Research Data FAQs

If you have an FAQ you would like answered, please use our FAQ form and we will respond as soon as possible.

About licensing

Q. Do I have the right to apply a licence to my data?

Q. Can I apply a licence to my data even if copyright does not exist?

Q. Why do I even need to provide a licence when I publish data? 

Q. I want to make my data for anyone to use for any purpose they like. Can I do this by:

  • not applying a licence?
  • applying a CC0 licence?
  • applying some sort of public domain mark?

Q.  We don’t think that AusGOAL and its Creative Commons licences are appropriate for our data. Should we create our own licence?

Q. Can I apply multiple licences to different groups of data in my collection?

 

About Creative Commons

Q. My research was funded by industry. If I add 'non-commercial' to the CC licence I choose, will that stop my funder's competitors from profiting from my work?

Q.  Which licence should I use (and why!)

Q. What do the words ‘ported/unported’ mean in relation to CC Licences?

Q.  When would I use a CC By NonDerivs licence in relation to research data?  What are the implications for re-use of that data?

Q. What protections, for example limits of liability or disclaimers, do Creative Commons Licences provide for data owners?

 

About other licence types

Q.  I want to license my source code - what are the implications for using GPL over the BSD licence? Which is more appropriate, when?

 

About copyright

Q. When is data protected by copyright?  Is all data subject to copyright?

Q. What does it mean if data is copyright?

Q. How do I copyright the data that I own and what are the advantages and disadvantages of doing so?

 

About ownership and owners’ rights

Q. Who owns the copyright in my data if:

  1. I am employed by an Australian university as academic staff?
  2. I am employed by an Australian university as general staff?
  3. I am a visiting fellow at an Australian university?
  4. I am a student at an Australian university?
  5. I hold a joint appointment with a university, e.g. clinical staff in hospitals?
  6. I have an emeritus position with a university?

Q. What if multiple parties are involved in the creation of the data - who has the right to distribute/license the data?

Q. My research involved the use of third party data. How does that affect the copyright and licensing of my data?

Q. My research was based on pre-existing IP. How does that affect the licensing situation of my data?

   

About licensing

Q. Do I have the right to apply a licence to my data?

A.  You have the right to apply a copyright licence to your data if you are its copyright owner. If your data is a compilation or derivative of others’ materials, your ability to license the data might be impeded by the rights under which you are using or incorporating the other material.  That is why it is important, if possible, to use or negotiate to use others’ materials under the broadest possible terms.  AusGOAL recommends its least restrictive licence –  the Creative Commons Attribution Licence.

Top

Q. Can I apply a licence to my data even if copyright does not exist?

A.  Recent developments in Australia have led to the situation where it is unclear which data is subject to copyright.  In this situation, Australian researchers have to take a pragmatic approach and it would seem desirable to assume copyright as subsisting in all data created in the course of research, and ensure that it is licensed accordingly. No harm can come from this approach.

Top

Q. Why do I even need to provide a licence when I publish data?  (Most people I speak to are unaware that data and web pages are copyright, and that printing them can in some cases infringe copyright!)

A.  You may have noticed the phrase:  All Rights Reserved.  This means that the copyright holder has not given you permission to exercise the rights that the copyright law exclusively affords to them.  These include the exclusive rights of reproduction, communication and publication of their material for a specified period.  Using All Rights Reserved is equivalent to not having a licence.  A licence, on the other hand, tells people exactly what they can do with the material, which creates clarity around re-use.  A licence is a legal instrument that enables the copyright holder to provide permissions to others to exercise these rights, where, in the absence of a licence, the party would likely infringe the owner’s copyright.  In other words, without a licence, the law, and indeed the world at large, presumes all of the copyright holder’s rights are reserved.   In addition, licences can be a convenient vehicle to deal with other matters such as limitation of liability, disclaimers of warranty, dispute resolution processes and governing law provisions.  Some of these clauses, if adequately drafted, may serve to protect the copyright holder in case a third party comes to some harm as a result of their use of the material.

