Arising from the Privatization of Environmental Data" (freely available at http://www.nap.edu/catalog.php?record_id=10237) or pp. 367-370 in a 2003 article by Reichman and Uhlir, "A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment," in The Public Domain, James Boyle, ed., Law and Contemporary Problems 66(also freely available).

The third situation is the first one you raise in your message below re the pharma industry seeking data exclusivity provisions in FTAs. The example I am aware of has to do with pharma witholding clinical trial data and the attempt to control competition in the market for generics. I have no expertise in this area, but I can put you in touch with others who do.

Hope this helps.

Paul

Paul F. Uhlir, J.D.
Director, Board on Research Data and Information
National Academy of Sciences, Keck-511
500 Fifth Street NW
Washington, DC 20001
U.S.A.
Tel.: +1 202 334 1531
Cell: +1 703 217 5143
Fax: +1 202 334 2231
E-mail: puhlir at nas.edu<mailto:puhlir at nas.edu>
Web: www.nas.edu/brdi

________________________________
From: open-government-bounces at lists.okfn.org [open-government-bounces at lists.okfn.org] On Behalf Of Tracey P. Lauriault [tlauriau at gmail.com]
Sent: Friday, February 10, 2012 10:01 AM
To: civicaccess discuss; open-government at lists.okfn.org
Subject: [open-government] Data Exclusivity and Data Procurement

I hadn't heard of this concept before, although I knew it was happening, I just did not know it was labeled - data exclusivity.  I first heard these sorts of ideas when reading about biopiracy in relation to Vindana Shiva's work on the Neem tree.  But that is not quite the same as this.  Also, there is an argument in academia to allow researchers to keep publicly funded produced research data for a set period of time to enable them to produce and publish peer reviewed articles but I was unaware that data exclusivity was the term for that.

I came across it first here - http://www.independent.co.uk/opinion/commentators/sir-elton-john-we-must-end-the-greed-of-these-corporations-6699877.html

In the source of all wisdom and knowledge, wikipedia, I discovered that

Developed countries with innovative pharmaceutical industries (including the United States) have sought data exclusivity provisions in Free Trade Agreements with their trading partners.

In open data, we do not discuss government procurement practices much, for instance, much of our radar and satellite sensors in Canada are built with government funds, but once these technologies are transferred to the engineering firms who built them, the Government enters data procurement agreements to acquire those data for the exclusive use of the government.  The government is then precluded from sharing those data back with its citizens.  This also happens quite a bit with transportation studies, as these are done by engineering firms who own the rights to the data and not the municipality who paid for the research.  Survey engineering results are treated the same way.

Have any others considered data exclusivity and data procurement in your work?

Glen, had you come across this in biology or in any of your science data explorations?  This just released report on research data does not seem to discuss it http://rds-sdr.cisti-icist.nrc-cnrc.gc.ca/docs/data_summit-sommet_donnees/Data_Summit_Report.pdf, unless the concept is called something else.

International folks, is this something you have had conversations about?

Cheers
t

--
Tracey P. Lauriault
613-234-2805<tel:613-234-2805>

"Every epoch dreams the one that follows it's the dream form of the future, not its reality" it is the "wish image of the collective".

Walter Benjamin, between 1927-1940, (http://www.columbia.edu/itc/architecture/ockman/pdfs/dossier_4/buck-morss.pdf)
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.okfn.org/pipermail/open-government/attachments/20120210/3b57f24b/attachment-0001.html>