The 2000 meeting of the Taxonomic Databases Working Group;10-12
November, 2000; Senckenberg Museum, Frankfurt; Digitising biological
collections
Title: Beset with pitfalls-specimens and databases,
intellectual property and copyright
Simon J. Owens
and Alyson Prior, The Royal Botanic Gardens, Kew, Richmond, Surrey TW9 3AB,
United Kingdom
barriers in
legal issues and intellectual property to the practical
implementation
of a virtual Natural History specimen information infrastructure.
Several
European taxonomic institutions hold exceptionally large specimen collections that are globally
representative of the plant kingdom, and/or the animal kingdom and/or the
fungal kingdom and that support substantial areas of science world wide.
For scientists
working in Universities and institutes world wide, access to these specimens
has been more or less free in money terms-a visit to a collection on site may
incur a rail or air fare and accommodation or a loan of material may require
stationery and postage. Transfer of material, including DNA, is free as long as
a material supply agreement is signed and there is no commercialisation. The
University or institute holding the specimens normally only requires an
acknowledgement from the scientist of the source of the information. Generally
no one scientist, university or institution loses out since consultations or
loans are reciprocal.
Governments are encouraging the
expansion of electronic provision of information and funds for Universities and
institutes are increasingly restricted. It is hardly surprising then that
systematists, ecologists, conservation biologists and others are relishing the
prospect of a situation where the information on any taxon, in any kingdom, in
any institution in Europe is searchable electronically. The need for a costly
visit to another institution may be less necessary.
The European
Natural History Specimen Information Network (ENHSIN) is a pilot network which will develop and assess protocols, standards,
methods and management frameworks and develop a consensus on user needs, which
will enable the development of a shared, interoperable European infrastructure
of specimen databases. It is hoped that the outcomes of the ENHSIN
project will provide a model framework and protocols for the development of a
large-scale network in the longer term (an on-line reference system for
harmonised trans-national access to specimen and related information). In
addition, there will be an assessment of resources for implementation, a
prototype data network, and a body of collaborators for further development.
The Royal
Botanic Gardens, Kew is a partner in the ENHSIN project and its task is to
identify the key barriers in legal issues and intellectual property to the
practical implementation of a virtual natural history specimen information
infrastructure.
We have
already pointed out that scientists have, as far as I can ascertain, exchange
information from their collections with colleagues, collaborators and other
scientists basically freely at source. This is particularly true of national or
public institutions. There may be exceptional circumstances where unpublished
work or professional jealousy or something similar may prevent this exchange.
Generally it is rare.
The question
then is, can they not exchange the same information electronically? Indeed,
several institutions and groups such as CONABIO have already made images of
specimens available on their web pages which can be accessed and [downloaded?]
for free. Specimen information can be obtained from the images and put into yet
another database with apparently few or no restrictions.
In the United
Kingdom, Universities and institutions like our own at the Royal Botanic
Gardens, Kew, face reducing direct financial support from government. In order
to remain accessible to our user community, there is a critical need to
increase other sources of funds and Kew has taken a variety of steps to help
ensure its continuation. However, since Kew is an information rich institution,
it has to look at what intellectual property might generate a stream of income.
This is one of the issues then. It is not the only one.
Intellectual
property issues are compounded by the interpretation of the law, and more
recently by the Convention on Biological Diversity, particularly those articles
on access and benefit sharing and the related issue of prior informed consent.
So what laws
may apply to specimens? For this section of the presentation, we have drawn
heavily on the publication of Weinand et al. (2000) called A copyright guide
for Museums and Galleries. Here I present a few laws which, I believe, may
apply.
The laws that
appear to apply come under the umbrella of intellectual property rights and
include patent law, trade marks and the law of copyright. To make the issue
more complex, it is perfectly possible for different sorts of intellectual
property rights to co-exist in the same product or in the same specimen.
One of the
most important features of intellectual property rights is that they may differ
depending on the country in which you find yourself. One example given by
Weinand et al. (2000) is that the “common law” countries, Australia , Canada,
UK, USA, tend to treat copyright as primarily an economic right. These
countries also rarely place legislative obstacles in the way of transfers or
assignments of copyright. For example, most have provisions which allows
transfer of copyright from employer to employee-“work for hire” in the USA.
In contrast,
the laws of continental Europe, for example France and Germany, tend to regard
copyright more as a right protecting the personality of the author. These laws
tend to resist easy transfer of author’s rights.
The Berne
convention and the Universal Copyright convention have to some extent remedied
such differences on copyright.
Another and
very important limit on all intellectual property, again pointed out by Weinand
et al. (2000), is that they exist totally separate from the rights to the
physical property in the work itself. A good example is that legal ownership of
a book does not in itself enable the owner to reproduce it. You have bought the
book but you don’t own the copyright. One interesting exception, applicable
after 1 August, 1989, is for unpublished works which are left to a Museum under
a will, where the will makes no reference to copyright. In this case the will
is judged to include the copyright assuming the testator actually owned the
copyright before death.
