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White Paper — Open Science in a Digital Republic

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Scientific and Technical Information Department - CNRS

The future: open digital science

The key concepts of Open Science

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1The new right to Open Science is one of a body of existing concepts and legitimate interests that must be preserved or indeed strengthened.

A right to Openness: An unstoppable international movement towards openness and data sharing

2Open data, open format, open source, open access and open process are some of the areas in which a common philosophy is advocating the sharing and free reuse of knowledge.

Open Data

3The movement to open up access to data, otherwise known as “Open Data”, first emerged in 1957–58 in the United States with the creation of the World Data Center System. The movement acquired legal status in 1966 with the passing of the Freedom of Information Act.1 Then, in 2007, an amendment to this act by the Open Government Act made the concepts of the transparency, governance and opening up of public data central to the work of the American government.

4This movement was echoed in Europe, particularly in the public sector. In the United Kingdom, a project similar to the one conducted in the United States was officially launched in January 2010.2 In France, the release of public sector data has attracted considerable attention within the civil service since 2009. The Etalab Mission was created in 2011 under the authority of the Prime Minister. Its brief is to oversee the application of the policy in favour of openness and sharing of public data.

5In this framework, Etalab administers the single interdepartmental web portal at data.gouv.fr, which is intended to collect and make freely available all public information concerning the state, its public institutions and, if they wish, the various local authorities and entities under public or private law responsible for a public service mission.

6Many towns are also developing open data platforms making public information available to their citizens, in particular in the areas of culture, citizenship, transport, town planning, the environment, public finances, the administration, services and parking.

Open format

7The concept of an “open standard” or “open format” is defined by Article 4 of Act No. 2004-575 of 21 June 2004 as “[a]ny communication, network or exchange protocol and any interoperable data format whose technical specifications are public and with no restriction of access or of implementation”.

8The Act No. 2015-1779 relative to the freedom and conditions of the reuse of public sector information as well as the Digital Republic Bill reaffirm the need to make data available in an “open and easily reusable standard”.

Open source

9Open licences enable data, databases, digital creations and software to be made available to third parties under licences granting varying degrees of freedom.

10The most widely used licences, especially as regards open data, are the following:

  • the Etalab licence;

  • the Open Database licence (ODbL);

  • Creative Commons licences;

  • the Public Domain Dedication and Licence (PDDL).

11In the field of software, the most widely used licences used are the CEA CNRS INRIA Logiciel Libre (CeCILL) licence, the GNU-GPL licence, the MIT licence, etc.

Open access and open process

12Definition. “The Open Access movement is a position taken by the international scientific community, requiring the results of scientific research be made available openly and freely.”3

13Open process implies the right to the free observation of data by the use of digital processing, analysis or exploration tools, such as text and data mining (TDM).

14International commitment. This position in favour of open access first saw the light of day nearly 15 years ago:

15Today, this movement is building momentum and can particularly be seen in:

  • publications:

  • in conferences or symposia:

    • CNRS symposium on “The dynamics of scientific publishing, the information industry, and documentation: An agenda for 2015 for open publicly funded science”, held on 4 and 5 November 2014;

    • CERN/CNRS (DIST) workshop on multi-core platforms for science;

    • Symposium on “Innovation and governance of STI in the ESR”, 18 and 19 March 2014;

    • GFII (French professional think tank for B-to-B information): Open Access group on 15 October 2014;

    • Congress of the Association of Directors of University Librarie) on 2 and 4 September 2014: “The law is under challenge by developments in STI and the needs of science”;

    • The Paris Book Fair, “Facts & Knowledge” area, 21 March 2015, talk on “Towards Open Science: What are the impacts on scientific publishing?”;

  • by the creation of archiving platforms, including:

    • HAL: an open archive that recorded 9 million unique visitors in 2014;

    • HAL-SHS: the social sciences version of HAL;

    • ArXiv;

  • by the creation of open access archiving platforms, including:

    • OpenEdition.org and Revues.org;

    • Persée;

  • by self-help practices:

The French Research Code: The basis of digital STI legislation

16The Research Code lays down an institutional framework for the organisations that participate in scientific research in France, but does not define the principles or values of the scientific community.

