Research, publications, and patenting have several ‘ethical’ and ‘legal’ issues that may arise, whether one publishes openly or patents and stores the data away. The questions that we may pose is whether we can truly own a product of the mind and its personal creations. Can we expect the law to ethically protect those ideas or should we focus on sharing knowledge? How can we avoid being unethical in relation to research? To answer these questions, we will guide you through the legal issues that may arise through unethical use of research. This article aims to identify the situations where ethics can interfere in research, as well as outline some tips in order to avoid legal implications.
Types of Data
There are various types of data available, by which we are able to classify on a spectrum. It is important to define them, as different types of data have different ethical and legal issues connected to their use.
Firstly, open data, found on the far right of the spectrum, consists of data that is accessible to use and can be shared by anyone. This data has no restriction on usage and can be easily found online. Researchers might hesitate to publish their research through an open access journal as publishing openly has its own legal and ethical challenges. However, it is possible to publish while protecting privacy, commercial confidentiality, and matters of national security, which shall be further explored in the later section. Furthemore, an infographic published by Editage Insights indicates numerous benefits of publishing openly. These benefits include greater numbers of citations, democratising research and creating further impact on one’s research.
In the center, we find shared data that is restricted to a particular group of people or restricted for a specific purpose. For people, it can be restricted to particular researchers in a specialized field or restricted for a particular purpose which is indicated in the data sharing agreement. An example would consist of sharing research with individuals from a particular working sector eg. the medical sector.
Finally, we have on the far left, closed data. This type of research or information is held exclusively by an organization under ‘lock-and-key’, so to say. This prevents research from being disclosed to the general public or to those who are not within the organisation that own the information.
| Internal Access | Named Access | Group Based | Public access | Open access |
| Available in remote locations eg. a library / authorised personnel / privately stored in organisations | Login to access research required / license required / special agreement to read the research | Research that is available online and free to download | ||
| Closed | Shared | Open | ||
Ownership of research consists of proprietary rights and interests which allows for the owner to control terms and conditions of the research. In the case of data, as an intangible resource, the research could be protected by intellectual property rights, copyrights, or patents. Under such protections, the owners have the choice to apply their research on any point of the spectrum, keeping the research exclusively for themselves or opening the research to all. All the choices bring up ethical and legal questions which we shall begin to explore.
Ethical/Legal issues with data
The application of the GDPR on Research
The GDPR applies to researchers just as it does to companies. It is applicable when researchers based within the European Union or outside collect data from European data subjects, as long as the data remains identifiable. Hence, to avoid unethical publication of information/research, the GDPR must be complied with.
What is identifiable information? It is information about a data subject that can directly identify the individual, which include aspects such as their name, address, or phone number. Identifiable information also includes indirect information, such as the geographical location of the user which can help narrow down who the user is. In combination with other information, indirect information facilitates the identification of an individual.
The GDPR does not need to prevent the publication of research, as long as its data protection requirements are complied with. Handling personal data is essential to protect the identification of individuals. In the case that the research involves individuals and their identity, one must obtain consent from the individual in question to publish their information or engage in pseudonymisation. Consent, as explored in a previous article on the obligations of a start-up under the GDPR, acts as a contract between the researcher and the research subject. This allows the researcher to use the information of the data subject legally, defining how, when and what information is obtained.
Alternatively, the use of pseudonymisation entails the alteration of the personal data of an individual beyond recognition. This is done by removing direct identifiers or anonymising relational data. Practicing data management, through the non-disclosure of sensitive data and personal data, is something that should be practiced. By these means, researchers already would meet the requirement of data minimisation.
This is especially important in the case of medical research on humans. Data subjects are the individuals tested on, and their identification for the study is crucial to identify the impact of the study. However, engaging in pseudonymisation from the start would be essential to make the paper available through public or open access.
Non-Disclosure Agreements
Confidentiality in research must be strictly adhered to. The parties working on research together should have a clear understanding of which aspects of their research are covered by confidentiality clauses. In the case that information of a confidential nature is received, the recipient must be able to distinguish the information from their own knowledge, otherwise if disclosed, they may no longer be able to publish or exploit their own information.
Collaboration in Research
Globalisation and specialisation have pushed for more collaboration, replacing individual projects. The growth of the internet has facilitated long distance collaborations to occur and brighter minds to fill knowledge gaps in the market. With collaboration, issues of ethics and legality of it all continue to culminate. Ownership, royalties, decision rights, legal authority and the continuation of said research are just a few aspects that need to be legally determined when collaborating with others.
Increasingly, the complexity of matters associated with collaboration results in legal intervention being a necessity. Ownership, royalties, decision rights, legal authority and the continuation of research are matters that need to be discussed before the commencement of the project. Laying all the issues on the table prior to the start of working relations could avoid future problems.
