From the above finding, it can be concluded that an appropriate measure to address the legal impediment arising from intellectual property protection in research data is by making open access for research data in digital format as the default (RECODE, D.5.1 Open Access as Default), mandating data owner to facilitate access to publicly funded research data for public research or other public-interest purposes (OECD, para E Protection of Intellectual Property), with as few restrictions as possible in a timely and responsible manner (RCUK, Principle 1), on the internet through publicly accessible databases or repositories (NIH), in a format over which no entity has exclusive control (OGD Principles).

The appropriate measure to address ambiguity about ownership of research data is by requiring research institutions to have policies relating to the ownership of intellectual property generated as a result of public funding (NHMRC). The policy should clarify ownership of research data by vesting ownership of publicly funded research data in the employer of the researcher (NERC, 4(f) Intellectual Property Rights), or the research institutions receiving and administering the grants (ARC, para (c)). The policy should also clarify ownership of publicly funded research data IP generated as a result of collaborative research between research institutions (ARC, para (c)).

The legal impediment arising from data owner’s exclusive rights in research data was addressed by the NIH and the Research Council of Norway by requiring published data to be made freely available at the time of not later than initial publication (Research Council of Norway, 3.1 The Research Council’s guidelines). This position has to be contrasted from the position of the STFC (para xi) which provides that published data should be made available within six months of the date of the relevant publication. However, STFC also provides that where there are accepted norms within a scientific field or for a specific archive they should generally be followed. The legal impediment was also addressed by imposing an embargo for the researchers to publish their research findings as provided by ESRC, NERC, NIH, RCUK and the Research Council of Norway. The embargo period vary between 30 to 60 days (NIH, Intellectual Property Protection), to a maximum of two years from the end of data collection (NERC, 3(a) Restrictions to Access). By comparison, ESRC (Principle 5) imposed embargo no longer than 12 months calculating from the end of the grant, while the Norwegian Research Council (para 3.2) fixed the embargo at no later than three years after the project has concluded. In contrast, RCUK position is that the length of embargo period varies by research discipline (RCUK, Principle 5). Apart from embargo, NERC requires data owners to grant a non-exclusive license to allow the funder to manage and supply the data for reuse (NERC, 4(f) Intellectual Property Rights). Based on the above finding the legal impediment arising from data owner’s exclusive rights in research data could be addressed by imposing a minimum period of exclusive use for the researchers/data owners to exploit the research data.

Analysis found that most research funders require the research data to be accessible free of charge (UK Cabinet Office, Principle 3(19) & (20)), on the internet (Panton Principles), with as few restrictions as possible (RCUK, Principle 1), by anyone on equal terms (Research Council of Norway, para 2.1), for the widest range of purposes (OGD Principles, para 4 Accessible), including for reuse (Government of the Republic of Slovenia, 2.1.2 Open Access to Research Data, re-purposing (Panton Principles, 201), redistribution (Research Council of Norway, 5.0 The Research Council’s Guidelines) and commercial gain (NERC, 3(a) Restrictions to Access), as long as there are no legal, ethical or security-related reasons to preclude this (Research Council of Norway, para 2.1). Besides the research funders, the Panton Principles proposed an open data access policy which permits any data user to download, copy, analyze, re-process, pass them to software or use them for any other purpose without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The Panton Principles also discourage the use of licenses which limit commercial reuse or limit the production of derivative works by excluding use for particular purposes or by specific persons or organizations (Panton Principle, para 3). In addition, CRUK requires any restrictions to data access to be outlined in the data sharing (CRUK, (Intellectual Property Rights and Proprietary Data). In can be concluded that, the legal impediment arising from restrictive scope of legitimate use of research data could be appropriately addressed by allowing the right to use and reuse research data beyond fair dealing exceptions.

In terms of licensing, The Norwegian Research Council requires the license to be internationally recognized (Research Council of Norway, para 5.1 & 5.2), while the EU requires a licensor to grant worldwide, perpetual, royalty-free, irrevocable non-exclusive licensed to use research data (EU, para 2.2 Open Licences). Further the EU recommends Creative Commons (CC) licenses (version 4.0), especially CC0 Creative Commons Zero Waiver (CC0) Public Domain Dedication, as it avoids the need to develop and update custom-made licenses (EU, 2.2 Open Licences) and make a work license-free OGD Principles, para 8). Similar position can be observed in the Panton Principle (para 2–4). As for published research data, the Panton Principles require the research data to be explicitly placed in the public domain with a clear waiver or license (Panton Principles, para 1). Based on the above finding, the appropriate measure to address the legal impediment arising from complex and lengthy licensing procedures should be for the policy to adopt an open content licensing regime based on advance permission which removes the permission barrier, making it faster, simpler and more flexible.

