Licenses, embargos, and restrictions

There’s a widespread principle that says that access to research data should be “as open as possible, as closed as necessary” (Guidelines on FAIR Data Management in Horizon 2020, p. 4). But there are occasions when data cannot be made openly accessible to everyone. Personal data, patent applications, and defence secrets are just a few of many reasons that can limit when and how data may be reused.

Licenses 

By applying a license to research data, you are telling the person who wants to reuse the data what the terms of reuse are. The FAIR data principles recommend that all data material has a clear license, so that users will know what they may and may not do with the data. Some journals also require data licenses; sometimes they even specify which license(s) the data need to have.

A common requirement is that the data material has a Creative Commons license (CC license). There are six main types of CC licenses which, to varying degrees, limit what you are allowed do with the material. Additionally, there is a CC0 license, which means that you waive all rights to the material. The CC licenses are designed with copyright and similar intellectual rights in mind. As far as Swedish research data are concerned, it is more often a question of the database right katalogskyddet (which protects the compilation of data), even though some data material may reach the threshold of originality and thus be protected by copyright.

In a Swedish context, CC licenses can be applied to research data that qualify for copyright or database right, and it is the copyright holder who decides which license to give their material. Today, different HEIs make different choices regarding licenses, depending on, for instance, their IP policy ("Intellectual Protection"). If you are unsure of the policy in your organisation, please consult with your local research data support unit. (An IP policy can also address what the so-called lärarundantaget, on intellectual property rights of academic staff, means in the HEI. In the Swedish Act on the Right to Employee’s Inventions, it only covers patentable inventions, but some HEIs have widened the scope to other materials, such as study materials and research results.)

There are other licenses that may also be relevant, but they are fairly uncommon. You can always contact your local research data support or SND if you have any questions about licenses.

Embargo

In a publication context, an embargo is the grace period between the publication of an article in a journal, and when a version of the article may be made accessible in an institutional repository (an HEI publication and archiving platform for research publications and student theses, for example DiVA). It usually concerns a pre-print or another early version of the article, but can also be a pdf created by the publisher. (This is the basis for so-called “green” Open Access.)

In regards to research data, an embargo signifies a time period between the end of the project/publication of the research results and the earliest time when the data may be made accessible for reuse and other purposes. Embargos are uncommon but do occur, such as when data contain business secrets for a limited time. This could, for instance, be interviews with programmers in a computer game company, which may contain information about an unreleased game, even though the game isn't mentioned in the research results. In that case, the data are sensitive until the game has been released. This sort of situations will normally be determined in an agreement between the HEI and the company, for example in a Non-Disclosure Agreement (NDA).

We want to emphasise that this type of embargo isn’t recommended, especially not for publicly funded research data. You should only ever place an embargo on data if that's a hard condition from some other party for allowing you to use the data. The basic principle for data from publicly funded research is that they should be as accessible as possible and as protected as necessary.

Other restrictions 

There may be other reasons why access to research data is restricted. If the data belong to another organisation, such as a private corporation or an authority in another country, general access may be restricted or even prohibited. In those cases, it is important to have an agreement on how you, as a researcher in a Swedish HEI, may gain access to the data during your research process. It is also important for you to be aware of what you have agreed on, so that you don’t accidentally turn the data material or parts of it into an official document. Consult with a legal officer in your organisation before you start working with the data.

Some research materials are protected by copyright. If this is the case for your material, there may be limitations for how it can be made accessible to others. The limitations depend on your agreement with the copyright holder and which license has been set on the material.

Research data can be subject to various types of confidentiality. If that is the case, a confidentiality assessment has to be made before the data can be released to someone else. Confidentiality doesn’t mean that data can never be disclosed, only that an assessment has to determine if they can be disclosed.

Many research data contain information of a nature that requires that an ethical review is made before any research can be done on them. If an ethical review was needed to collect and research the material in the original research project, it is likely that the same requirement still applies when another researcher wants to reuse these data, unless the data have been de-identified (anonymised).