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Re: data ownership Herbert B. Chermside 13 Apr 2004 08:10 EST

To determine this, you will have to look to your institution's data
ownership policy.  If there is no policy defining data ownership for that
individual in that situation, the individual's estate owns the data and files.

There are numerous matters to consider.

Copyright law (federal law, deriving from the U. S. Constitution) gives the
"expression" of the information, once "fixed in a physical medium" (written
on paper, put on a computer data storage medium that is not ephemeral) to
the creator.  The creator may contract that away.  It is a practice in some
industries, that an employee signs an agreement that certain defined works
(which can be as wide as everything they do) belong to the employer.  Both
some contract language and some court decisions have limited this to work
done for the employer, or work in the field of employment, or other
limitations.  A published university policy (usually under the name of
governing board) applicable to all employees, or all of a certain class
(e.g., faculty), may have the effect of an individually signed contract.  A
state institution may be subject to state laws, which have to be read and
interpreted carefully.

A university data ownership policy, if there is one, may claim ownership of
the "data (sources)", i.e., the physical materials on which the information
is stored.  It might, though very unusual for a university, claim the "data
(broadly)", i.e., both the physical materials and the information in
them.  The claim of ownership might be based on the purposes for which the
data is gathered.  For example, it might apply to work done for sponsored
programs, or work done in which the institution's name is involved.  If the
institution has a "misconduct in scholarly work" policy, it might claim
ownership in the data sources, in order that it can take steps to
sequester, preserve and examine the materials in relation to resolving
questions of misconduct.  It might claim ownership in data sources that
create intellectual property belonging to the institution, in order to
protect it's IP interests (e.g., data sources that document a patent
claim).  It might claim ownership in data sources in order to be able to
fulfill its responsibilities to external funding sources (e.g., to prepare
and submit a report the individual can no longer produce).  It might claim
ownership in cases where the data sources contain information directly
involving others whose interests can be adversely affected by its
unavailability, e.g., a collaborator, graduate student, or thesis
advisee.  In this last case, there may be questions to be answered
regarding who gathered the data, even if recorded in someone else's files
(a strong reason for requiring each individual to record her own data and
then share it as needed).

A further thing to consider is differentiating between the "original source
documents" and the information contained in them.  It is very difficult to
claim the information, per se, for other than IP reasons.

Also you need to differentiate between primary data gathered by the
individual and secondary data gathered from other sources.  Generally under
copyright law the copyright interest in the secondary data applies only to
the selection of data from the primary sources.  And you need to consider
the difference between the data and the interpretations/conclusions drawn
from it, which under copyright law does belong to the writer.

If there is an institutional policy, there is still the consideration of
what the institution will do with it.

It is my personal opinion that, given a policy, the institution should
claim only those interests required to protect institutional interests,
either corporately or for others in the institutional community.  That
institutional interest may be protected by an agreement with those to whom
it transfers custody of the records, providing for access to those who need
the information, or reversion of various rights if the new custodian abuses
the trust of the agreement.

In the case you have described, it is my opinion that the institution may
have a duty to, say, a thesis advisee, to insure access to information, if
there is a policy under which it can exercise rights.  It may also have a
duty to require access in cases of misconduct.

But the work was the product of the deceased faculty member, and all rights
not provided for in a policy, revert to the estate.


At 04:18 PM 4/12/2004, you wrote:

>Hello all:
>     A faculty member of ours recently died.    Who owns their
> data,  files, research that was worked  on.    The faculty member did not
> have funding from the government or foundations  - but did research on
> historical data .     Does this material become the property of the
> University or does it become a part of their estate?     What happens
> to  a thesis of a graduate student the person may be been counseling?
>I thank you in advance for your comments.
>   Eleanor Cicinsky
>Instructions on how to use the RESADM-L Mailing List, including
>subscription information and a web-searchable archive, are available via
>our web site at (click on "Listserv Lists")

Herbert B. Chermside, CRA
Virginia Commonwealth University
PO BOX 980568
Richmond, VA  23298-0568
Voice:  804-827-6036
Fax     804-828-2051

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