Date post: | 11-Nov-2014 |
Category: |
Education |
Upload: | micah-altman |
View: | 671 times |
Download: | 1 times |
Micah Altman, Harvard University
Agrements for Data Collections 1
Agreements for Data Collections
Micah Altman
Senior Research Scientist, Institute for Quantitative Social Science
(Associate Director, Harvard-MIT Data Center; Archival Director, Henry A. Murray Research Archive )
Harvard University
Micah Altman, Harvard University
Agrements for Data Collections 2
The plan for today? Principles and Drivers
Principles of Agreement Data Lifecycle Stakeholders Areas of Law
Implications for Agreements Motivating Questions Example Checklist
Additional Resources
Micah Altman, Harvard University
Agrements for Data Collections 3
Principles for Agreements Why Formalize Agreements?
Clarify and articulate rights and responsibilities Distribute risk across parties Establish record for later individual/institutional
memory Establish institutional commitment Signal commitment to third parties
Preconditions for success Meeting of minds
intent to agree, mutual understanding of agreement Compatible incentives Compatible capabilities
Agr
eem
ents
for
Dat
a C
olle
ctio
ns:
Prin
cipl
es
Micah Altman, Harvard University
Agrements for Data Collections 4
Common Agreements Involving Data Data Collection Data Deposit/Submission Data Dissemination/Release Institutional Collaboration, Transfer,
Exchange
Micah Altman, Harvard University
Agrements for Data Collections 5
Data Lifecycle* Collection Data Entry & Verification Processing
Identifier assignment Internal metadata Coding Merging Cleaning
Research and Publication Support Documentation, Dissemination Archiving Recoding, Secondary Analysis, Merging(… and back to the beginning)
*(Rinse, Lather, Repeat)
Micah Altman, Harvard University
Agrements for Data Collections 6
What’s Wrong with the Previous Slide* Data is changed all the time. What metadata? Publications emerge before processing
(“the conference is next week”) Dissemination happens early
(sometimes…maybe… if I know you) Much data is never archived
* (So, I lied)
Micah Altman, Harvard University
Agrements for Data Collections 7
Stakeholders Sponsors
Home institution(s) Government sponsors Non-profit sponsors Corporate sponsors
Publishers Print publishers Data archives
Consumers Readers Policymakers Researchers conducting
Secondary Research
Sources Research Subjects Owners of object of study Owners of
supplementary/integrated data
Producers Primary investigators Research group
Secondary investigators Staff Collaborators
Micah Altman, Harvard University
Agrements for Data Collections 8
Legal Issues - Types Intellectual Property
Copyright DMCA Trademark Patent Database Protection Trade Secret
Open Access FOIA State FOI Laws Sponsor Deposit
Requirements Federal Records
Regulations
Contract & License Explicit Contracts &
Licenses Shrinkwrap/Clickwrap
Personal Information IRB’s and 45 CFR 26 HIPAA FERPA Invasion of Privacy Defamation
Micah Altman, Harvard University
Agrements for Data Collections 9
Legal Issues - Observations Intellectual Property
Frequently there is a big gap between ownership and control of data Quantitative data is much more often protected by license (and possibly
by DMCA if embedded) than by patent, database protection, trademark, trade secret
Even data that combines existing sources is not necessarily “derivative work”. Merged research databases often exhibit sufficient creativity in selection & organization to constitute an original work
Open Access Research produced under contract to federal agency constitute federal
record, and are subject to FOIA Grant-funded research does not, unless specifically used to support
regulation. More difficult or impossible to FOIA Most sponsor & journal deposit requirements are not enforced or
monitored Exception: A few journals enforce data deposit for publication effectively.
Primarily in bio-sciences.