Databases may
have copyright protection and database protection. Copyright protection only
applies if the selection or arrangement of the contents is the author’s own
intellectual creation. Database right relates to the person who takes the
initiative in obtaining, verifying or presenting the contents of the database,
or bears the cost of doing so. These may well be two different persons.
As part of the
European Commission’s drive to harmonise copyright there is now publication
right. If a person spends time and money uncovering and communicating to the
public an old work which had fallen out of copyright, then they will be deemed
to have a publication right.
You might
reasonably now think-OK, I understand these laws and they apply to books,
drawings even databases but there is no intellectual property in a specimen.
Very recently
I have had an enquiry related to herbarium specimens deposited with us together
with detailed notes and photographs of living plants. A bonafide researcher
wishes to access this material but the material was donated by someone else
who, and I do not know the answer to this question, may or may not wish the
researcher to have and use that information. The researcher has argued that
since Kew is a public institution whose botanical records are available to the
public, that any information on the herbarium sheet is available for use
without any question of copyright ownership. This is the nub of the ownership
problem. Just like a book, Kew may own the sheet and the plant material and the
label but does Kew own the information and if there are notes are they
copyrighted? We may have an archived letter describing how the gift was given,
if not only a lawyer can tell me who might own what.
I could assume
that since the material was given to Kew it is public and access should be
readily available as this is a consequence of donation to Kew. Kew has legal
ownership. This is generally what happened in the past and I don’t want to
change that but what if there is a legal challenge?
As part of our
ENHSIN work, Kew has asked several European museums and gardens a series of
question based on Intellectual Property. Currently that data is still being
analysed but there are a number of interesting results coming out:-
No Museum or
garden yet has a firm policy on IPR either for specimens or for databases (yet
laws exist).
All Museums
and gardens believe that they are the owners of the specimens in their
collections. This appears to be an assumption based on accessioning. National
laws may support this and past practice may endorse it. In addition, the Common
Policy Guidelines discussions, recently in Cartagena, which are attempting to
implement best practice, indicate that upon accession the specimen is deemed to
be owned by or the property of the accessioning institute.
Some Museums
and Herbaria have published on their own website, specimen data and images.
Only one has a copyright statement and that is found not on each piece of data
or on each image but at the first page of the website. Copyright may well have
been forfeited in these instances.
For some,
there is limited access to some of the data.
All Museums
and gardens are considering charging but to whom, for what and when is not
clear. Certainly value added charges for information is seriously being
considered and if government funding reaches a level where a service can only
be provided at a charge. There are implications in the UK related to the
Freedom of Information Act but this is currently unclear.
While charging
is being considered, no significant consideration has been applied to policing
any abuses. This can be a costly business.
EHNSIN’s
raison d’etre is to overcome the obstacles to forming a network. For ENHSIN,
the Intellectual property in the ENHSIN project relates not only to the
constituent databases but also to the property of the consortium (the network
and how it works). The Intellectual
Property is the data, the database as well as its arrangements, organisation
and output, reporting software and formats.
It may be that the database contains information from specimens that do
not belong to an institute, but which it has permission to describe in its
database.
If we claim
Intellectual Property rights to a database we already have, it is then a
question of agreeing with ENHSIN partners the nature and conditions of its
use. We could do this by licensing the
ENHSIN consortium to access the database-that is each institute is a party to
one license agreement that licenses the consortium of which each is a
member. This might get round the
problem of losing Intellectual Property rights in the product, and allow
institutes to pull out if they are unhappy with arrangements.
Who are the
users? If we intend to charge users for access to the information in the future
(a way of sustaining the network infrastructure), this may impact on our collecting and on benefit
sharing – will we get permission to collect specimens in Brazil if the
information is freely available and potentially for sale or would we have to
declare to each country through our CBD activities what our intention is with
regard to disseminating the information about the specimens? How would we ensure that others who get the
information do not use it to develop benefits from the material that they then
do not share with the contributing country?
If access is
general Internet based access, we can’t control reuse of the information, even
if we use registration. You are caught
between useful access to the information which means more open/less limited,
and controlled access where reuse is restricted by system controls, which means
less open/more limited and undermines the purpose of the original concept.
CONABIO is the National Commission for
the Knowledge and Use of Biodiversity principally focussed on Mexican
biodiversity. It now has inventories,
databases and networking groups which bring together updated information on
species
distribution
population
status
habitat
use of natural
resources
The process,
databases and systems of compiling and standardising the information are known
as the National Biodiversity Information System (SNIB) and the Mexican
Biodiversity Network (REMIB).
