COHRED’s Fair Research Contracting (FRC) Initiative, aimed at identifying best practices for negotiating equitable collaborative research partnerships that could help build sustainable research and innovation systems in low- and middle-income countries, continues to stir interest and to generate positive feedback. Recently, we have received a query via Twitter from Maternova Research, a non-profit affiliate of Maternova, which provides us the opportunity of remarking some important issues.
In a collaborative research partnership researchers should always consider the legal, ethical and practical implications for the data access, control and ownership. Research data, can often be referred to under the concept of Intellectual Property Rights. Thus, while some contracts may have specific terms and conditions pertaining to data rights, others may refer to data access under the general clause of Intellectual property rights. Negotiating data access and publication rights is an important and complex issue with some funding institutions placing restrictions such as exclusive ownership and access to research project data. Indeed, the landscape of intellectual property is broad and most often partners in health research lack the tools or strategies to make appropriate decisions that fit a rational engagement.
COHRED’s FRC Initiative aims to encourage research partners to carefully consider how they intend to approach the issue of data rights (often termed data ownership, data sharing or data access) from the outset when negotiating with a collaborative research partnership. While there exists a wealth of literature and some institutions have gone as far as developing template clauses for data rights, we encourage researchers to take the step insofar as it means to address complex issues early on in the research contracting process and not necessarily sign template contracts provided by funding institutions. COHRED’s FRC encourages that such clauses fit the disparate needs of the partner in research. The FRC initiative supports fairer research principles and practice and the maintenance of data integrity. Therefore, issues such as who will own and have access to research data/outputs in research collaborations context are very important.
Depending on the kind of research conducted, data can be varied and thus research partners would need to carefully consider how they wish to make it available for future use, for further research, to others or public benefit. Thus a carefully tailored data access/sharing clause is key. The difficulty arises when some institutions have specified data sharing policies and the recipient funding institutions find themselves limited in negotiating around such clauses in a contract and as a result feel obliged to sign contracts at the cost of losing the funding where the research data or outputs are owned exclusively by the funding institution. Thus the implication is that data ownership is restricted and may not be freely available for further use in other research undertakings. In such cases, an in depth evidence based analysis can be made to demonstrate that the needs for access to data is the core for the accomplishment of fair research outputs. Under such circumstances, gaps in the clauses need to be filled to ensure that the partner in question has access to essential data.
We can’t say with certainty that there is one particular template that sets out the best boilerplate language for data access and publication rights. However, there are a number of resources that we have developed to help research partners think through similar issues before signing off on a research contract as well as the types of factors that need to be considered in the negotiation process. This is particularly the case when a funding institution provides a template agreement, which could well be negotiated for more equitable terms. This would go a long way in strengthening global collaborations in health research partnerships.
The FRC Initiative addresses some key challenges relating to Intellectual Property, research costing, technology transfer, the legislative context and data sharing in the health research context. In addition to this we have developed 5 key guidance notes and a guidance booklet to assist in the ‘soft’ skills of negotiation (how to engage with your negotiation partner to get the best results for your organization). These materials aim to assist research-based organisations (who may not have specialist research contracting departments or have a lack of access to legal expertise) to get greater benefit from collaborative research activities about the issues in research contracting, particularly inequitable research collaborative contracting arrangements.
We would like to refer you to our website, where we offer useful guidance on research for health contracting. In particular, we would suggest you to go through the guidance note ‘3’ entitled ‘Ownership & Sharing of Data & Samples’. Also, please check page 17-21 of the FRC document entitled ‘Where there is no lawyer: Guidance for fairer contract negotiation in collaborative research partnerships’. In addition to this, WIPO, the Wellcome Trust, the National Institutes of Health and INDEPTH are typical examples of organisations that have developed extensive policy guidelines on access to research data, outputs and resources.
Jacintha Toohey (COHRED)
Note: for other useful links and for reading through sample clauses in research contracts, please go here