A conversation with Anna Picco-Schwendener and Suzanna Marazza (part 1)
A conversation with Anna Picco-Schwendener and Suzanna Marazza (part 2)
Anna Picco-Schwendener is a Postdoctoral Researcher while Suzanna Marazza is a Legal consultant. They both work at USI Università della Svizzera italiana, Switzerland.
They joined Jo on this podcast to talk about Data and Copyrights protection.
ORCID iD: 0000-0002-1196-2702
Suzanna Marazza is a collaborator at Università della Svizzera italiana (USI)’s eLearning Lab (http://www.elearninglab.org) and as a legal consultant, she works on several projects dealing with digital law – ranging from copyright to data protection, especially within academia.
Both Anna and Suzanna work for the project CCdigitallaw (https://ccdigitallaw.ch/index.php/english) which is a competence center in digital law for Swiss Higher Education Institutions, doing workshops and responding to requests in Italian, German, French and English related to copyright, licensing and data protection.
They have also been able to develop the DMLawTool (https://dmlawtool.ccdigitallaw.ch), a software that aims at helping researchers in dealing with possible legal issues they might encounter during research data collection and management. (Source: Guests’ LinkedIn Profiles)
Asking for consent and other requirements and processes for personal data protection
Which license to apply to datasets? CC-BY or CC-0 ?
https://www.gida-global.org/care CARE Principles
Know your legal rights as the copyright holder of your work (manuscript and datasets)
Negotiables and non-negotiables in a publisher agreement
What legal aspects are important for the editor and why are they non-negotiable?
Lugano legal lab
Jo: Oh. For those of you who join us for the first time, or haven’t listened to the previous episode preceding this one, we’re here with Anna and Susanna, who work at the Competence Center for Digital Law in Switzerland, and have developed the DML tool. And in the previous episode, which I highly recommend for you to listen to, we talked about data protection, protection of personal data in your personal settings, as well as in a research context. And now we continue our conversation to look into copyright, what it is, what it means, what are national, international specifics. So, yeah. Welcome again, Susan and Anna.
Suzanna: Thank you. Jo.
Jo: Yeah, let’s dive right in with you.
Suzanna: So, first of all, certain generic details. First of all, what does copyright protect? It protects literal and artistic works. When three conditions are fulfilled, it has to be an intellectual creation. It means only what is created by a person can be protected by copyright. So, for example, machine content nowadays is not protected by copyright. We don’t recognize copyright protection to what is created by a machine if there is no active behavior behind the machine made by a person. A second condition is that the work must be perceptible by sensors. It means, if we can read a text, watch a movie, see an image, listen to music, that can be protected by copyright. Whereas an idea or the concept itself behind the text, for example, is not protected by copyright. Only the form of expression that the person gives to a certain idea is protected by copyright, not the idea itself. The third condition that must be fulfilled is originality, also sometimes called individuality, the character of individuality. And that’s the tricky condition, because it has to be evaluated again on a case by case basis. Because every time you are wondering if you are dealing with work protected by copyright, you need to wonder, is this work, is this form of expression original enough to be protected by copyright? Because if it’s not original enough, if, for example, a video is not original enough, I just film while I walk, without paying attention of lights or of a specific position or whatever, there is no originality, there is no personal contribution given by the author, then this video is not protected by copyright. And that means that anyone is allowed to use the video. I cannot claim copyright protection for this video. These three conditions are required internationally by all copyright laws of the world. There is an international act, which is called the Burn Convention, which is signed by almost all countries of the world. And the goal of this convention is to give it a harmonization of all copyright rules of different countries. Because in the digital world, there is no border anymore. We share content with so many countries. So many countries are involved in sharing contents. So it was needed to have one only international act that would apply to almost all cases. So the Burn Convention forces that these three conditions must be fulfilled for a work to be protected by copyright, then there are certain specific differences that can be set by national laws. For example, here in Switzerland, our Swiss law as well as German law, I know they grant copyright protection to photos lacking originality. So a photo made by a person is protected by copyright even if it is not original. That’s often the case of photos historically important for press photos that are done by many photographers from different media, from different press houses. And they have historical value because they are capturing an important moment, even if they are not original, because the photographer is not capturing a particular position or a particular light or photographers, maybe they are doing the same kind of photo. So there is a copper protection also in that case, that is an example to show that there may be different rules that apply in