Top

Q. I want to make my data for anyone to use for any purpose they like. Can I do this by:

(a) not applying a licence?

A. Not applying a licence is not recommended.  By not applying a licence you will likely achieve the opposite effect, and make the data unusable, since absence of a licence implies all rights reserved. Or worse, your material may be used unlawfully and not attributed to you. 

(b) applying a CC0 licence?

A.  The CC0 is a document in which the user purports to abandon all claim to copyright and related rights.  It is not strictly a licence.  Whilst you could apply a CC0 Waiver, there are some doubts about its force under Australian law, particularly with respect to moral rights. Furthermore, the disclaimer that accompanies CC0, at present, may be ineffective in protecting the user from liability for claims of negligence.

(c) applying some sort of public domain mark?

You could apply the public domain mark - but only if the material is already in the public domain.  i.e. copyright does not subsist, or has expired.

Top

Q.  We don’t think that AusGOAL and its Creative Commons licences are appropriate for our data. Should we create our own licence?

A.  You could, but you shouldn’t.  Licence proliferation is an anathema to open access and collaborative research. They increase transaction costs and decrease certainty of compatibility with more popular licensing frameworks.   If you harbour concerns about the Creative Commons Licences, please contact AusGOAL to discuss your concerns.  The benefits of Creative Commons Licences over ‘bespoke’ open licences include, but are not limited to:

  1. Cost of creation of the bespoke licence compared with the freely available Creative Commons Licence.  Does your project or institution have the funds to direct toward the creation of an open licence, when quality open licences, such as the Creative Commons Licences, currently exist?  Would the decision to spend those funds be defensible?
  2. Certainty that it is compatible with copyright laws internationally.  Will you engage legal advisors with experience in multi-jurisdictional contract and copyright laws?  Would your licence be created with the benefit of input from an active international affiliate and stakeholder community?
  3. The cost of maintenance of the licences as copyright and related laws, such as consumer protection laws change.  Does your project or institution have the funds to maintain the licence in the longer term?
  4. The Australian Creative Commons Licences have been translated into many different languages?   Would you translate your licence into many different languages?
  5. The Creative Commons Licences are machine-readable.  Would your bespoke open licence be machine-readable?
  6. The Creative Commons Licences are understood by the community and have been afforded considerable credibility in the past 10 years.  CC Licences are used in Flickr, Wikipedia etc, and CC licensed content can be searched for through the ‘advanced search’ functionality of Google and other search engines.  Would the same benefits come from your bespoke licence?
  7. Not all open content licences are the same, and accordingly, some are not compatible with other (similar, and in some cases, restrictive) licences.  Would your licence be compatible with other open licences?  If not, then people will need to seek alternative, possibly more open permissions from you in order to reuse your material in their work.  That would be time-consuming and counterproductive, and would defeat the purpose and simplicity of using an open licence, such as the Creative Commons licences.

Top

Q. Can I apply multiple licences to different groups of data in my collection?

A. Yes, provided that you have the rights to do so, and in particular, that you have not "exclusively" licensed the data previously.

Top

About Creative Commons

Q. My research was funded by industry. If I add 'non-commercial' to the CC licence I choose, will that stop my funder's competitors from profiting from my work?

A. Quite possibly yes, if your funder’s competitors seek to substantially reproduce the non-commercially licensed material.  In addition, if your funder does not own copyright in your research, it may even prevent your funder from profiting from your work.

Top

Q.  Which licence should I use (and why!)

  • Will it hold water -- if not a university won't allow it.
  • Longevity
  • Dual licensing (Open Source + Commercial)

A. AusGOAL is deliberately biased toward application of the least restrictive licence, because less restrictive licensing means more benefits to the community.  The AusGOAL website includes material describing each of the limitations and advantages of the licences. It also provides  a licence chooser tool to help people make licensing decisions that accord with the AusGOAL policy of choosing the least restrictive licence appropriate to the circumstances.