17Article L.112-1 of the Research Code defines the goals of public research, among which are:

  • sharing and disseminating scientific knowledge, with priority for open access formats”;

  • and “organising Open Access to scientific data”.

Article L112-1
Modified by Law No.2013-660 of 22 July 2013 – Art. 16

The goals of public research are:
a) The development and advancement of research in all fields of knowledge;
b) The exploitation of the results of research for the benefit of society, based on innovation and technology transfer;
c) The sharing and dissemination of scientific knowledge with priority for open access formats;
c bis) The development of an expertise and support capability for associations and foundations, recognised as being for public benefit, and for public policies addressing societal issues, and social, economic and sustainability needs;
d) Training for research and by research;
e) The organisation of open access to scientific data.

18In affirming as objectives of public research “the sharing and dissemination of knowledge by giving priority to open access formats” and “organising Open Access to scientific data”, it provides a basis for the legal protection for Open Science in the digital age.

A need for consistency with rights governing public data

  • 6 Article 10 of Act No. 78-753 of 17 July 1978 on the freedom of access to administrative documents a (...)

19General principles. The Order No. 2005-650 of 6 June 2005 sets up as a general principle the right of the public to reuse the data held by public legal or physical entities for any purpose whatsoever, and especially for commercial and private purposes.6

  • 7 Commission d’Accès aux Documents Administrative (CADA), Act No. 78-753 of 17 July 1978 on the freed (...)

20The public entities subject to this act are listed in Article 1 of the CADA Act of 1978:7 the state, local authorities, the other entities under public law and entities under private law responsible for a public service mission.

21Article 11 of the CADA Act provides that “the conditions under which information can be reused are laid down, where appropriate, by the authorities referred to in A and B of this article when they are contained in documents produced or received by:

  • teaching and research establishments and institutions;

  • cultural institutions, agencies or services.”

22This exception meant that:

  • there should be no obstacle to the policy for making research data available, because it favoured the principle of communication and reuse, but under the conditions determined by the institutions themselves;

  • the data could be made available under conditions that suited the pace of work of researchers, the practices of each community and the nature of the data;

  • reuse was not necessarily a right that could be claimed by any third party, without the nature of the data being taken into account (data from restricted regime areas, ongoing research, data related to know-how or industrial copyright, etc.). As a result, the absence of an automatic right of reuse places limits on the right to communication of data media.

23Evolution and the Valter Act. This exclusion of the principle of free reuse of public information produced by establishments and institutions of education and research was quite simply deleted from the CADA Act by Act No. 2015-1779 of 28 December 2015 on the free access to and the terms of reuse of public sector information (known as the Valter Act).

24The wording of the Act leaves no room for the principle of making public data available or for reasonable protection of the interests of researchers and intangible public assets.

25The legal principle adopted also seems to disregard the discussions on the draft Digital Republic Bill and the needs of the scientific communities concerning the regulated circulation of published material and data as expressed in the framework of the public consultation.

The provisions of Act No. 2015-1779 do not allow establishments and institutions of education and research any discretion as regards making publicly available any data they produce.
These provisions are not consistent with the needs of researchers and the practices of scientific communities, and do not take into account the nature of the data (data from current research, know-how, restricted regime areas, etc.).

An indispensable legal principle: Literary and artistic copyright

26Origin. Historically, the legal recognition of the right of copyright proposed by Beaumarchais was proclaimed by the Constituent Assembly on 13 January 1791 (law ratified on 19 January 1791 by Louis XVI). This was the first law enacted in the world to protect authors and their rights: it gave authors the exclusive right of authorising the reproduction of their works throughout their lives, and also granted the right to their heirs for a period of five years. At the end of this period, the work fell into the public domain.

27This right of copyright was a reaction to:

  • printer-bookseller-publishers who automatically acquired full property rights to the texts they purchased from their authors, often at a ridiculously low price, and went on to exploit them without further consideration of those same authors;

  • performers who kept the rewards that should rightfully have gone to the authors.

28Copyright has thus historically protected the author of a work and not its legal owner.

29Copyright and the protection of scientific texts: scientific literature, one of the components of STI (in the form of articles, books, etc.), is eligible for protection by copyright under Article L. 112-2 of the Intellectual Property Code (CPI), which provides a non-exhaustive list of the works considered intellectual creations and includes:

  • 1° books, pamphlets and other literary, artistic and scientific works.