Consider determining the distribution of credit between the researching parties involved. The authorship should reflect contribution, and therefore it is best to establish the sections of research each author would be responsible for. Furthermore, establishing a collaboration agreement to determine what intellectual property belongs to whom should be a standard. It is also important to share the objectives between the entities. Should formal IP procedures be followed, or do the benefits of open-access publications outweigh the costs?
For more information about collaborative R&D in the European Union, the Knowledge Transfer Working Group of the European Research Area Committee has published a paper describing the guidelines on IP management in international research collaborations.
Plagiarism and Copyrights in Research
Credit is key! Plagiarism infringement entails the use of someone’s work without giving them the appropriate credit and passing the idea on as if it were their own. While copyright infringement is unauthorised use of a work that is subject to copyright protections. In research, the Fair Use Doctrine was established to provide the rights to the creator of work and the benefit to society, whilst protecting both. This allows for the circumvention of asking the creator for permission to download, photocopy, and printing the work if used for the following:
- Criticism
- Comment
- News Reporting
- Teaching
- Research
- Scholarships
The Fair Use Doctrine also describes how to determine whether the work in question can be utilized in the following manner:
- For educational purposes, without the intent of profiting
- The factuality of the work. More creative works are more protected
- The quantity of content that is used is dependent on the work itself, such as an article from a journal, a chart or diagram from a report or newspaper as long as copyrighting is not infringed
- The work is not being used as a substitute for its own purchase
Blocking Research through the purchase of IP
Ethically speaking, patenting research itself should not be an issue. Having a patent does not necessarily give the right to use or exploit the said research. It is rather the monopolisation and exclusive commercialisation of the patented research that can cause harm. The ethical issue arises when a patent is being used for harmful or negatively competitive reasons. This could be the case when placing a harmful patented product on the market or preventing people from accessing a product that is patented. An example is in the case of pharmaceutical companies, where they provide their products on the market, but at prices that individuals cannot afford such as in the case of Daraprim rising from 13.50$ to 750$ overnight.
Legally, this is within the right of the owners of the patented research. Ethically, well, that’s another story.
The argument for patenting follows the logic that researchers and companies would not be able to prevent their rivals from imitating their work. Hence, the researcher is not incentivised to invest in research and development as they would never be able to recuperate their costs from investing into the research. Such funding is necessary to support inventions and intellectual breakthroughs. This makes sense! People should be rewarded for their efforts and economic investment. The commercialisation of their research is what enables the research to continue their investigations.
Nevertheless, a debate arises whether patent offices should be allowed to grant the patents to harmful inventions or for research that will simply be stored away. Similarly for researchers, the question about their responsibility towards society should be posed.
The Norwegian National Research Ethics Committee proposes the following questions that researchers could keep in mind when deciding to patent their work:
- Does our responsibility to society suggest that we should/should not apply for a patent?
- How can our research be made available to the largest possible number of relevant users?
- Does patenting or other instruments to protect intellectual property rights promote or prevent the capacity of our research to give something back to society?
Researchers have the possibility to choose whether they patent their research or not. Patented research acts as a tool for competition, rather than a means of exploring collaboration. Especially in the case of publicly funded research, there is a need to give back to society and expose the results to members of society that could benefit from the findings of the research.
The real ethical issue here is when research is stored away without any use of it, despite its societal benefit. Universities are pushed to commercialise their research and turn their research into proprietary knowledge, as claimed by the OECD. Of course, this results in knowledge not being disseminated. Such behaviour restraints competition in innovation markets and wastes talents of the researchers.
Tips to engage in ethical and legal research
- Do not collect personal or sensitive data if it is not necessary for the research task
- Anonymize data from the start
- Regulate access to particular groups, time frames or locations
- Securely store the information
- Consider the future uses of the information/research conducted – determining the way in which the data will be shared, whether it be open, shared or closed access.
Solutions to avoid unethical use of research
Engage in data sharing agreements
Data sharing agreements consist of agreement between several organisations. The agreement defines what data will be shared, for how long and the restrictions of use. Some examples include memorandums of understanding or contracts to secure the agreement. Such an agreement ensures that the data shared is not misused. Additionally, it avoids any miscommunications regarding the data as it should all be stated in the agreement.
For more information about data sharing agreements, the University of Chicago has provided an excellent run through of the information.
Sharing Intellectual Property
Rather than losing control over the management of the research solution produced, joint ownership through shared IP could be employed. Shared IP enables parties have to be consulted agreeing on further use and commercial exploitation. By these means, all parties would be aware and could decide on the future of the research. The sharing of IP could act as a barrier to publication in the case that the parties do not commonly agree on the future of the project.
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