Why is a licence needed to make data available?
Data is material that is owned by the owner. In order for a third party (someone else) to use the material, the owner needs to grant permission. This permission is called a licence. In order to make it clear what material is covered by the permission and whether there are any limits on the permission, it is advisable to adopt formal permission in the form of a licence contract.
Why does TERN promote open access licences?
The Australian Government is moving towards a more open structure which includes open access to information as part of its transparency and good government policies . As part of this commitment, the Department of Innovation, Industry, Science and Research (DIISR ) has made a condition of its grants to TERN an obligation to make data as freely available as possible and appropriate . A copy of the Australian Government’s Declaration of Open Government can be found at: http://www.finance.gov.au/e-government/strategy-and-governance/gov2/declaration-of-open-government.html.
The Australian Research Council has also announced its open access policy, effective from 1 January 2013, which is available here: http://www.arc.gov.au/applicants/open_access.html. The open access policy states that in order to obtain the maximum benefit from research, research publications must be disseminated as widely as possible. While this statement applies only to research publications, it is consistent with the broader goals of the Australian government and with TERN.
TERN is an integrated ‘network of networks’ designed to serve ecosystem research in Australia. It builds on significant past investments by scientists and governments to understand Australian ecosystems. TERN is establishing secure storage to help integrate and share data, information and knowledge through a number of terrestrial ecosystem science and observational facilities.
TERN’s Mission is to build the relationships and infrastructure that will enable sustained, long-term collection, storage and sharing of ecosystem data to meet terrestrial ecosystem science and natural resource management needs in Australia.
Part of that infrastructure is the legal infrastructure necessary to connect data rights holders and data users in a way that enables the most effective sharing of information. To this end, TERN promotes open access licences to enable sharing of data to the largest number of users with the least possible restrictions on the use of the data.
Open access can also assist in broader aims of personal or institutional data management, providing a long term storage vehicle to prevent data loss and minimising requirements to repeat initial and expensive (in terms of time and money) data collection processes. It can also help individuals meet publisher and funder requirements of making underlying data available as a condition of publication of an academic paper.
If I want to grant an open licence why is a formal licence necessary?
A licence is a contract between the owner and the user. It does not matter whether the owner imposes onerous conditions or no conditions – it is still a contractual relationship. An open licence is still a contractual licence however informally it is presented.
A formal licence is also a good data management tool by ensuring that specific issues relating to the management of data are addressed. If a data provider wishes to be attributed, then this is included in the licence. If there are other conditions, then constructing the licence an opportunity to think through the requirements and to ensure that such conditions are present.
Can I rely on a statutory licence (e.g. under the Copyright Act 1968 (Commonwealth))?
Yes you can – provided that the material you intend to licence is covered by copyright. If it is not, then releasing it in such a manner means that it is released without any licence terms at all.
Who is the licensor and who is the licensee?
The licensor is the person or entity that owns the data (or has the rights to grant a licence) for a third party to use the data. The licensee is the person using the data. The licensor selects the licence; the licensee (user) acknowledges the licence, agrees to its terms and complies with the licence conditions (including acknowledging the source of the data) when accessing and using the data.
Yes. The TERN Data Licensing Policy does not require real-time data delivery. If circumstances require that data be withheld for a reasonable period of time, this is permitted. However, it is generally not good practise to make restricted access or delayed release the default position as the specific reasons for the delay or restriction should be consider on a case by case basis. This includes delays relating to quality assurance processes.
When considering whether restricted access is appropriate, thought should also be given to whether metadata can be released ahead of the underlying data. It may be appropriate to release metadata while the underlying data is still being prepared (including undergoing quality control processes).
There are very few circumstances where such an approach is appropriate if the objective is for open access to data.
Can data be restricted or its full release be delayed for some purposes and not for other purposes?
Yes. Metadata can include information that certain data is being withheld for a specified period of time and for a specified purpose but if a person desires access in the meantime, they may contact the data manager responsible for the data. The primary aim of such a position is to allow for the completion of a thesis or paper for which the data was initially collected. There are very few circumstances where such an approach is appropriate if the objective is for open access to data.