certain cases based on the country involved in a case. So when the author creates a word protected by copyright, first of all, the author is also the right holder. It means the right holder is the person or also an entity entitled to decide? How can this work be used by third parties, by anyone in the world? And only the right holder is entitled to decide. It is possible that the author transferred the rights to the right holder. This is the case very often when an author creates a work for the employee doing the job functions based on the contract, based on the employment contract, the author transfers all the copyrights to the employer or to the institution, not the person, but to the entity. In that case, the employer or the institution can be the university, can be a foundation, can be any kind of institution and authority is the right holder. And that means that this entity, the right holder is entitled to decide who can do what with the work. And if someone is willing to use the work, the person is required to ask permission from the right holder to be able to use the work for any purpose. Without permission, the person is not allowed to use the work. There are certain exceptions set by the law. Again, the Burn Convention foresees certain principles or wishes that are also in Europe. There are European directives which require countries to develop national laws that specifically explicitly set certain rules. So we have exceptions allowing anyone to use a word without needing to ask permission. But again, that can be different from country to country. So for example, all countries of the world have an exception to permission to use a work for private use, without needing to ask for permission. If I use, if I download a content from my personal use, I don’t need to ask permission every time I’m using the work for my private use. But then again, there is also an exception used a lot worldwide is the right to quotation but it’s not very wide, it’s not an unlimited right to quotation. I’m allowed to use someone else’s work to include in my work. For example, my thesis. In my research publication I’m allowed to include a part of someone else’s work in order to demonstrate. To better explain. To as a reference of what I’m explaining. Of what I’m trying to create but there are certain limits and these limits, this right to quotation can be different from country to country. Again, the principle is worldwide, the principle is the same all over the world and this Burn convention forces the same principle but then the details, the limits may be slightly different from country to country.
Jo: Sorry, I just wanted to clarify, to put an example from my experience, like when we want to cite a quote from a book, what might differ from country to country is the actual number of words.
Anna: Yes, exactly. Or when it’s for example,
Jo: Just a piece of the image or the whole image and would you then put a watermark, some sort
Anna: Exactly. That’s a very, very big controversy that is going on right now because like for example, we all have this right to quotation but then to what extent in Switzerland it is accepted by the doctrine and also by the federal court that a full image can be used as a quotation. But if we think of why there is the problem? The problem is again, as talked about privacy here the same there are several interests that are into play and that can sometimes be in conflict, one with the other. So on one side, copyright is part of the intellectual property rights which are included in the right to property, guaranteed by all our constitutions and also international Human Rights Acts. So the right of property gives a monopoly, gives a right of exclusivity to the right holder about the work, only the right holder is entitled to decide who can use the work. So for example, if for example, Getty Images, Keystone, they are right holders of the images they have and they sell these images. So if I use a full image, if I publish a full image, even if it is inside my publication, I’m still going against the interest of who is selling this full image. So it’s finding a solution, finding a fair balance between the right to property of the right holder and my order, the researcher’s interest in using the image, for example, or using any content. So it’s freedom of expression, freedom of research, also the right to inform and the right to be informed. There are many interests, many rights on one side that are in conflict with the right of property. So in Switzerland, as I said, the doctrine and the federal courts in certain cases not always, but again, depending on the circumstances of the concrete case, it is possible that a full image can be used as a full image can be used as quotation because it wouldn’t maybe in certain cases it wouldn’t make sense to only use a part of an image. How can I use only part of an image? That’s not the same in other countries. I know in Italy, in Germany, they absolutely don’t accept a full image to be quoted to be published as a quotation because this right of property, of the right holder prevails over freedom of expression and freedom of research, et cetera. So for a text it’s much easier because it’s easier to only extract only an excerpt of the text. So only the part of the text which is needed to quote to demonstrate what I’m talking about, I’m allowed to use this on this part of the text and there still is an interest in buying the full text if we think of an image that’s difficult. So this fair balance nowadays goes more into the side of guaranteeing the right to property instead of guaranteeing freedom of expression, unfortunately.
