[open-government] Data Exclusivity and Data Procurement

Sun Feb 12 18:50:07 UTC 2012

This appendix is particularly interesting and provides excelent examples
that are also relevant to the discussion on accuracy, and reliability.
**
*APPENDIX C* *Examples of Successful International Data Exchange Activities
in the Natural Sciences*
http://www.nap.edu/openbook.php?record_id=5504&page=205

On Sun, Feb 12, 2012 at 1:41 PM, Tracey P. Lauriault <tlauriau at gmail.com>wrote:

> Thanks Paul!  It is so nice to be remined to re-read your work.  I had to
> review it for the InterPares 2 Project as part of the Science Focus.  It
> stands the test of time and it is good to get back to it.
>
> What of government data procurement?  Has anyone come across that issue
> and found ways to get government to revisit its sub-contracting clauses?
>
> Cheers
> t
>  On Fri, Feb 10, 2012 at 10:16 PM, Uhlir, Paul <PUhlir at nas.edu> wrote:
>
>>  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
>>
>> 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
>>
>> "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
>> )
>>
>
>
>
> --
> Tracey P. Lauriault
> 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
> )
>

-- 
Tracey P. Lauriault
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
)
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