Data is free or hidden – there is no middle ground

Science commons and other are organising a workshop on Open Science issues as a satellite meeting of the European Science Open Forum meeting in July. This is pitched as an opportunity to discuss issues around policy, funding, and social issues with an impact on the ‘Open Research Agendaâ€ . In preparation for that meeting I wanted to continue to explore some of the conflicts that arise between wanting to make data freely available as soon as possible and the need to protect the interests of the researchers that have generated data and (perhaps) have a right to the benefits of exploiting that data.

John Cumbers proposed the idea of a ‘Protocolâ€ for open science that included the idea of a ‘use embargoâ€ ; the idea that when data is initially made available, no-one else should work on it for a specified period of time. I proposed more generally that people could ask that people leave data alone for any particular period of time, but that there ought to be an absolute limit on this type of embargo to prevent data being tied up. These kinds of ideas revolve around the need to forge community norms – standards of behaviour that are expected, and to some extent enforced, by a community. The problem is that these need to evolve naturally, rather than be imposed by committee. If there isnâ€ t community buy in then proposed standards have no teeth.

An alternative approach to solving the problem is to adopt some sort ‘licenseâ€ . A legal or contractual framework that creates obligation about how data can be used and re-used. This could impose embargoes of the type that John suggested, perhaps as flexible clauses in the license. One could imagine an ‘Open data – six month analysis embargoâ€ license. This is attractive because it apparently gives you control over what is done with your data while also allowing you to make it freely available. This is why people who first come to the table with an interest in sharing content always start with CC-BY-NC. They want everyone to have their content, but not to make money out of it. It is only later that people realise what other effects this restriction can have.

I had rejected the licensing approach because I thought it could only work in a walled garden, something which goes against my view of what open data is about. More recently John Wilbanks has written some wonderfully clear posts on the nature of the public domain, and the place of data in it, that make clear that it canâ€ t even work in a walled garden. Because data is in the public domain, no contractual arrangement can protect your ability to exploit that data, it can only give you a legal right to punish someone who does something you havenâ€ t agreed to. This has important consequences for the idea of Open Science licences and standards.

If we argue as an ‘Open Science Movementâ€ that data is in and must remain in the public domain then, if we believe this is in the common good, we should also argue for the widest possible interpretation of what is data. The results of an experiment, regardless of how clever its design might be, are a ‘fact of natureâ€ , and therefore in the public domain (although not necessarily publically available). Therefore if any person has access to that data they can do whatever the like with it as long as they are not bound by a contractual arrangement. If someone breaks a contractual arrangement and makes the data freely available there is no way you can get that data back. You can punish the person who made it available if they broke a contract with you. But you canâ€ t recover the data. The only way you can protect the right to exploit data is by keeping it secret. The is entirely different to creative content where if someone ignores or breaks licence terms then you can legally recover the content from anyone that has obtained it.

Why does this matter to the Open Science movement? Arenâ€ t we all about making the data available for people to do whatever anyway? It matters because you canâ€ t place any legal limitations on what people do with data you make available. You canâ€ t put something up and say ‘you can only use this for Xâ€ or ‘you can only use it after six monthsâ€ or even ‘you must attribute this dataâ€ . Even in a walled garden, once there is one hole, the entire edifice is gone. The only way we can protect the rights of those who generate data to benefit from exploiting it is through the hard work of developing and enforcing community norms that provide clear guidelines on what can be done. Itâ€ s that or simply keep the data secret.

What is important is that we are clear about this distinction between legal and ethical protections. We must not tell people that their data can be protected because essentially they can’t. And this is a real challenge to the ethos of open data because it means that our only absolutely reliable method for protecting people is by hiding data. Strong community norms will, and do, help but there is a need to be careful about how we encourage people to put data out there. And we need to be very strong in condemning people who do the ‘wrong’ thing. Which is why a discussion on what we believe is ‘right’ and ‘wrong’ behaviour is incredibly important. I hope that discussion kicks off in Barcelona and continues globally over the next few months. I know that not everyone can make the various meetings that are going on – but between them and the blogosphere and the ‘streamosphere‘ we have the tools, the expertise, and hopefully the will, to figure these things out.