30However, knowledge, know-how and purely technical or descriptive written works do not fall within the scope of copyright. They belong to the public domain, are freely reusable by the public without prior authorisation and therefore cannot be the subject of exclusive protection; only the original form in which they were expressed and published may be subject to copyright.

  • 8 Court of Cassation (French Supreme Court of Appeal), Civil Chamber 1, 17/10/2000, RG No. 97-20820: (...)

31Only a work that formalises an idea or item of knowledge can be protected by copyright.8 In this respect, Article L. 111-2 of the CPI lays down that:

  • [t]he work is deemed to have been created, whether or not it has been made public, by its very production, even in unfinished form, by the imagination of the author.”

32Only original creations are eligible for protection by copyright.

+ Scientific texts and publications are subject to protection by copyright if they are original in their form of expression. However, the knowledge and scientific information contained in these texts are by principle freely accessible.

33The researcher: Rights-holder. Under the terms of Article L. 111.1 of the CPI, it is the author, understood as a physical person who created the item in question, who owns the intellectual property rights to the work. The same article specifies that neither the employment contract nor the contract to supply the work can set aside this principle.

34The rule is invariable regardless of the public or private status of the contracting authority. However, the rights of copyright of public sector employees can be adjusted in the interest of public service. While recognising that authors who are public sector employees should have copyright on their work, the Act modifies this in the interest of the public service provided by the body employing the researchers:

  • on the one hand, by restricting the scope of the moral rights of their employees:

    • the right to disclosure is limited;

    • researchers who are public sector employees may not object to the modification of their work when this is decided in the interest of the public service;

    • researchers who are public sector employees may not exercise their right to retract unless so authorised by their management;

  • on the other hand, by granting them certain prerogatives.

35This situation, resulting from the Act, also in some cases provides remuneration for researchers who are public sector employees.

36However, certain categories of public sector employees are not subject to this specific regime. “Employees who are the authors of works whose disclosure is not subject, by virtue of their status or the rules which govern their positions, to any prior permission from their management” are subject to the general principle of ownership. Faculty, researchers and, more generally, as expressed during the parliamentary debates, “employees who by virtue of their positions have wide intellectual autonomy, or independence of judgement, even in the context of hierarchical prerogatives” are subject to the general regime applicable to any author and enjoy full rights of copyright.

+ Researchers hold the copyright of their articles and scientific texts.

Exceptions to be protected: The public interest and legal secrets

37The availability of research data and results must be limited by considerations of public interest, such as:

  • national security, public safety or the safety of persons;

  • secrets protected by law.

38This limit was already stipulated in the Act No. 78-753 of 17 July 1978 on various measures to improve relations between the administration and the public and various provisions of an administrative, social and fiscal nature (known as the CADA Act). Article 6 provides for a list of restrictions to the principle of communication of administrative documents when such consultation or communication would prejudice:

  • the confidentiality of the proceedings of the Government and of the responsible authorities attached to the executive;

  • the confidentiality of national defence;

  • France’s foreign policy dealings;

  • national security, public safety or the safety of persons;

  • the currency and public credit;

  • the conduct of proceedings before the courts or of activities preliminary to such proceedings, subject to authorisation by the competent authority;

  • inquiries by the competent services into fiscal and customs offences;

  • or, with the exception of Article L.124-4 of the Environment Code, secrets protected by legislation ... .”

+ Open Science must preserve secrets, as well as public safety.

The protection of privacy and personal data

39The free provision of data and results as an aspect of Open Science must not compromise the protection of privacy and personal data, under the same terms as the limits imposed by the French Data Protection Act.

Exploitation: A legitimate interest to be preserved

40The availability of scientific data must also be limited by the possibility of exploiting results.

41Legal framework. Article L.112-1 of the Research Code defines the goals of public research, among which are:

  • (b) The exploitation of the results of research in the service of society, which is based on innovation and technology transfer.” 

42Chapter III of the Research Code lays down the terms and conditions for the exploitation of the results of research by research institutions and organisations (Articles L.533-1 to L.533-3). The Research Code thus encourages “public sector employees and public institutions entrusted with a research mission, authors of patentable inventions (in the framework of research funded by grants from the state and local authorities or from national funding agencies) to declare their inventions so that their employer may exploit the patented invention”.

