Intellectual property is a societal innovation to manage relationships among competing groups by defining a role for creators, enforceable by statute and contract. The NSF Data Management Plan does not change the way intellectual property has been handled under federal awards. Universities will still be able to hold copyright in works created under the award and obtain title to patents conceived or reduced to practice under the award. What research projects will need to do is to articulate how they are providing permissions/licenses to the data, and this may or may not involve intellectual property rights depending on the type of data.
Bringing Data Into Your Research Project
It’s possible that your project may need to arrange for access to third party data or associated research artifacts that have specific limitations in how they can be distributed (based on IP or the agreement by which your project obtained the data or artifact). Innovation Partnership Services (IPS) can help your project obtain permissions. Your research project may also have received data under confidentiality or other restrictions that will need to be identified and explained in your data management plan. IPS is also happy to assist you in handling these issues.
Facts alone are not copyrighted but their arrangement may be sufficient original expression to merit copyright. For databases, there may be a mix of copyright and data for your project to consider. Some countries recognize certain rights in databases (i.e. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases). If you receive data that holds no copyright, the agreement or permissions you obtain the data under may be a simple donation or a bailment, conditioned on your respecting certain rules called out in the permission.
Using IP Rights To Make Your Data Available
Your research project should consider what permissions are appropriate for users when you make the data and/or copyrighted works from your research project available. You should consider potential users other than the Federal Government, because it already receives a non-exclusive royalty free license for government purposes to copyrighted works and data created under federal awards (2 CFR 15).
There are a number of factors for you to consider (attribution, notification of use, redistribution, quality control/standards, and risk). In some instances, your research project will not be concerned about any of these factors and may effectively donate the data to the public. In other instances, you will want to create some type of "commons" with respect to sharing and use of the data that sets expectations for what community members agree to for sharing. You may also need to restrict certain portions of the data (or types of data) based on restrictions you agreed to in receiving data from a third party. Intellectual property rights such as a copyright are simply tools used as part of the permissions (or license) under which your research project provides access to the data.
In the event that your project recognizes that an invention has resulted from federally funded research, contact IPS to complete an invention disclosure and discuss your goals for the work. IPS works with researchers with projects at any stage to help them think creatively about dissemination and knowledge transfer strategies. Ideally, this discussion precedes the dissemination of data under the data management plan and allows your research project to execute on your plan for distribution of research artifacts created under your award.
The University has an obligation to disclose each new invention created under the grant to the federal funding agency within two months after the inventor discloses it in writing to the university. It is not always clear when an "invention" has arisen, so feel free to contact Innovation Partnership Services anytime you have a question.