Jo: And then there’s also like now that we are in a podcast, there’s also the right to music, where again, from country to country what length of a musical can be used as an intro?
Anna: Again, it’s this fair balance between on one side music is part of freedom of expression. In Switzerland, our constitution, we have two different articles one is freedom of expression, a right to freedom of expression and another one specifically about freedom of arts. In other countries, freedom of arts goes into freedom of expression. So again, it is not possible to create new knowledge, new art, something new, without being inspired by previous works. It’s impossible. We are always inspired. Everything we create is based on a previous work. So it’s a very big problem if someone pretends to be very short, not even a very short part of your music can be included into a new work. So it’s a very big controversy. It’s very difficult to respect all interests or rights.
I don’t want to say that law is on the other side. It’s always asking permission to use the work from the right holder is a solution.
Jo: Think about it. It’s for people to be in touch, like one created, one put extra effort and tires and sold into a piece of creative creation.
Anna: Exactly. So even if the law says you’re not allowed to use the word without permission, it doesn’t mean that you are absolutely not allowed get in touch, ask for permission to the right holder and then hopefully the right holder or the collecting societies because there are every country has collecting societies who represent the interests of the authors and right holders. So then hopefully the right holder or the collecting society are willing to give or grant permission.
Jo: If you allow, I would like to draw the copyright discussion into something that’s crucial in the publishing process for researchers, like when it comes to the transfer of the copyrights as we publish. Which has become I think that originated as a necessity in the print era. Which we’ve I would say left in not all research disciplines and countries where research is conducted. But publishing is very much digital these days and then there’s claims that there is no need for copyright transfer anymore and still telling you because it’s convenient for the publishers and they can then decide how the data is being used and they can actually decide it back to us what happens on a daily basis which you might find morally questionable at least. But then also not so demonized publishers. All of them. And generally there’s also reasons even in the digital era for copyright considerations on the publisher side. So could you help us out here? So what are the conflicts? And why do we transfer copyright or do we even have to? And what are the publishers’ interests?
Anna: If we think of the development of publishing in the last years, we traditionally think of a publishing contract as the agreement between the author and the publisher, where the publisher is committed to editing and doing a lot of work in order to then sell oh, how cute. In order to then sell, for example, the book. There is really a lot of effort, a lot of work by the publisher until the end product that is then released, published and sold. Traditionally, this publishing agreement, publishing contract, it’s written about how many copies must be printed, where these copies must be sold, etc. Nowadays, in this digitized world, the publisher I don’t want to minimize the job of the publishers, but often it’s about granting a platform where the work can be published. But there is not this big effort anymore as it used to be. So that’s why it’s not anymore needed to transfer all the copyrights because the publisher is not part of all these creative, all this process of creating the work that at the end will be sold. So in such cases it is really possible for the author to retain copyrights and grant the rights to publish and to distribute and share the work through a license. So it’s not about transferring rights through account, transferring contract, it’s not about assigning copyrights, but it’s about licensing rights, granting the right to publish the work and the author remains the right holder, the publisher has the right to publish and then it depends on the circumstances. It still depends on the effort. Maybe if the publisher, apart from publishing the work, maybe there is also a certain amount of effort in advertising or really an effort in publishing and sharing the work. Maybe the publisher can claim an exclusive license for a certain period of time on the other side, if it’s only about really mere publishing the work on the platform and nothing else, of course there is no need to transfer the right, only even a non-exclusive license is enough. So dealing or agreeing on what? Copyright?