All of the AusGOAL licences ‘hold water’. The licence code for each of the Creative Commons Licences is a legal instrument.  The Creative Commons Licences have been upheld in every jurisdiction in which litigation concerning them has occurred.  There have been no recorded cases of litigation concerning a Creative Commons Licence in Australia, which would tend to support the quality of their construction.  Whether or not a university agrees with the use of the Creative Commons Licence is a matter for the university.  However, we would like to work with any universities who express concerns about the AusGOAL suite of licences.  

The Creative Commons Licences are administered and backed by the Creative Commons Foundation, which has just passed ten years of operation.  Application of a particular CC Licence will cause the material to be effectively licensed under that licence until copyright in the material expires.  However, while CC Licences are irrevocable, they are non-exclusive, so it is open to the rights holder to apply another licence to the material should the need arise.

Dual licensing - the Creative Commons Licences are non-exclusive.  You can apply a different licence to the material at any time.  For example, if you release material under a CC- Non-Commercial  Licence, but a commercial partner wishes to exploit the material, you can enter into a separate licence with the commercial partner that permits commercial reuse.

Top

Q. What do the words ‘ported/unported’ mean in relation to CC Licences?

A.  Porting is the process of converting the generic version of the Creative Commons Licences to a country-specific version. For example, the creation of the Creative Commons Version 3 Australia Licences took place after successful completion of a porting process between Creative Commons Headquarters and the Australian Creative Commons affiliate.

Top

Q.  When would I use a CC By NonDerivs licence in relation to research data?  What are the implications for re-use of that data?

A.  You wouldn’t use the Creative Commons Non-Derivative licence for data, unless you only wanted people to read it, or compile it into an anthology.

Top

Q. What protections, for example limits of liability or disclaimers, do Creative Commons Licences provide for data owners?

A.  Creative Commons Licences provide strong protections which you will see set out in Clauses 5 and 6 of the CC licence legal code.

Top

About other licence types

Q.  I want to licence my source code - what are the implications for using GPL  over BSD  licence? Which is more appropriate, when?

A.  These licences are used predominantly for open-source software.  The GNU GPL (GNU General Public Licence) contains similar terms to the Share-Alike Creative Commons Licences.  When derivative code is developed from GPL licensed code, then the derivative code will generally need to be licensed under the GPL.  On the other hand, the BSD (Berkeley Software Development) Licence is akin to the Creative Commons Attribution Licence.  Code licensed under the BSD Licence can inserted into any other code (provided the licence terms are met), including incorporation into software licensed under the GPL.  The reverse, however, is not possible.  Please see here for further information and links to other resources on software licensing.

Top

About copyright

Q.  When is data protected by copyright?  Is all data subject to copyright?

A. In Australia, data will be subject to copyright protection provided that it meets some threshold requirements. If a dataset does meet the test for copyright protection, copyright is said to ‘subsist’ in the dataset, and it does so automatically.  Copyright protection will arise where the work of an author, in reducing that compilation to material form (including digital form), involves some intellectual activity that is directed, not at collecting or inputting the data, but in expressing the work. Accordingly, copyright may, or may not subsist in a dataset.  

However, the Full Federal Court has provided some guidance on the topic in its recent judgment in Telstra v Telephone Directories.  It seems clear that copyright will not subsist in data generated, compiled and expressed entirely by machines, but from that point the line begins to blur. For example, if a scientist manipulates machine-generated data by re-compiling, adding or subtracting, annotating, correcting or reformatting the dataset, that effort may give rise to copyright protection in the dataset, because such manipulation may satisfy threshold tests of originality, authorship and creativity.

As it is difficult to determine whether copyright subsists in a dataset, it is recommended that you apply a copyright licence.  The licence should state that the data is subject to the terms of the licence to the extent that the data or dataset is protected by copyright.  The Creative Commons Attribution Licence, and indeed all of the Creative Commons licences, contain this wording.

