Examining the Feasibility of Adopting the Protocol for Implementing Open Access Data for Database Products of the United Nations

In the course of the work of the United Nations (UN), it engages in partnerships with private or non-private entities leading to the production of databases. The production of these databases or other intellectual property works requires funding, and the use of this database is often necessary in order to pursue the project for which the database was created, whether by the UN in continued partnership with the third party entity, or by itself. The UN therefore needs to enter into agreements to secure licenses for the non-commercial use of the database. These licenses are necessary in order that the UN can continue to use this data without having to pay for it, but this process is also complex, time-consuming, and a drain on UN resources which could otherwise be used in areas UN legal resources may be more needed. An idea that could be considered by the UN is to place the data under the Protocol for Implementing Open Access Data created by Science Commons which seeks to enhance the sharing of information in databases.

Placing the data under the Protocol can serve not only to free up UN legal resources from negotiations of license agreements but can also enhance the distribution of data produced by the UN. The Protocol was adopted precisely in order to make the sharing of data easier for researchers, who often have to labor under different standards for database protection. These differences impede research, and worse, enable data providers to dictate the research that can be done using the data. Science Commons argues that imposing that kind of control threatens the very foundations of science, which is grounded in freedom of inquiry and freedom to publish.

The Protocol calls for a waiver on the relevant rights on data and an assertion that the database provider makes no claim on the data. Citation or attribution will not be based on legal requirements but on the norms of the scientific discipline. It calls for the waiver of all intellectual property rights, including copyrights and sui generis rights. There should be an affirmative declaration that contractual constraints do not apply to the database. Lastly, it calls for the provision of interoperability with databases and data not available under the Protocol, through metadata. Thus, the Protocol goes beyond merely placing the database in the public domain. It attempts to create a system where there is legal predictability, certainty, ease of use and comprehension, and the imposition of the lowest possible transaction costs on users. This therefore allows the UN to maintain use over the data it has produced, and to disseminate it as widely as possible.

The Protocol is also compatible with other conditions usually imposed by the UN. For example, the UN Conditions of Use, that the data may only be used if the user agrees that the UN shall not be liable for any loss, damage, liability or expense incurred or suffered that is claimed to have resulted from the use of the UN Data, on any fault, error, omission, interruption or delay with respect thereto, is not inconsistent with the Protocol. Thinh Nguyen, Legal Counsel of Science Commons, says that disclaimers of warranties and limitations of liability do not conflict with the Protocol. “We feel that this represents just an attempt to allocate risk, not reduce research freedom, and we encourage data providers to consider making those disclaimers whenever possible. This may encourage more data providers to make data openly available, if they can reduce the risk of liability to themselves. Further, the desire of the UN to avoid the differing legal obligations in the jurisdictions where it operates is solved by the simplicity of the Protocol, which calls for scholarly conventions in attribution rather than legal standards.

However, certain aspects of the Protocol would be difficult for the UN to accept. The UN currently provides database information to the public through its UN Statistics Division under the UN Data website, and if we treat the Conditions of Use imposed by the UN Data as an indication of its philosophy of data sharing, then the UN will have problems complying fully with the Protocol. It is useful to treat the these restrictions in the Conditions of Use as restrictions that the UN will seek in sharing data because these same restrictions are found in the UN Conditions of Contract which are templates of contracts used by the UN in its agreements with third parties.

UN Data provides that all data and metadata on the UN Data website are available free of charge and may be copied freely, duplicated and further distributed provided that the data is not put up for sale or otherwise commercially exploited and that UN Data is cited as the reference. This goes against the Protocol's call for a waiver of all intellectual property rights to the database, and for citations to the database to be a matter left to scientific discipline rather than contractual requirement. The UN would be unwilling to concede this because it needs to maintain its relevance in as many aspects as possible, both in order to maintain its primary status as an important body in world politics and to justify the assessment of financial contributions on member states. Having data that it has aggregated attributed as the basis for economic studies and scientific discoveries is an important means of achieving this goal.

The adoption of the UN of the Protocol in the data it releases that is produced whether by itself or in collaboration with third parties will greatly simplify the means by which the UN manages its database. It is therefore necessary for the UN to resolve the issues that do not comply with the Protocol, so that it can take advantage of the mechanisms of the Protocol.

I think once again that this is an effective rewrite. You are about 25% overlength here, and you need to make the effort to cut.

References

• Simon Chesterman, Law and Practice of the United Nations: Documentary and Commentary, Oxford University Press (2008).

• Thinh Nguyen, Freedom to Research: Keeping Scientific Data Open, Accessible, and Interoperable.

• Thinh Nguyen, February 15, 2010, Email to author, on file with author.