On one side there is the author, and on the other side there is the publisher and it’s about agreeing what are the rules, what is the role of the publisher, what is required from him to and based on that there are certain levels of copyrights that can be assigned or granted, et cetera. There are different possibilities of granting the rights. It’s not only about assigning or not assigning copyrights. So the researcher who is willing to publish must be aware of what are their rights, what are the possibilities? There is one possibility on one side is assigning copyrights to the publisher. That means the researcher, the author are no longer entitled to decide what to do with the work, or where to publish the work, only the publisher is entitled to decide about that. On the opposite side, there is a mere nonexclusive license which grants the publisher the right to publish. But then the author remains the right order and is allowed to publish the work also in other places and the author, the researcher, is still entitled to decide what to do with the work. The publisher has no right to decide about the work, has only the right to publish the work, and that’s it, nothing else. And within these two extremes, these two opposite possibilities, there is a wide range of possibilities and it’s really up to the parties. It’s called contractual autonomy. Parties are free to decide what to agree. So the researcher. Of course. The publisher needs to accept that both parties need to sign and accept agreement. But both parties are free to decide what to agree and there are really almost unlimited possibilities. Not only the two opposite.
Jo: But that’s what most researchers are not even aware of. That whatever they are being presented as a contract by the publisher to be considered for publication. Because there’s such high pressure to publish and then in certain journals. Many of which are powerful yes. But you’re saying and that’s also why many publishers are actually negotiable. So it’s definitely in the hands of the researchers to revise the contract and to add the contract to their needs and preferences and then go back.
Anna: But then if it is important also to understand that if the researcher wants to negotiate certain parts of the contract, then also the publisher on the other side needs to accept the changes. So it’s not enough to for example, the researcher receives the standard contract and is already ready to be signed, and the researcher by hand makes certain changes, signs and sends the changed contract back to the publisher and pretends that the publisher accepts these changes. No, it’s not always the case. It’s better to write a formal letter to the publisher asking for specific changes and receive the signature from the publisher that the publisher accepts these changes. It’s really about a mutual agreement, any change has to be mutually agreed.
Suzanna: Two things to add obviously this also depends on the ability of the publishers to actually want to negotiate. Now if they don’t want there is not much space for the researchers there, but at least we can give a try first of all and maybe a second issue might be beyond maybe not being aware that we can negotiate is also knowing how to negotiate and then really the time investment to also deal with this aspect. So if you think about how we publish now, it’s always a rush towards the end and then we have to finalize and we submit at the very end and usually these contracts are signed after first submission, but still then we have to do changes again. And so the focus is actually on the content and dealing also is the way of how something is then going to be published and this needs, I think from the side of the research quite a lot of effort and sometimes it’s just like OK, I’m interested in publishing now, I need a publication and at a certain point it just say okay, whatever. No, this whole way of publishing might need to change.
Jo: Also to find a space in the digital era and bring some of the regulations and policies that are still in place to modern standards. In essence, it’s really a trading agreement between the researcher and the publisher and what terms they agreed to trade under, where everybody has a stake and also the power to negotiate. And then it’s on both parties to either come to agreement or not. Simple as that.
Suzanna: Yeah, exactly. So researchers must be conscious of what are their rights but also able to negotiate with publishers, taking their time to do that, et cetera. And then Fair Principles are about suggesting OK, there is a goal of open access, there is a goal of open science releasing research content under an open license worldwide. But concretely, what does that mean? So Fair principles help concretely to share, to release data that are concretely open. Not only for example, if I release my work under an open license, but it is technically not possible to open it with free software, then it is legally open content, but it’s completely not open because it can only be opened with the same software which is under payment, etc. All so it’s not an open context. On one level there are copyright rules and then next step okay, now that I know I’m aware of copyright rules, how do I concrete apply these principles for my work to be open? Then the Fair principles. It has to be accessible also technically. Not only through a license. But also technically also for example. If we think we never think of language. But if I want to release my content openly but I release it in a language which is understandable only by a very small part of the world. Then it’s not really I mean someone is allowed to translate it because I permit any modification of the work but it’s not open content because it’s only understandable by those who know the language. All these concrete points of view must be considered in open science to say not only legal issues.
Jo: And then when it comes to fair, it’s also not only about human languages but also machine readability exactly to make it searchable by the indexing databases that we all now find that data that’s been published. I would like to now take the publishers or put on the publishers shoes what are negotiables and non negotiables from a publisher perspective? What do they need in legal holding of our research, manuscript and data to actually still be able to process for publishing?