43Goal. The exploitation of research aims to increase the value of the results of research and development.

44The French National Council for the Evaluation of Higher Education (CNE) defines exploitation as the means for “making the results, knowledge and skills generated by research usable or marketable”.9

45Consequently, the exploitation of research involves:

46Act No. 99-587 of 12 July 1999 on innovation and research promotes the transfer of technologies from public research to the economic sector and the creation of innovative enterprises. The following are the major routes for exploitation:

  • bringing the world of research into contact with the socioeconomic world;

  • the provision of equipment;

  • providing expertise or consulting services;

  • the protection of results and the transfer of intellectual property rights to a partner via licensing or transfer contracts;

  • the creation of enterprises as well as the mobility of researchers towards firms.

47Means. There are three types of exploitation:

  • patents;

  • confidentiality;

  • secrecy.

  • 11 Art L.611-10.1.CPI.

48Patents. To be patentable, inventions must be new, involve an inventive step and be applicable in industry.11 To be patentable, the invention must also constitute a novelty with regard to the state of the art. An invention is not new if it already exists in its entirety in the technical state of the art, either because there is a prior example, or because the inventor has already made his or her invention public before filing a patent application.

49If the invention has been made public in any part of the world, whether by a publication, a public exhibition (at a trade fair for example) or even a simple oral disclosure, it is no longer new (except in the event of wrongful disclosure).

50Confidentiality. Research contracts or public–private partnerships in the field of research provide for the confidentiality of research results produced under the contract. This “negotiated” confidentiality is often limited in time, and the conditions of publication for the results of research are contractually framed.

51Any effort to make scientific data and results available must take into account the confidentiality obligations governing the scientific results of any research activity that is at least 50% publicly funded. There are two possible types of legal regime:

  • one under which confidentiality clauses on the results of research that is at least 50% publicly funded cannot apply, as a result of the public nature of the provisions;

  • one with the possibility of waiving the principle of open access and the reuse of results of research that is at least 50% publicly funded, where confidentiality clauses are contractually imposed, with a time limit.

52Secrecy. There are two types of secrecy:

  • legal secrets that constitute a limitation on the principle of Open Science as developed above in “Exceptions to be protected: The public interest and legal secrets”;

  • contractual secrets, in other words confidentiality as described above.

53The protection of the intangible assets of public research fits within the framework of this goal of exploitation. Open Science must also fit within this framework and be compatible with this goal of exploitation.

+ The Research Code already contains among its principles:
- the foundations of digital rights to underpin Open Science;
- the necessary balance between Open Science and exploitation.

Notes

1 http://www.foia.gov/

2 http://data.gov.uk/project

3 http://corist-shs.cnrs.fr/gold_open_access

4 http://openaccess.inist.fr/?Initiative-de-Budapest-pour-l

5 http://www.budapestopenaccessinitiative.org/

6 Article 10 of Act No. 78-753 of 17 July 1978 on the freedom of access to administrative documents and the reuse of public information as amended by Order No. 2005-650 of 6 June 2005.

7 Commission d’Accès aux Documents Administrative (CADA), Act No. 78-753 of 17 July 1978 on the freedom of access to administrative documents and the reuse of public information.

8 Court of Cassation (French Supreme Court of Appeal), Civil Chamber 1, 17/10/2000, RG No. 97-20820: “The protection of an idea as an intellectual creation supposes that the work springs, even if in unfinished form, from the imagination of the author.”

9 http://www.senat.fr/rap/r05-341/r05-3411.html

10 https://www.univ-lille3.fr/recherche/valorisation/valorisation/

11 Art L.611-10.1.CPI.

Table des illustrations

Légende Article L112-1 Modified by Law No.2013-660 of 22 July 2013 – Art. 16 The goals of public research are: a) The development and advancement of research in all fields of knowledge; b) The exploitation of the results of research for the benefit of society, based on innovation and technology transfer; c) The sharing and dissemination of scientific knowledge with priority for open access formats; c bis) The development of an expertise and support capability for associations and foundations, recognised as being for public benefit, and for public policies addressing societal issues, and social, economic and sustainability needs; d) Training for research and by research; e) The organisation of open access to scientific data.
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