Can Fair Use apply to data? – Fair Use Week 2016

Did you know that data cannot be copyrighted?  It’s true, data is factual, not creative and as and such it falls outside the bounds of U.S. copyright law. This means you can’t expect the same types of protection, or restrictions when it comes to data. And yet… You can get in hot water for republishing someone else’s data, why is this?

It has to do with an important nuance in U.S. copyright law: facts cannot be copyrighted but their “representations” can be. The most common types of data representations are tables, charts, and graphs. Animations, videos, and audio sequences can also be data representations but the 2-D types are far more common. These data representations are considered to have a creative element and are subject to copyright as compilations. Nacy Sims (@CopyrightLibn), University Copyright Librarian for the University of Minnesota, does a great job of explaining this in the video “Making Decisions About Your Research Data.”

There’s another important piece of copyright law to be aware of in regards to data representations. If you’re lucky enough to have access to the data used to create a representation you can create your own, new, data representation to which you’ll hold the copyright. This is a way out of situations where you need to reuse one of your own data representations in a new publication but no longer own the copyright to the original. Instead of seeking permission from the copyright holder (usually a publisher) you can generate a new data representation, just make sure it’s different enough to not infringe on the original.

Sadly in many cases creating a new representation isn’t possible because the underlying data hasn’t been shared. This is just one of the many reasons why data sharing is important – data hoarding hampers research. If you find yourself without the data needed to create a new representation then you will need to rely on the Four Factors of Fair Use (or seek reuse permission from the copyright holder).

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