Suzanna: You should ask a publisher well, again, basically, first of all the publisher needs to have access to receive the work in order to be able to publish it, the main requirement but then it depends on the circumstances, unfortunately. Sorry, it depends on the agreement, it depends on what is the role of the publisher. In that specific case.
Jo: Like you said before. It was the publishers duty to format and they still do the layout to some extent but the formating has been pushed by the publishers towards the researchers and now researchers found themselves not only having to do the research. But also preparing the manuscripts, yes. Writing the text. But also formatting the text so that the publisher has as little work as possible with it but we’re still paying for whatever amounts in article processing charges and you might ask what justifies certain amounts that we pay and expect to pay. But there’s another discussion that’s price pricing and that’s another discussion to have not so much legally.
Anna: Exactly it depends on the role. The effort of the publisher in certain cases. Of course. If the publisher is the one entitled to format. To edit. To do the layout. It’s one thing if on the other side. The publisher only gives the possibility to publish the work on a platform so it guarantees a certain visibility. But nothing else. No editing then the law doesn’t set a specific amount of rights that must be transferred to the publisher. It’s really free for the parties to negotiate, to agree, depending on the circumstances, depending on one side recognizing what is the role of the publisher but nothing must be granted to the publisher apart from of course sending the work itself so that the publisher can either edit it and publish it or only publish it.
Jo: Researchers could also design their own contracts and say here’s our work, here’s our tax, here’s our data, we already license it with CC by attribution only and we now hand over to you we might also pay fee for you to publish this on our behalf online in your journal and keep all the copyright and all the legal data aspects to the researcher’s.
Suzanna: Yes. So in that case the publisher only publishes the work, nothing else. In that case it’s a license. Of course, if the publisher agrees. But it would be enough to only enter into an agreement as a license to publish the work and that’s it for your researchers to remain right holders. The publisher only has a right to publish the work, then it either can be an exclusive license or non exclusive. It means the publisher is the only one who has the right to publish. Right holders are not allowed to publish the work elsewhere or if it’s a non exclusive license, then you are also allowed to publish the work anywhere else that’s possible to agree with the publisher. The publisher of course must accept.
Jo: Yeah, this one is probably also good to refer to the Chef or Romeo database, which specifies most publishers in the western ecosystem are listed here. Also non western journals to some extent. And we also put that link into the show notes and blog post where you can search by publisher what their legal requirements are, how they handle copyrights, at what stage the processing of your manuscript, meaning the handle and manuscripts, the author’s version, the promised version, the peer reviewed version, the layout version, version of records and then the published version. So each step is the publisher where the publisher basically holds the not ownership but holds the manuscript in their hands and processes them, where they add value to the manuscript. And therefore then is it that then they actually get copyright to the work because they’re processing it with our agreement?
Anna: It depends on the agreement the publisher has with the author. It’s not something automatically there is no rule such as if your effort is more than a certain percent of the work, then automatically you become the right holder. No, it depends on a case by case basis and maybe if the publisher has a certain amount of work in creating the entire work, it is possible that the publisher is joint author, co author with the writers. So it depends on the case. Our Swiss law there is one article that says it can be the case. When the publisher decides about, for example, about the topic of the work, about the book, the publisher invites or asks specific writers to give their contribution into the work. Each contributor writes, for example, one chapter and then the publisher again himself, he gives the structure to the book, decides what chapter goes one after the other and the publisher decides what are the topics that must be written about. So in that case, the writers don’t have a lot of room to decide about the work, to say they only write the text, but they follow the instructions given by the publisher. In such a case, of course the publisher is the right holder. But it can be certain cases again, depending on the work behind it, it can be a joint author with writers. If the writers only really execute the instructions of the publisher. It’s possible that the publisher is a right holder and writers are not even authors. So it depends really on this. There is a wide range of possibilities depending on how much each one had a role in creating the work. But this is an extreme case where the publisher is the one who directs the whole work, decides what must be written, how to structure the book, the chapters, who will be the writer, the publisher decides who are the contributors, etcetera. Etcetera. If it’s not that extreme case, in all other cases it depends on the role of the publisher and authors are allowed to negotiate because the publisher is only about really a mere publishing of the work, then no need to transfer copyrights.
