The Knowledge Exchange programme (KE) has commissioned a report on the status of intellectual property (IP) rights and research data in the four KE countries; the Netherlands, Denmark, the United Kingdom, and Germany. Specifically, what if any are the barriers to open access to primary research data - especially those resulting from public funding. Get the report here.
The report raises some interesting points. Basically, data are considered facts and facts cannot be protected. However, data always need to be put into a form before any action can be taken with them, and the form may enjoy some forms of protection.
Comparing the law in the four countries, It turns out that the three continental countries are more similar to each other than any of them to the UK. This is due to the low barrier to protection in the UK, where only 'skill, labour, and judgement' is needed to claim intellectual property rights, whereas the three continental countries all require some form of originality and individuality in order to have a claim to workhood. The latter is difficult to obtain for data gathering.
Secondly, the European database directive do extend some harmonisation to the four countries. The directive offers protection to databases to the extent that significant investments have been made to create them. However, only investments after the data gathering counts. With a crude example, an expensive telescope and a cheap database offer no protection to the database, whereas a cheap telescope and an expensive database does.
There may be practical monopolies to data though. IPs have to do with published data, but if data reside in a place that is not immediately available, then there is no way to force access to it.
The report makes a case for further harmonisation of European law. The differences between the laws of the member states in the EU make for some very complicated issues. For example, if a German researcher uses data that originated in Denmark, German law should be used to determine the legality of the use. Similarly, if data is available online, the relevant laws are the laws of all the countries where the data is available. In this sense research data can join cultural heritage as an area that cry out for harmonisation.