While CONABIO
is a well known and robust system, containing 5,400,000 specimens from a
variety of sources, it still does not have all the biodiversity information
on Mexico held in Biological
Collections, especially those outside Mexico. CONABIO are keen to “repatriate”
these data and one of their prime targets, hardly surprisingly, are the Museums
and Herbaria of Europe.
REMIB is the
mechanism by which Mexico wishes to reach the specimen information and it does
so through a national network of databases.
REMIB is also
the organisation which analyses and determines joint policies on IPR, data
quality control and the means of distributing data. It has 6 institutional
nodes, 5 Mexican and 1 from the USA-it is adding more, 6 from Mexico, 1 from
the USA and 1 from Costa Rica. Interestingly, the REMIB website has both a
disclaimer relating to the conditions for data use and in its chapter 4,
section 2, it discusses the Intellectual Property of the information.
What is clear
is that REMIB is an open-access facility with both members and users having
equal access to the data in the databases affiliated with or developed by
REMIB. This access, however, will be through an access code granted by CONABIO.
REMIB intends
to make efforts to strengthen the free distribution of data but
IPR of databases
developed by other organisations that become affiliated to REMIB will be
respected. This is part of the database copyright law.
REMIB expects
sources of data to be acknowledged and that acknowledgement be maintained in
any subsequent use of the data.
Both the
owners of the data (CONABIO appears to at least here tacitly to accept that
others have ownership of Mexican biodiversity data) and CONABIO are entitled to
block access to certain sensitive data e.g. the locality of rare and endangered
species or data on which a researcher is actively working. So there is free and
restricted access. Use of free access data may require permission from an
individual researcher regarding use.
REMIB do not
accept responsibility for the validation of data-accuracy, reliability or of
the uses to which that data might be put. However, REMIB will ensure that
access to these collections of data is consistent with national and
international laws and any relevant requirements of prior informed consent.
REMIB claims
IPR on any software tool it develops and the regulations related to REMIB are
received every 3 years.
In the past, the legal aspects of
specimens and information have often been ignored for altruistic reasons and
institutes have turned a blind eye or have lacked the resources to police any
abuses.
1 The trend is
already set for free access.
2 There will
be some restriction for sensitive information.
3 Commercial
enquiries will be charged and the benefits will be shared as appropriate.
4 There will
be legal challenges on IPR and copyright either from individuals or groups or
organisations.
CONABIO
http://www.conabio.gob.mx/
Weinand, P.,
Booy, A., and Fry, R., 2000. A guide to copy right for Museums and Galleries.
Routledge, London and New York.
OVERHEAD 1
Title: Beset with pitfalls-specimens and databases,
intellectual
property and copyright
Introduction
Background
ENHSIN
The Kew role
in ENHSIN
What are the
issues?
Intellectual
property law
The Kew ENHSIN
survey
How would
ENHSIN work?
Conclusions
OVERHEAD 2
The European
Natural History Specimen Information Network (ENHSIN).
The Royal
Botanic Gardens, Kew is a partner in the ENHSIN project and its task is to
identify the key barriers in legal issues and intellectual property to the
practical implementation of a virtual natural history specimen information
infrastructure.
OVERHEAD 3
Exchange of
information from collections
Reducing
direct financial support from governments
Intellectual
property rights (IPR)
The Convention
on Biological Diversity, particularly those issues on access and benefit
sharing
OVERHEAD 4
(Such laws
include patent law, trade marks and the law of copyright)
One of the
most important features of intellectual property rights is that they may differ
depending on the country in which you find yourself
The Berne
convention and the Universal Copyright convention have to some extent remedied
such differences on copyright
IPR exist
totally separate from the rights to the physical property in the work itself
Databases may
have copyright protection and database protection
Publication
right
Weinand, P., Booy, A., and Fry, R., 2000. A guide to copy
right for Museums and Galleries. Routledge, London and New York.
OVERHEAD 5
1 No Museum or
garden yet has a firm policy on IPR either for specimens or for databases
2 All Museums
and gardens believe that they are the owners of the specimens in their
collections. This appears to be an assumption based on accessioning. National
laws may support this and past practice may endorse it.
3 Some have
published on their own website, specimen data and images. Only one has a
copyright statement and that is found not on each piece of data or on each
image but at the first page of the website.
4 For some,
there is limited access to some of the data.
5 All Museums
and gardens are considering charging but to whom and when is not clear. Certainly
value added charges for information is seriously being considered and if
government funding reaches a level where a service can only be provided at a
charge. There are implications in the UK related to the Freedom of Information
Act but this is currently unclear.
6 While
charging is being considered, no significant consideration has been applied to
policing any abuses.
OVERHEAD 6
1 The trend is
already set for free access.
2 There will
be some restriction for sensitive information.
3 Commercial
enquiries will be charged and the benefits will be shared as appropriate.
4 There will be legal challenges on IPR and copyright either from individuals or groups or organisations.