Suzanna: Yeah, you need to consider that law must apply to all cases. So it’s law must be abstract and general in order to be able to apply to all cases. Sometimes it seems like law is very far away from a concrete case or from certain circumstances, from a certain specific context. So nowadays we use more and more agreements which are more quickly to create, because law requires a lot of time to be changed, a lot of time to be in line with the development. Of the society. Whereas these conventions or agreements or these principles, they are closer to a concrete case, to a specific context. So we try to create this either we can call them like agreements or principles or conventions. They can have several names. But the goal of the aim of these acts. Of these, how to say principles. Is to find a solution that is understandable. That is accepted worldwide. Or that is accepted from a whole society and that is applied by a whole society where the law has difficulties in being in line with that specific context.
Jo: Basically trying to put a general concept which covers any potential case without being specific. But the policies and agreements are law specifics to regulate what’s not more. Yes, excellent.
Suzanna: There is on one side copyright law, which is imperative, which there is no space to negotiate. Like we cannot negotiate what is protected by copyright or not. We cannot negotiate who is a right holder or not. But there is room to negotiate in the agreement between the right holder and any user. And the law really gives freedom to the parties to negotiate, gives them contractual autonomy because the law says okay, myself, as a law, I set certain rules, general abstract rules and then it’s up to you to agree in your private interests. So within these freedom agreements, of course, it is always like publishers are powerful, they have more power than researchers, than one only single user. So in creating such principles, conventions or agreements, we try to help, we try to give more power to one only user, which is not one only user. One only user is part of one whole community who is willing to use a work. So these principles are created to give more power to one whole community that is entering into an agreement with a publisher who is an entity and who is powerful. Okay, so it’s several levels and as you said, these principles try to find a solution, try to set certain rules where the law is just too high, too abstract, too general to be. I wouldn’t say that it’s not useful, but it cannot cover all specific aspects.
Jo: Yeah, and then also, like we said in the previous episode, OK, it leaves a lot of room for interpretation on the execution level, basically. But it puts the framework, which is how we agreed as a society to like, under these rules we want to operate, but then it becomes specific, we still have room for negotiating and identifying what are the benefits.
Suzanna: The law wants to give this room to negotiate. So based on the concrete circumstances of the case but then we need these principles to help.
Jo: Yeah, and it’s funny that things like the Fair principles only emerged within 2016. They were postulated to regulate research data, discoverability and reliability, which also again is very much legally binding and where many legal aspects come into play, I mean, we kind of were away and operated in a certain way, maybe more on a national level, but now where everything is being kind of internationalized, globalized…
Suzanna: And there are no borders anymore. And we need these international licenses, for example, Creative Commons licenses, which are worldwide, or Fair principles, care principles, they are accepted by this whole community that goes beyond one only nation.
Jo: For you listeners, you don’t hear much of that, but sometimes I apologize, we have a whining, impatient doggy here.
Suzanna: Who’s also participating
Jo: Having a say. The GM logic. Let’s go. How can we now simplify what almost took hours to pass through the reasoning behind why we have data protection and copyright? What are the use cases and research? What are the use cases outside the research environment? What’s the reasoning behind? And how can we now make it simple for the researchers to adopt? And this is where you thankfully develop the tool for?
