Open data as a concept is generally understood to denote data in an open format that can be freely used, re-used and shared by anyone for any purpose.

Research data can be understood as documents in a digital form, other than scientific publications, which are collected or produced in the course of scientific research activities and are used as evidence in the research process, or are commonly accepted in the research community as necessary to validate research findings and results. Research data include statistics, results of experiments, measurements, observations resulting from fieldwork, survey results, interview recordings and images. They also include meta-data, specifications and other digital objects. Research data are different from scientific articles reporting and commenting on findings resulting from their scientific research.

Open access means the practice of providing free online access to the results of publicly funded research to end users, allowing commercial and non-commercial reuse, with attribution only.

When publishing data, it is important to keep in mind that not all data can be published by default. Data should be published observing the “as open as possible and as closed as necessary”. In particular, data that may jeopardise the following are excluded from open access[1]:

• Protection of personal data[2], privacy or personality of the individual (such data must be handled in accordance with the General Data Protection Regulation - GDPR[3])
• Protection of sensitive data such as data about national security, defence, public safety, critical infrastructure
• Protection of confidential statistical data
• Protection of trade, professional or business secrets
• Intellectual property rights (typically data relating to inventions that may be protected by a patent or utility model, the disclosure of which would disclose the substance of the invention, which would constitute an obstacle to patentability, as well as industrial designs or trademarks)
• Intellectual property rights of third parties

Copyright

Copyright is regulated in Act No 121/2000, on copyright and rights related to copyright, as amended. The subject of copyright is a literary work, an artistic work and a scientific work which is the unique result of the author’s creative activity and is expressed in any objectively perceptible form, including electronic form, permanently or temporarily, regardless of its scope, purpose or meaning.

In the context of research data, it should be noted that copyright does not protect the data itself, the idea, procedure, principle, method, discovery, scientific theory, mathematical and similar formula, statistical graph. Therefore, it can be concluded that research data themselves will not be protected by copyright in many cases, as they cannot be understood as a work of authorship. In each individual case, it must be assessed whether the definitional features of a work of authorship referred to in the first paragraph are met.

Copyright provides protection for databases, i.e. a collection of data which are the author’s own intellectual creation by way of selection or arrangement of content, the components of which are systematically or methodically arranged and individually made available electronically or otherwise. A database is a collection of independent works, data or other elements.

Author

The author is the natural person who created the work. If the work has been created by two or more authors, the rights of all co-authors shall be joint and several. The author cannot be a legal person or, for example, an artificial intelligence.

Fundamental rights

Copyright is divided into personality and property rights. Personality rights belong exclusively to the author or co-authors. The author has the right to decide on the publication of the work, to take authorship, including the right to decide whether and how his/her authorship should be indicated in the publication and further use of his/her work. The author has the right to inviolability of his/her work, in particular the right to grant permission for any alteration or other intervention in his/her work. If the work is used by another person, this must not be done in a way that diminishes the value of the work. Personality rights last only for the lifetime of the author; however, after his death, no one may take authorship of the work. The work may only be used in a manner that does not diminish the value of the work.

The second group are property rights, which last throughout the author’s lifetime and for 70 years after his/her death. In the case of co-authors, the property rights last for 70 years after the death of the last author. The fundamental property right is the right to use the work, which includes the right to reproduce the work, the right to distribute the original or a copy of the work, the right to rent the original work or a copy thereof, the right to lend the original work or a copy thereof, the right to exhibit the original work or a copy thereof, and the right to communicate the work to the public.

The author cannot waive his/her rights, they are not transferable. Property rights can be licenced to third parties.

Employee work

In the event that an author’s work was created in the course of the performance of duties arising from a labour-law relationship, the author’s employer shall exercise the property rights in its own name and on its own account. The personality rights of the author remain unaffected, but a fiction of law applies under which the author is deemed to have consented to the publication, adaptation, processing of the work, including translation, combination with another work, inclusion in a collective work, making the work public under the name of the employer, or completion of an unfinished employee work. In the case of an employee work, the decision to grant a licence is generally made by the employer.

The person authorised to represent the BUT in the exercise of proprietary copyright is the Dean or the Director of a component; in the case of works intended for publication in scientific journals or conference proceedings, the author or co-authors may also be authorised to represent the BUT, but the prior consent of the Dean is required. This setting is based on the Internal Directive No 3/2019, on the management of intellectual property of the BUT.

Database rights (special rights of the maker of a database)

Databases are subject to the special rights of the maker of a database, which include the right to extract[4] or re-utilise[5] all or a qualitatively or quantitatively substantial part of the content of the database and the right to grant another the right to exercise this right. The maker of a database is the natural or legal person who has made the database on his/her own responsibility or for whom another person has done so on his/her initiative.

The special rights of the maker of a database shall last for 15 years after the database was made, however, each new qualitatively or quantitatively substantial contribution to the database shall result in a renewal of this period.

The right of the maker of a database which has been made available to the public in any way shall not be interfered with by an authorised user who extracts or re-utilises qualitatively or quantitatively irrelevant parts of the content of the database or parts thereof for any purpose, provided that such user uses the database in a normal and reasonable manner, not systematically or repeatedly, and without prejudice to the legitimate interests of the maker of the database, and that he/she does not cause harm to the author or the holder of rights related to copyright in the works or other subjects of protection contained in the database.