Top

Q. What does it mean if data is copyright?

A. If the data is copyrighted, or copyrights subsist in the data, then the owner of the copyright is afforded certain exclusive rights under the Copyright Act 1968 (Cwlth), for a certain period, and subject to certain other fair uses that the copyright law permits .  For example, the rights of reproduction, communication and publication of the material become the exclusive rights of the copyright owner as soon as the material is created.

A copyright holder may deal with the copyright in their material through licences.  Licences enable the copyright holder to permit others to make certain uses of their material, where those uses might otherwise cause them to infringe copyright.  In addition, licences can direct the manner in which the material may be used. For example, a licence may not permit commercial reuse.

Top

Q. How do I copyright the data that I own and what are the advantages and disadvantages of doing so?

A. In Australia, you don’t need to do anything to copyright a work.  Copyright arises automatically upon creation of the material, provided that it meets the threshold requirements for subsistence of copyright.  Some threshold elements or requirements are originality and creative human endeavour in its authorship.

Top

About ownership and owners’ rights

Q. Who owns the copyright in my data if: 

  1. I am employed by an Australian university as academic staff?
  2. I am employed by an Australian university as general staff?
  3. I am a visiting fellow at an Australian university?
  4. I am a student at an Australian university?
  5. I hold a joint appointment with a university, e.g. clinical staff in hospitals?
  6. I have an emeritus position with a university?

A.  There is a general rule that, in a situation where data has been produced by an employee acting in the ordinary course of their employment duties, copyright will belong to that person’s employer.  However, universities vary this approach by recognising the rights of researchers to their research outputs.  There is no uniformity, however, in the way that universities approach this.

All Australian universities have Intellectual Property Policies which include statements about the ownership of publications and other research outputs.  Some universities also have Research Data Management Policies which may also include information about data ownership.  Policies vary considerably from one university to another, so you will need to check what rules apply to you. There are some generalisations which can be made from these policies:

  • general staff do not own their copyright
  • students, both postgraduate and undergraduate, usually do (the exceptions relate to occasional instances where the university may wish to commercialise a product)
  • Most universities, but not all, have a category of works called “scholarly publications” which belong to or are licensed back to researchers.  This category may or may not include data and/or computer programs.
  • In the case of joint appointments, the researcher is advised to check the policies of both/all of their employers.  In some cases, individual employment contracts may provide for conditions which differ from the institution’s IP policy, so it may be worthwhile to check your own contract.
  • If local policies don’t provide you with the information, you should check whether the funders of your research have made any stipulations about ownership.   You may also need to consult your copyright office or research legal services.

Top

Q. What if multiple parties are involved in the creation of the data - who has the right to distribute/license the data?

A. If copyright subsists in the data, then all parties generally have the same rights, in the absence of an agreement to the contrary.  This will also depend upon the policies of your employer(s).  Joint ownership of copyright can be problematic.  It is preferable for the parties to settle copyright ownership on one of the parties. If copyright does not subsist in the data, distribution and licensing of outputs can, and indeed should, be incorporated into an agreement.  Moreover, these matters should all be settled in a formal agreement before a research project begins, preferably in a manner that permits broad reuse of the data to be created.

Top

Q. My research involved the use of third party data. How does that affect the copyright and licensing of my data?

A. Your use of third party data will be governed by its licence and terms. The terms that you consented to in using this data will affect how it can be reused by you and indeed by others.  These terms of agreement will also affect whether or not you can make data available to anyone else at the end of your project. Open licensing offers the simplest and broadest reuse of material by all parties to ensure the broadest possible reuse.

Top

Q. My research was based on pre-existing IP. How does that affect the licensing situation of my data?

A. The research agreement you entered into when obtaining the data originally should include clauses describing the treatment of pre-existing IP, often referred to as background IP.  If it does not, seek agreement with the holder of the background IP as soon as possible.  In so doing, you should pursue the broadest permissions possible, to ensure its broadest possible research reuse.

Top