Several research funders such as the NIH requires data users to recognise the proprietary interests of the originator of the research data by giving them appropriate credit for their work (NIH, para 3 & 12). Besides NIH, RCUK also requires data users to acknowledge the sources of their data as a way to recognize the intellectual contributions of researchers who generate, preserve and share key research datasets (RCUK, Principle 6). Further, Denton Declaration on Open Access to Research Data states that the principles of open access should not be in conflict with the intellectual property rights of researchers, whereby a culture of citation and acknowledgement should be cultivated by providing citation (Denton Declaration, para 12). NERC reportedly adopts the citation and DOI-specific metadata laid out in the DataCite metadata schema in ensuring that the researchers responsible for creating the research data receive appropriate recognition for their efforts (Callaghan & Walton, 2012). Based on the above finding, among the appropriate measure to address the legal impediment arising from an author’s moral right to integrity/attribution is by introducing data attribution/citation standards that provide a basis for incentives, recognition and rewards for data sharing activities (See Uhlir, 2012).

The OECD proposed the data custodians to consider using anonymization or confidentiality procedures that ensure a satisfactory level of confidentiality to preserve as much data utility as possible for researchers (OECD, D. Legal Conformity). The IES, requires its grant holder to develop a data management plan that protects the rights of study participants and confidentiality of the data as required by the laws and regulations (IES, Human Subjects and Privacy Issues). In contrast, the EU allows the researchers to opt out at any stage (either before or after signing the grant), which free themselves from the obligations of open access (EU, 4. Extended Pilot on Open Access to Research Data). Hence, the most appropriate measure to address the legal impediment arising from non-disclosure duty of confidential research data is through anonymization process, confidentiality procedures and development of a data management plan.

To address the privacy issue, the research data need to be free of identifiers that would permit linkages to individual research participants and variables that could lead to deductive disclosure of the identity of individual participants (Government of Canada, Policy Environment; IES, Human Subjects and Privacy Issues). This could be done by de-identifying/redacting process which strips all identifiers (Government of Canada, 2.7 Challenges for Policy Implementation). Besides that the ESRC has proposed for sensitive & confidential data or data which pose a disclosure risk after anonymization to be deposited in data provider’s secure access facilities (ESRC, Data Security). Where data cannot be free of identifiers or when identifiers are important for linking datasets, apart from qualifying/exempting the data from data sharing requirements (Government of Canada, 2.2 Policy Environment), the researchers should also consider restrictions on data sharing as provided by data archives or enclaves (IES, Human Subjects and Privacy Issues). RCUK requires data sharing agreement to be signed before data are released prohibiting use of the released data to identify participants or to make unapproved contact with participants (RCUK, Principle 4). On the other hand, the EU introduced ‘Smart Notices’ which is stored in a permanent online location, to indicate the original purpose of personal data collection and processing and serve as a reminder of the obligations with regard to EU rules and national law on personal data protection (EU, 2.4 Personal Data). Where data cannot be stripped of identifiers, the NIH requires the researchers to apply for Certificates of Confidentiality to protect identifiable research information from forced disclosure (NIH, para 2 Protecting Confidentiality and Personal Privacy). To conclude, there are various methods of data redaction and data release that can be adopted to address the legal impediment arising from the right to informational privacy of subjects of research data.

While the research funders recognized national security as one of the exceptions to open access, specific measure to address the legal impediment arising from protection of national security has not been included in the principles/policies/guidelines which have been analysed. In a report “Seeking Security: Pathogens, Open Access and Genome Databases”, the US National Research Council’s Committee on Genomics Database for Bioterrorism Threat Agents (2004) states that the classification system has traditionally been used to restrict access to information that poses a national security risk. Further, the US National Committee on Ensuring the Utility and Integrity of Research Data in a Digital Age (2009) has made a recommendation for the policy makers to draw the line between classified and unclassified data and to balance restrictions on access to sensitive data with the potential costs of such restrictions. Based on the above recommendations, the most appropriate measure to address the legal impediment arising from protection of national security is by drawing a clear line between classified and unclassified research data.

Most research funders addressed the legal impediment arising from novelty requirements in patent law by allowing data release to be delayed until patent applications have been filed (CRUK, Intellectual Property Rights and Proprietary Data). In contrast, the government of Canada permits delay data sharing until the institutions or researchers are applying for patents or developing new applications based on that data (Government of Canada, 2.2 Policy Environment). The NIH requires the provisions of the Bayh-Dole Act of 1980 (equivalent to Intellectual Property Commercialization Policy for Research & Development Projects Funded by the Government of Malaysia 2009) to be applied, if the outcomes of the research result in inventions (NIH. Intellectual Property Protection). Based on the above finding, the appropriate measure to address the legal impediment arising from novelty requirements in patent law should be for the policy to fix a timeframe for the patent application to be filed to avoid prolonged and unnecessary delay/restriction of data release.

The EU Guidelines states that the licensor provides the information ‘as is’ and assumes no responsibility for its correctness or completeness (EU, 2.3.5 Disclaimer of Liability). The US Committee on Ensuring the Utility and Integrity of Research Data in Digital Age (2009) proposed for a standard of care to be developed as part of the strategy to ensure data quality. Among the standards of care recommended to be imposed on data providers is the responsibility to properly inform, advise and warn data users on the potential risks related to use/reuse of the data (Levesque et al, 2005). There is also a recommendation for data providers to supply the information pertaining to the content and the limitation or defect or potential risk in the data utilisation (Awang et al, 2009). Based on the above recommendations, the appropriate measures to address the legal impediment arising from lack of legal duty to ensure data quality is by developing a standard of care on the data providers to ensure data quality.