Anna: Yes, exactly. So you have seen there is actually quite a lot of complexity to deal with. So that’s the reason why we actually developed this DM law tool because it aims at guiding the researchers through the most relevant legal aspects related to research, data management, and then at the end proposes possible solution approaches both to copyright and data protection issues. So maybe a few words on how it has been created. It has been developed by the University of Dala Vistaliana in collaboration with the University of Nshotel within the P Five program of scientific information of Swiss universities. So this is the background. It has been, if I remember, a one year project. So how did we try to deal with this complexity? We actually tried to organize all information in the form of a decision tree, within which each node provides the necessary definition and explanations in order to actually decide which branch to take next. So to see now, I don’t know, you don’t see the DML two in front of you, but you can click on each node and it will open a window with all the definitions and explanations. You also see that we have divided their different colors. So we divided the topic. So all the fields that are related to copyright are in blue, while the ones related to data protection are in green. So now if you like the tree utilities, they also allow you to completely expand the tree. And you see that actually the part on data protection is much smaller than the one on copyright because copyright actually involves much more rules, more complexity to deal with. Again, what else to say? You can zoom in, you can zoom out the tool. There is a search box, so you can search any kind of keyword. And we also provided tags that allow you to guide through some topics and maybe a little bit more easy. I was talking about colors, sorry, I forgot to mention the yellow one. So all the end nodes, those nodes actually proposing the solution. Once you went through a whole path, they are highlighted in yellow and as I said, should propose some solutions. Yeah, I think this is the most important part. I think it’s a tool that you have to go in, you have to play a little bit with it, you have to explore it in order to see whether it’s useful to you and how it can apply. But it should really thanks to this decision tree, it really allows you to answer one question and then based on whether it’s yes or no, you go in one direction, you answer a next question and slowly you get to the final solution with some approaches and proposals on how you can base once you reach to the end of a specific branch. So I would say in a few words, this is what the DM Law tool is actually about. So here we are mainly talking about research data.
Jo: Thanks very much for that. And also, like we mentioned in the previous episode, and as might have also become clear from the conversation is that as much as we had a lot to talk about when it came to data protection, but the underlying regulations are quite simple, so to say. Also as a tree shows, whereas for copyrights there’s quite a high level of complexity in the tree structure as well. But I agree that there’s a coherent and concise amount of text. So there’s examples and use cases, explanations like a glossary, like where terms are being defined, what it means and how it applies to research. What a derivative work, for example, is a bit of a cryptic term or scientific term or legal term, rather and what’s the derivative when it comes to a research item.
Anna: Yeah, maybe one thing I didn’t mention when you actually open up one box now. So with the explanations, we try to structure this text always in the same way. So you start with, okay, you are here because you have made some choices before. No, then the next section is the next step. So you have different options to choose among. And then the third section is about definitions needed to make your choice, how to go next. And then to conclude we have an FAQ section and be aware of or pay attention to the section which is not always built in yet. So the user actually can get used to this structure. The text is always structured in the same way.
Jo: That’s really useful. And it also speaks to the complexity and the amount of work that went into designing this I can only imagine.
Anna: Yeah, this is another issue now. When I looked at it, I was like, okay, now it actually looks quite simple and straightforward. The decisions on which kind of branches to choose are very logical. But I can assure you there was a huge amount of work behind that and a lot of discussions on how to actually organize all the contents and how to aggregate. And that was a lot of work.
Jo: I can really only imagine it’s not my expertise plank here, but getting one more into it and it is super helpful to have the tree structure that’s expanding trees
Anna: …and maybe also the fact that it is the result of a collaboration between legal experts and nonlegal experts. So also this continuously trying to find a compromise in the language, it has to be accurate enough, but from our side it then has to be also comprehensible enough. So there was a continuous negotiation also from that point of view.
Jo: Yeah, and that’s really the essence also for science communication, if we make a transfer of concept here to being able to explain complex systems with simple terms and concepts, really so that everybody can benefit. And I would like to conclude on the two in our conversation with the Human Rights Declaration article 27 and there are two points to make, just reading it up for all of us. Number one, everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancements and its benefits. And then the second is everyone has the right to the protection of the moron’s material interests residing from any scientific, literary or artistic production of which he or she or them is the offer. Which basically summarizes nicely the whole conversation that we had today is also trying Human Rights Declaration.
Suzanna: Of course.
Jo: And then gives us the global applicability and ensures that as researchers. We live and act in a globalized world. We publish in a globalized world. People all around the world, not in every village necessarily, but in every country for sure, have access to the internet and therefore also have the right to participate and to consume the knowledge that we generate. But also we, as the generators of the knowledge, have a right to protect our knowledge and protect research subjects, people who participate in our research from disclosing their personal data from any potential misuse. So it has a global dimension.