Micah Altman, Harvard University
Agrements for Data Collections 10
Legal Issues – Observations (Continued) Contract & License
Contract involved exchange of benefits, license is a grant of permissions Shrinkwrap/clickwrap licenses should not be ignored Most data restriction through license
Personal Information Generally, difficult for individuals to sue institutions and be awarded much However, risks of government fines, penalties, curtailing of research grants
significant for institutions conducting federally funded research Releasing data is generally a problem ok if the data is not personally identifiable
(social security numbers, credit card numbers, home address, names, etc.), data is public record and/or historical, or data subjects gave informed consent to release
For most data, removing the 19 enumerated direct and indirect HIPAA identifiers is sufficient to show good faith
However, be aware that some data is very difficult or impossible to deidentify: A/V (unless image and voices are disguised) Qualitative data (care must be used to remove identifying context like schools attended, as
well as explicit identifiers) High-dimensional sparse data, such as Netflix movie rankings, can be linked using external
sources
Micah Altman, Harvard University
Agrements for Data Collections 11
Stakeholders and Legal Requirements
Personal Information
Open accessIntellectual Property
Contract
SponsorInterests
HIPAA FERPA45 CFR 26
Invasionof
Privacy
Defamation
FOIAState FOI
PublisherInterests
DMCACopyright
Trademark
Patent Trade Secret
Contracts Licenses
Click-wrapagreements
Contributor Interests
ConsumerInterest
Micah Altman, Harvard University
Agrements for Data Collections 12
Stakeholders Implicated as Information Flows
Research sources:- Research Subjects.- Owners of subject material- Owners of supplementary data
Research sponsors:- Home institution- Funding sources
Project Personnel:- Investigators- Research Staff
Research Publishers- Print publishers- Research archives
Research Consumers- Readers- Secondary researcher
LicensingCopyrightDMCAInformed ConsentPrivacyTrade secrets
LicensingFreedom of InformationCopyright
Copyright
CopyrightLicensing
Fair Use
InformationTransfer
PrivacyConfidentialityIntellectual Property
Replicable ResearchPolicy RelevanceAccessibility of ResearchProtect IPAvoid third party IP/Privacy Issues
Replicable ResearchPublishPromote use of PublicationsTrack use
Replicable researchPromote use of their publicationsProtect publisher IPAvoid third party IP/Privacy Issues
Replicate and extendSecondary analysisLink research
Stakeholder Concerns Legal Issues
Micah Altman, Harvard University
Agrements for Data Collections 13
Agreement General Questions What actions are to be undertaken by each
stakeholder? What risks and responsibilities does each
stakeholder bear? What benefits are exchanged? How will the agreement be monitored? What is the expected timeline for the
agreement as a whole, actions, risks, exchanges, monitoring?
Micah Altman, Harvard University
Agrements for Data Collections 14
Motivating Questions for Data Agreements Motivating Questions Who are the stakeholders? What do the stakeholders require and want? How does the agreement engage with the
data lifecycle to ensure these things? What are the motivating questions, use
cases, scenarios? What incentives do the stakeholders have to
cooperate?
Micah Altman, Harvard University
Agrements for Data Collections 15
Data Agreement: Materials Nature of collections
Legal restrictions: Copyrighted? Public domain? Factual? Other types? (etc.) Accompanying metadata? Formats being delivered? Software required to read/use those formats? Completeness. Other material required to use or understand collections?
Frequency When, and if applicable, at what intervals, will the materials be delivered? Is there
any ongoing duty to update or upgrade the materials? Review/Monitoring
What level of review/acceptance, if any, and by whom Time period in which for review? What happens if the reviewer determines that the materials are in some way
deficient? Responsibilities related to Materials
Will the depositing institution have any other obligations with respect to the Materials once they are delivered?
Maintain updates? Maintain particular feeds or pipelines? Create and maintain a related website? Install/use software? (Related licensing requirements?) Technical Standards compliance?
Micah Altman, Harvard University
Agrements for Data Collections 16
Data Agreement: Rights Use rights
Reproduce, distribute, publicly display, or publicly perform some or all of work. Prepare derivative works of or otherwise modify? Own derivative works? Create databases incorporating, re-arrange or compile the collections Cache, store , archive, reformat.
Ownership Is copyright transferred? (Generally not necessary, not always possible.) Ownership of right title and interest?
Are sublicense rights needed? To whom? Can sub-licensees grant rights? Scope
Can depositor withdraw materials or rights? Under what conditions? Term/Duration of licenses? Limited to term of agreement? Exclusivity? Limited to certain purposes – preservation, personal, instructional, research, non-
commercial? Privacy restrictions – re-identification, linking, merging Territorial restrictions Transferability of license? Revocability?
Micah Altman, Harvard University
Agrements for Data Collections 17
Data Agreement: Obligations Describe the scope of any obligations to review, manage, test, catalog, index,
organize, host, make available, store, preserve, archive, retrieve, maintain, and update, etc. What is the duration of this obligation? The term of the agreement? in perpetuity?
Term of obligation? Terminates with agreement? Where will materials be stored, hosted, (etc.)? Are there other conditions under which materials may be deaccessioned?
Obligations to distribute materials? To whom? Under what conditions? Are there limitations on the fees distributors may charge users? Is there an obligation to allow redistribution by third party? Is there a specified end-user license or other required conditions? Does it include obligation to
inform end users of restrictions on materials? Must distributor obtain users assent to license? For what term?
Are there obligations to update materials? Under what conditions? Notifications, obligations to notify of changes of copyright/privacy status? Attribution, cite in publications or derivative works? Mention in advertising? Obligations to comply with FOIA (and related state government statutes) requests
and/or subpoenas for original materials? Direct response required, or simply permit the Government access to catalog and repository for requestor to search for such materials?
Does either party have any obligation to train or provide other assistance to the other party regarding the use or manipulation of the Materials? metadata creation, etc.?
Micah Altman, Harvard University
Agrements for Data Collections 18
Data Agreement: Term Term of agreement?
