Legal Interoperability and the FAIR Data Principles

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Data accessible through the EOSC will be governed by the FAIR Principles, embracing Open Science practices. Legal constraints such as ensuring a secure environment where privacy and personal data are protected and where users of the EOSC can be reassured about issues concerning data security, data sovereignty, intellectual property rights, liability risks and the like, will need to be addressed.

This study on legal interoperability has been commissioned by the EOSC FAIR Working Group. It aims to provide a systematic overview and analysis of the key issues in legal interoperability in connection with the implementation of the FAIR Principles within the context of the EOSC.

Objectives & Challenges

The success of implementing the FAIR data principles, i.e. the ability of the research community to share, access, and reuse data, as well as to integrate data from diverse sources, requires, among other aspects, the free flow of research data without unnecessary constraints, allowing for discovery and interoperability within the EOSC. Against this background, the FAIR Working Group has commissioned this study on legal interoperability on how, in the context of the EOSC, the application of FAIR data principles is enabled or blocked by legal constraints and impediments in the EU. The results of this study should be considered within the broader EOSC Interoperability Framework.

The purpose of this study is to make recommendations in relation to legal interoperability and how, in the context of EOSC, reusability of data is enabled or blocked by legal constraints. This study does not attempt to provide any value-judgement or policy recommendations in relation to the EOSC initiative or to open data and open science principles in general.

Main Findings

The study is structured as follows:

Chapter one – provides an introduction and background to the study, including scope, limitations and a number of definitions intended to facilitate the discussion that follows.

Chapter two – addresses key thematic legal issues, including:

  • Copyright (including database rights) and licences;
  • Other intellectual property rights (e.g. patents, trade secrets, neighbouring rights);
  • Privacy and data protection (GDPR);
  • Other restrictions and legitimate reasons (e.g., protection of sovereign genetic resources and traditional knowledge); and
  • Private law considerations.

Chapter three – adds to the analysis through a consideration of a number of enabling legal instruments.

Chapter four – concludes with a summary of the 31 recommendations which have been highlighted throughout the study.

Main Recommendations

The final part of the study provides 31 recommendations and include (but are not limited to) the following:

  • Open access to research data is an enabler of legal interoperability. The promotion of FAIR principles should go hand-in-hand with efforts to make data open in accordance with the principle that data must be “as open as possible and as closed as necessary”.
  • Copyrightable metadata should be free from any restrictions and assigned a public domain waiver. The Creative Commons No Rights Reserved (CC0) or the Public Domain Dedication and Licence (PDDL), or an equivalent statement of rights should be preferred.
  • Metadata should include a standardised human and machine-readable statement of rights, legal restrictions, applicable licences, and, where relevant, additional conditions of use (including applicable jurisdictions) of the data that they are assigned to.
  • The EOSC should provide a mechanism, for example in the Rules of Participation, or by way of guidance, to facilitate the implementation of the tecommendation above in a harmonised manner.
  • All copyrightable components of the research data and their respective licences should be clearly identified in the metadata and assigned the correct rights-holder. In the case of database (sui generis) rights in repositories, the applicable (permissive) licence should be included in the terms of use of the repository.
  • Copyrightable data should be FAIR and, to the greatest extent possible, be made part of the public domain or assigned a permissive licence, unless legal or legitimate reasons apply. The Creative Commons No Rights Reserved (CC0) or the Public Domain Dedication and Licence (PDDL) or an equivalent statement of rights should be preferred. In cases where liability is a concern that cannot be addressed by other means, the CC BY 4.0 licence is an appropriate alternative.