The answer depends on the relationships between the various parties involved. Where the Principal Investigator (PI) is self-funded and self-employed, then the PI owns the data (unless a contractual arrangement such as a funding agreement, changes the ownership). Where the PI is employed and collects the data as part of the PI’s job description, then unless there is another arrangement in place, the owner is the PI’s employer. If a third party is funding the collection, then the third party may also have shared rights or exclusive rights. The addition of research assistants, collaborative arrangements between institutions and students can complicate the picture further.
TERN is able to accept any terrestrial ecosystem data from any person entitled to provide it for open access release.
In general, data collected under TERN funding must be freely and openly available and should be submitted to TERN. If you have the rights to grant a licence over ‘non-TERN’ data then you can submit that data to TERN. If you do not have the rights to grant a licence, then you need permission from the person/entity that does. Rights to grant a licence reside with the owner of data or with a licensee with permission to sub-licence the data.
If you are in doubt as to whether you have the right to grant a licence over data for submission, then you should obtain legal advice (whether independently or from your organisation’s legal officers).
TERN encourages the attribution of all data sets where appropriate. Submitters are able to nominate how they would prefer to be attributed.
Please contact the relevant TERN Facilities directly to discuss data submission to TERN.
Copyright is a statutory right created by the Copyright Act 1968 (Commonwealth). It recognises creative intellectual endeavour by authors and artists and rewards such endeavour by granting exclusive rights to use and exploit the outcome of the endeavour.
Copyright protects, amongst other things, literary works, computer programs, artistic works, photographs, statues, models, sketches, published editions (including journals and newspapers), sheet music, films and sound recordings. It protects the expression of an idea but not the idea itself.
Copyright vests in a natural person who creates the copyright works. Where that person is creating the rights in the course of employment, the copyright often vests in the employer. Where there is no natural person to whom creation of the copyright work can be attributed, copyright will not subsist.
A statutory licence is a licence created under the terms of the relevant statute. In this instance, the Copyright Act 1968 sets out the statutory rights and rules which govern copyright and provides for a means of granting permission to exploit those rights. One means of exploiting copyright is under the auspices of a formal licence (contract). However, the Copyright Act provides that a formal licence is not necessary provided that the grant of the licence meets the conditions in the Act.
The data owner or licensee who has rights to sub-licence the data (make the data available to third parties) chooses the licence type (and hence the licence conditions) when making the data available.
A TERN licence is tailored to cover data and data sets. It is not limited to copyright material. A Creative Commons Australia licence covers only material which is subject to copyright. The new release of international Creative Commons licences which recognises database rights is applicable only in the European Union. Database rights are not currently recognised as a category of material receiving copyright protection in Australia.
If you are in doubt as to whether your data is subject to copyright, or which licence is most appropriate for your purposes, you should obtain your own legal advice (whether independently or from your organisation’s legal officers).
An Attribution-only (“BY”) licence has as its only condition an obligation to acknowledge the source of the data when using it.
An Attribution-Share-Alike (“BY-SA”) licence also requires attribution but also requires users to make their own work available to others on terms which are no less open (that is, if you want to take advantage of a person’s data, then you need to make your version of it available to others so that you are not in effect appropriating it).
An Attribution-No-Derivatives (“BY-ND”) licence requires attribution and prohibits a user making any derivatives of the original data product (that is, you can use it but you cannot change it in any way).
More information about the different licence conditions is available at http://www.tern.org.au/datalicence
A TERN licence can be used with data from any source; the important point is to ensure the data rights holder has selected the licence.
There is no financial cost to a data rights holder to apply a TERN licence to data.
The metadata attached to a data set should identify the person or organisation to be attributed and the form the attribution should take.
[Authors]. [Year and version number of data product]. [Data product title]. [DOI]. Accessed [Date accessed]. Obtained from [server URL], made available by the [TERN Facility] (http://[URI]) of the Terrestrial Ecosystem Research Network (TERN, http://www.tern.org.au).
It is the responsibility of the data rights holder granting the licence to enforce the licence, should the need arise. TERN is only acting as a hub or hosting centre for the data.
TERN may be able to assist a data rights holder to find out how to contact a person who is suspected of breaching data licence conditions, depending on the information collected by the Facilities about users.
TERN also has a role in community education about licences and their use; reporting by data rights owners to TERN about problems experienced by the data rights owners will help TERN to target its community education strategies to minimise this activity.
For more information about TERN’s role in managing complaints and enforcing licences, please see [insert reference to complaints process].