Guidelines for the opening of research data from a legal perspective

One of the main challenges of the research activity is related to the dissemination of the results obtained. For a few years now, special emphasis has been placed on promoting universal access to knowledge "by positioning in favor of policies of open access to scientific information", using the expression included in Law 14/2011, of June 1, of Science, Technology and Innovation. In this regard, the legislator incorporated into its articles a novelty of undoubtedly great relevance related to the open access to contents that were to be disseminated in research publications, particularly when the activity had been financed from the state public budgets.

However, there is no similar issue at the normative level related to data generated on the framework of said research activities. Consequently, the option for open data -in the sense that they are registered in non-proprietary formats that can be read by machines- is just a possibility, without the general regulations on reuse being clearly applicable. In this regard, there are several legal obstacles that may hinder the opening of data:

• The reluctance and difficulties derived from intellectual property rights
• The commitment of confidentiality that may exist in some cases
• The possible loss of competitive advantages before the eventual commercial / industrial exploitation of the results, or, without exhaustive intention,
• The protection of personal data.

Beyond the strictly normative dimension, the Spanish strategy of science and technology and innovation 2013-2020 initially made a timid commitment to contemplate "open access to data and microdata" as one of the six mechanisms of articulation for its development and execution. Subsequently, the State Plan for scientific and technical research and innovation 2017-2020 went a step further and considers the possibility that the funded R & D & I projects include, on a voluntary basis, a research data management plan that will be deposited in institutional repositories; generically alluded to, in any case, "all situations in which they have to be protected for reasons of confidentiality, security, protection, etc. will be respected. Also when they are necessary for the commercial exploitation of the obtained results ".

For its part, the European Union has progressively promoted the opening of data in the projects financed under the H2020. In this regard, the obligation to present a management plan has been extended in 2017. In addition, in the 2018-2020 Work Program, the reasons for exempting participants from the general obligation to open data have been specified. In this sense, more precise and practical information has been included in the official instructions given to the applicants and beneficiaries of the projects, thus facilitating compliance with this obligation and, above all, respect for the different legal rights that could be in conflict.

Even if such measures are limited to formalized projects and financed by a specific program, it is undoubtedly a model whose possible projection in Spain should be addressed with some urgency. In short, it is about evaluating our baggage and, above all, identifying the pending challenges, updating in this way previous contributions, undoubtedly already overflowed by the novel approaches that are being promoted by the European Union. Certainly suggestive initiatives have already been launched from the point of view of academic reflection, but it seems that action-time has come and, in particular, the moment to incorporate an authentic obligation in future calls for the financing of projects of investigation. And, why not, to consider even a normative reform, although in this case it would be convenient to wait for the European Union to take this step, in order to avoid undesirable state fragmentation in the regulatory framework.

Content prepared by Julián Valero, professor at the University of Murcia and Coordinator of the Research Group "Innovation, Law and Technology" (iDerTec).

Contents and points of view expressed in this publication are the exclusive responsibility of its author.