Legal & Ethical Issues
Legal and ethical issues directly influence the work with research data in the Humanities, even if these issues are not the subject of research and thus less visible. Research data are within the legal framework of personal rights, data protection laws and copyright laws, as well as within the framework of ethical principles, although the latter are still relatively open and broadly defined. Moreover, although research is internationally interconnected, the national law has to be considered.
Although CLARIAH-DE cannot offer binding legal advice, many partners have a great deal of experience with data protection, the anonymization of data, the granting of legal rights of use as well as licensing conditions for data and software, the conclusion of transfer agreements and with obtaining declarations of consent from contributors to data collections and studies.
The legal framework is often confusing for researchers in the Humanities and similar disciplines. When dealing with research data in Germany, the national laws that have to be considered are, for instance, the copyright law (“Urheberrechtsgesetz”, UrhG), the law on the re-use of information (“Informationsweiterverwendungsgesetz”, IWG) and the General Data Protection Regulation (“Datenschutz-Grundverordnung”, DSGVO). At the state level, there is, moreover, a further data protection law (“Landesdatenschutzgesetz”, LDSG). In addition, there are European guidelines, such as:
- The Directive on Copyright in the Digital Single Market (2019/790)
- The Information Society Directive (2001/29/EG)
- The Directive on the Legal Protection of Databases (96/9/EG)
- The Directive on the Re-Use of Public Sector Information (2019/724)
- The Directive on the Legal Protection of Computer Programs (2009/24/EG)
- The Directive on Certain Permitted Uses of Orphan Works (2012/28/EU)
- The Directive on the Term of Protection of Copyright and Certain Related Rights (2006/116/EG)
A compilation of extensive information with a collection of bibliographies and recommendations on the most important legal and ethical issues can be found on the CLARIN ERIC Legal Information Platform. In the context of DARIAH-DE, Forschungslizenzen.de is an information platform for the legal dealings with research data and their licensing. Next to important information, examples and contact points can be found here. Especially such contact points are of great interest for researchers when it comes to this topic. The instruction brochure “Neue rechtliche Rahmenbedingungen für Digitalisierungsprojekte von Gedächtnisinstitutionen“, which is currently available in its fourth edition, should also be mentioned at this point.
Licencing of Research Data
In many areas of the scientific community in Germany, an open and unhindered access to research data is being promoted. This relates to the creation of data in the research process as well as to the re-use and transfer of inventory data. CLARIAH-DE recommends, if possible, the use of relatively open, internationally established licencing models, especially the use of the globally acknowledged Creative Commons (CC) licences, which are also suitable for research data. In the information brochure “Creative Commons and Language Resources”, central aspects in dealing with research data in connection with CC licences are examined. For extensive information on different licencing issues as well as on cases in which an open licencing is not possible due to opposing rights of third parties (copyright law, data protection law, personal rights), the CLARIN ERIC Legal Information Platform and the CLARIN-D Legal Helpdesk are available.
Ethical Aspects in Dealing with Research Data
Which data are created by whom in which manner? By whom are they being used? For which purpose are they processed and under which conditions can they be published and transferred to others? These ethical issues transcend legal demands, as they also put the focus on potential uses and as they pay attention to the understanding of the data creators and their intentions.
In general, the ethical principles of the European Commission apply in research, which in turn are based on the basic rights and the values rooted in the EU (cf., for instance, Ethics in Social Sciences and Humanities):
- respecting human dignity and integrity
- ensuring honesty and transparency towards research subjects
- respecting individual autonomy and obtaining free and informed consent (as well as assent whenever relevant)
- protecting vulnerable individuals
- ensuring privacy and confidentiality
- promoting justice and inclusiveness
- minimising harm and maximising benefit
- sharing the benefits with disadvantaged populations, especially if the research is being carried out in developing countries
- respecting and protecting the environment and future generations
The following documents on ethical aspects and guidelines in research are recommended:
- European Commission (2018). Ethics in Social Science and Humanities.
- European Commission (2018). Ethics and Data Protection.
- Annotated Model Grant Agreement, Version 4.1./26.10.2017
- Horizon 2020 Programme (2019). Guidance: How to complete your ethics self-assessment. Version 6.14.
- Rat für Sozial- und Wirtschaftsdaten (RatSWD) (2017): Forschungsethische Grundsätze und Prüfverfahren in den Sozial- und Wirtschaftswissenschaften. RatSWD Output 9 (5). Berlin. https://doi.org/10.17620/02671.1
The Helpdesk (firstname.lastname@example.org) also offers the opportunity to contact experts from the CLARIAH-DE network who participate in discussions and exchange experiences on specific research-related legal issues. This enables researchers to clarify legally binding questions with the legal departments of their home institutions or by means of legal advice.Keywords:
Data protection, DSGVO, copyright, ethics, law, data transfer agreement, licensing