There is quite a lot of confusion, complexity, and even ambiguity with regard to the legal protections governing scientific data.\cite{national2012The} In general, scientific data are treated as facts and therefore not copyrightable under US law. However, the aggregation of the data into a single compilation or database may be copyrightable in the US. Additionally, and importantly, the codes, formats, metadata, data structures or any ‘added value’ to the data could also be subject to copyright. Laws in other parts of the globe, particularly the European Union, add complexity to the situation. The EU’s Database Directive, for example, protects the wholesale use of databases by other parties without permission.
There may be instances where the authors of a document may not want their data released immediately on publication of the supported manuscript. They may have very good, justifiable grounds to protect their data for some period following publication. One likely reason may be additional time required to file an invention disclosure related to the data. Another case may be that the authors are in the midst of writing another manuscript dependent on the same data. To account for these special cases, the publication should have allowance to grant the author an ‘embargo’ period to protect the data for a short time after document publication. Typically by granting an embargo the author must post the supporting data to a repository prior to manuscript publication, but the data is not released to the public until the embargo period has expired. This is a standard practice in other technical disciplines, with limits of 12 months being typical and at the discretion of the editor.
Proprietary and export control restrictions may also affect the release of the metadata associated with the dataset, and could warrant embargo or even permanent withholding of the entire metadata description. Take a researcher that’s been provided a quantity of material by an industrial partner. The researcher may be free to report on a newly observed deformation phenomenon in the material with respect to its microstructure, but may be restricted by the partner in providing proprietary details about how the material was processed. In this case, the metadata may not contain the full pedigree and provenance needed to reproduce the experimental results. Export control provides an analogous situation; the data may not be restricted, but the metadata needed to provide full pedigree and provenance may reveal export controlled information.\cite{Ward_2013} Allowances for the withholding of metadata from publication must be in place and these decisions to either accept the embargo or reject the dataset should be left to the reviewer and editor. It should be noted in publication policy that authors take full responsibility for review and release of proprietary and export controlled information.
Given the discussion above regarding intellectual protection of data, policy regarding the requirements for licensure of data for reuse should be made clear. Of course, one must also consider where the data repository resides, so any policy may have somewhat limited scope. One desirable route is to require all new data be covered by a CC-BY license, as defined by Creative Commons.\cite{ccby3} A CC-BY grants free use of data by all parties, including for commercial use, but does require attribution. Still unanswered questions linger regarding any liability issues with making data accessible. Again, consideration must be given to where the data reside (who is making it available) as to liability determination.