Time period; based on conclusion of work; perpetual? If ongoing, is agreement in accordance with specific provision? Are there renewal terms? Is renewal automatic? Is there a limit
on renewals? Termination rights
Do both parties have the right to terminate for material brach? Is there a period allowed to cure the breach?
Enumerated causes for termination? Or termination allowed without cause?
Right to terminate based on bankruptcy/dissolution/sale/transfer of ownership of parties?
Termination effects Continuing licenses to collections (either transferred or
promised) post termination? Continuing obligations to preserve, update, or perform other
actions with respect to collections?
Micah Altman, Harvard University
Agrements for Data Collections 19
Data Agreement: Fees What fees will be charged, by whom, and for
what? Are fees adjustable, and on what basis? When are fees due/payable? Are other costs incurred explicitly waived?
Micah Altman, Harvard University
Agrements for Data Collections 20
Data Agreement: Warrantees Representations and warranties concerning the intellectual property
rights in the Materials? the Materials do not infringe any third party’s intellectual property rights
(copyright, patent, trademark, trade secret); the depositing institution has the right to grant the rights granted in the
Deposit Agreement; the depositing institution has confirmed that any copyright restrictions
imposed on the Materials are current and accurate; the Materials do not violate any third party’s right of privacy or publicity, and
are not defamatory or libelous. Warranties regarding the accuracy, reliability, currency or
completeness of the Materials? Other general warranties
that the depositing institution has the right to enter into the agreement that the Deposit Agreement does not conflict with any other agreement that the person executing the agreement has the authority to do so on
behalf of the depositing institution that the Materials and the depositing institution’s performance under the
Deposit Agreement complies with
Micah Altman, Harvard University
Agrements for Data Collections 21
Data Deposit Agreement: Disclaimers General Disclaimers. Each Deposit Agreement should include a general disclaimer of consequential, indirect, punitive
and incidental damages. Specific Disclaimers. Disclaiming liability for any loss or damage to the Materials. Are there other specific disclaimers
that are appropriate for the Materials? Limitation of Liability. Include a dollar limitation on the direct damages that may be recovered under the Deposit
Agreement? If included, will the limitation of liability protect both parties? In general, the limit on direct damages should have some relationship to the risks involved, the potential damages that may be
incurred, and each party’s need/desire to limit the risk undertaken pursuant to the agreement. Note that if no fees are charged under the Deposit Agreement, limiting direct damages to the fees charged may not be
enforceable in certain states because such a provision does not provide an effective remedy. Indemnity based on breach of contract or of the representations and warrantie? Will the the depositing institution indemnify, defend and/or hold harmless the receiver from third party claims?
alleging that the Materials infringe a third party’s intellectual property rights; alleging that the Materials infringe a third party’s rights of privacy and/or publicity; alleging that the Materials are defamatory or libelous; or alleging property damage or injury; alleging tortious interference; based on the depositing institution’s violation of law; based on the depositing institution’s negligence or willful misconduct.
Mutual indemnity? Under what circumstances, and with what exceptions?
Notes: Often request for indemnity will trigger a request for mutual indemnity. Indemnity and warranties are overlapping However, biggest risk is from third parties – indemnity, not warranty. Consider explicitly excluding liability based on specific disclaimers. If fees, or dollar limits are mentioned, consider excepting indemnity from these limits? Be aware that depositors may have a limited ability to enter into an indemnifying agreement (e.g. government entities sometimes
cannot enter such agreements), or may not have the resources to provide effective indemnification should a third party allegation arise.
Micah Altman, Harvard University
Agrements for Data Collections 22
Data Deposit Agreement: Miscellaneous Is the agreement, or the information exchanged by parties
confidential? Who are points of contact? Governing law; jurisdiction; venue? Dispute resolution procedure? Force majeure? Waiver and severability? Entire agreement provision? Copyright or licensing of agreement itself (e.g. Creative
Commons)? Notices Amendment and modifications Assignment Relation of the parties/independent contractors Advertising clauses; use of institutional logos and trademarks
Micah Altman, Harvard University
Agrements for Data Collections 23
Variation: Data Dissemination Generally includes limited use rights
Analysis, research Often no redistribution/derivative works rights
Point in time license, no termination for specific release
Generally includes obligations Attribution Notification by user to source of problems Privacy obligations
Often no warranties, indemnification
Micah Altman, Harvard University
Agrements for Data Collections 24
Variation: Data Collection Agreement Look ahead to rights desired under deposit
and dissemination agreements Data collection agreements should grant
rights/obtain informed consent for these uses
Micah Altman, Harvard University
Agrements for Data Collections 25
Resources Library Collection Development?
Library of Congress Digital Preservation Website:<http://www.digitalpreservation.gov>
Data Preservation Alliance for the Social Sciences:
<http://www.icpsr.org/datapass/>
Agr
eem
ents
for
Dat
a C
olle
ctio
ns:
Res
ourc
es
Micah Altman, Harvard University
Agrements for Data Collections 26
Questions?
Questions about this talk, etc.:[email protected]