Suzanna: Yeah, exactly. And if I can just add about our DM Law tool, it is about Swiss law, but the main principles are the same all over the world. All copyright acts have the same foresee, the same principles, as well as the Burn Convention. So I would say if you look at the exceptions that we have explained in the DM Law tool, these exceptions are really about Swiss law and are only applied in Switzerland, or when someone uses a work in Switzerland. Whereas explanations about privacy data protection and about licenses, agreements, Creative Commons licenses, these explanations can be applied all over the world because these agreements are about people that can also be in different countries. One thing, the other thing I would like to add is we didn’t talk about moral rights that are protected by copyright laws. We could have another podcast just about moral rights. So here we talk about agreements, because copyrights can be split into two groups, moral rights and economic rights. Moral rights are rights that rather protect the personality of the author. Economic rights are rights about how over can be exploited, can be used. So Creative Commons licenses, for example, but any kind of copyright license, any agreement between the author or the right holder and user, are only about economic rights of copyright. In English, when we talk about copyright, we often refer to this group of economic rights. So how our work can be used, because moral rights cannot be transferred. So it’s not possible to regulate, it’s not possible to negotiate moral rights. That’s why they are not included into a licensing agreement that’s just to end, but because of this Universal Declaration of Human Rights also mention moral rights. That’s why
Jo: Thank you very much. I would really love to dig into these aspects that you just hopefully I’ll be able to reconvene to dig deeper on the differentiation of both because I think it’s highly relevant to researchers and the research ecosystem as a whole because I get a feeling and I didn’t want to carry that level of responsibility as a graduate student. But I get a feeling we have to embrace responsibility when it comes to our research data and also to assume any potential user misuse of what we publish because also we are considered the elite of society if we like it or not. I mean to talk about kind of whatever elite means, but we have a level of education and engagement in learning and engaging in research in the unknown also. So can we not expect ourselves also and be expected by other society stakeholders to be aware of that responsibility, to consider any potential misuse? Of course we can only foresee so much as what we can actually anticipate. But shouldn’t that also be a clear like on the radar of any researcher in the research process to consider these potential outcomes? Like why are we doing this and what is the potential outcome of our activities?
Suzanna: So for a researcher, the first step, the most important thing is to be aware of what are the rights, meaning what are the economic rights. So how a researcher is allowed is able to negotiate with the publisher. So that’s about economic rights of copyright. If you want to go forward and go to a more conceptual level, more abstract, then we can also include moral rights.
Jo: Yes. In the interest of time, this pushes for another meeting. Thank you both so much. If you want including remarks, anything else to add? What’s the next step with the tool now? Is it considered complete now or how quickly do some of these aspects and legal requirements change over time so that you need to monitor and keep adapting?
Anna: I mean, there are certain aspects that still actually need to be completed and so when we have time, we sometimes go in at some examples, some sections that can be maybe a little bit more detailed out with regards to the content. Obviously, we always have to check whether the law is changing. So next year the new Data Protection Law will enter into force in Switzerland. So there might be some small aspects that have to be reconsidered, but we are checking this. We will try to keep it up to date as well as possible.
Jo: and it is quite coherent already. I really like it. As we also said. Just to encourage everyone here to click on the link in the show notes in the blog post. Just play with the tool. Familiarize yourself with legal considerations and licenses and use cases. And be aware that the tool is designed or built upon a Swiss legal framework which applies to a large extent also in other countries. But not necessarily in yours to 100%. So add the component of your national requirements to the equation and also the national requirements of the research. So the region where your research is taking place, it might also be something to consider. So if you have collaborators in other countries, then their legal system applies, or maybe also where the work has been published. So these are questions we haven’t really answered, or maybe we can also consider next time, but otherwise there was a lot of information. I’ve learned a lot. Thank you again and speak to you soon.
Anna: Thank you very much for inviting us and having us with you. And I think you’re doing a great job with people gettingthis kind of very useful information for everybody. Thank you.
Suzanna: Thank you, Jo, and keep in touch.
Jo: Thank you very much.