The following gratuitous licences to the content of databases are regulated by law:

• Use for personal need, with exceptions specified in Section 30(3) of the Copyright Act;
• Use for scientific or educational purposes, if the source is cited, to the extent justified by the non-profit purpose pursued; and
• for the purposes of public security or administrative or judicial proceedings.

Data licensing

Open access to copyrighted data or databases can be provided through appropriately chosen public licences. The most used public licences are the Creative Commons, but it is recommended to use the Open Data Commons for open data licensing, while licences such as GNU GPL or EUPL are suitable for software.

Creative Commons (CC)

By publishing a work under Creative Commons, a proposal to enter into a licence agreement is made. This proposal is addressed to an unspecified group of persons with predetermined conditions that are not open to negotiation. The offer is tacitly accepted by the licensee, i.e. only by actual acts in accordance with the licence terms. The licence is irrevocable, royalty-free and may be redistributed. The current version is 4.0. CC is not recommended for software licensing. CC is typically used to share “traditional” works of authorship, such as photographs, videos, music or publications.

The CC licence is composed of 4 basic building blocks that can be freely combined, but not all of them are compatible with each other and not all of them are suitable for licensing databases. The combination of the elements determines the content of the licence under which the work may be used. The licence applies to the databases as a whole, it does not distinguish between individual data, which can be problematic if different conditions apply to the data themselves or to parts of the database.

Further, they do not distinguish whether the use of the database creates a new derived database or other content. If “No Derivate Works” is used, it effectively prevents the data from being used to create any content (i.e., for example, processing the data into graphs, analyses, maps or models, etc.), so it is strongly discouraged. It is also not recommended to use previous versions of Creative Commons (i.e. below CC 4.0).

Attribution “BY” allows reproduction, distribution, display and communication of the work and derivative works only with attribution.

Non-commercial “NC” allows others to reproduce, distribute, display and communicate the work and derivative works for non-profit purposes only.

No Derivative Works “ND” allows others to reproduce, distribute, exhibit and communicate only the work in its original form, not derivative works.

Share Alike “SA” allows others to distribute derivative works only under the terms of an identical licence.

Web application for selecting the appropriate licence: Choose a License (creativecommons.org).

Open Data Commons (ODC)

Open Data Commons was created in response to the need to appropriately licence open data. It is based in principle and content on the Creative Commons. ODC licences have three variants:

ODC-BY allows the database to be reproduced, extended, modified, transformed and used to create derivative content. Where a database, part of a database or a derived database is substantially used to create another database or a collective database, there is a condition that the new database or collective database must be disclosed together with a reference to the licence terms, which shall remain unaffected. If content other than the new database is created, it is sufficient if information is added that the content was created based on the database (i.e., the name of the database).

ODC-ODbL includes the same terms as ODC-BY, except that if a new derived database is created based on a licensed database, the new database must be shared under the same or equivalent licence. This condition does not apply to collective databases. If the database or a modified version of the database is redistributed, technological restrictions (e.g. DRM – Digital Rights Management) can only be applied if a database without these restrictions is also redistributed.

PDDL data/database are shared as a free work (=public domain), i.e. a work to which no copyright is attached. Under the Czech legal order, an author cannot waive his/her rights, so this must be interpreted as granting a gratuitous licence to the maximum extent possible for any use of the work with the assumption that the author will not claim his/her rights in the future.

Further information and detailed licence terms are available at: https://opendatacommons.org/.

Licensing mechanism

Once a suitable licence has been selected, the text needs to be appended to the data or database. The simplest way is to include a declaration that the data are published under a licence, together with a reference to the wording of the licence terms. The declaration must be displayed in a prominent place so that any potential user has the opportunity to see it.

Example:

This {DATA(BASE)-NAME} is made available under the Open Data Commons Attribution License: http://opendatacommons.org/licenses/by/1.0/.

or

This {DATA(BASE)-NAME} is made available under the Open Database License: http://opendatacommons.org/licenses/odbl/1.0/. Any rights in individual contents of the database are licensed under the Database Contents License: http://opendatacommons.org/licenses/dbcl/1.0/.

Sources and further information:

Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the reuse of public sector information.

Act No 121/2000, on copyright, on rights related to copyright and amending certain acts, as amended.

Ball, A. (2014). „How to License Research Data“. DCC How-to Guides. Edinburgh: Digital Curation Centre. Available online: How to License Research Data (dcc.ac.uk).

Open Data Commons: https://opendatacommons.org/.

Creative Commons: https://creativecommons.org/.

Czech version of the Creative Commons: https://www.creativecommons.cz/.

[1] A complete list can be found in Article 1(2) of Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the reuse of public sector information.

[2] Personal data are those that can directly or indirectly identify an individual.

[3] Further information on GDPR and data protection can be found, for example, on the website of the Office for Personal Data Protection at: https://www.uoou.cz/zakladni-prirucka-k-gdpr/ds-4744/archiv=0&p1=4374.

[4] Extraction means the permanent or temporary transcription of all or a substantial part of the contents of a database onto another substrate, by any means in any manner.

[5] Re-utilisation means any means of making the whole or a substantial part of the contents of the database available to the public by distribution of copies, rental, on-line linking or other means of transmission.