Legal issues in e-Infrastructures

Legal issues may directly influence the development and sustainability of e-Infrastructures and are as such increasingly important. In 2008, the e-IRGSP2 (e-Infrastructure Reflection Group (e-IRG) Support Programme 2) project conducted a study of key legal issues concerning research infrastructure technologies and collaborations. The report examined three areas that need to be tackled to ensure sustainable development of e-Infrastructures:
-    the new legal form of the European Research Infrastructure Consortium (ERIC);
-    the pre-commercial procurement initiative put forward by the European Commission;
-    other legal issues pertaining to the use of electronic infrastructures, such as privacy and intellectual property rights (IPR).
The report gives an overview and seeks to foster discussion on these crucial issues. 

A new legal framework for research infrastructures: ERIC
The legal form of a research infrastructure has long-term implications for its creation, management, finances, human resources, development and sustainability. As such, choosing the right legal form can be complicated. The e-IRGSP2 report outlines the different legal forms available under national, international, and Community law, and examines ERIC: the European Research Infrastructure Consortium proposed by the European Commission as a new legal instrument for research infrastructures of pan-European interest.

ERIC has several benefits: it provides a legal personality recognised by all Member States; it offers some of the advantages enjoyed by international organisations, for example, VAT exemption; it meets non-profit criterion while allowing limited economic activity and cooperation with industry (essential for promoting innovation and progress); and it is easy to establish and flexible regarding the possible types of partnership.
However, the lack of precedent concerning this legal form raises certain issues. In particular, the regulation of several issues will rely on agreement between participating members and the national law of countries hosting an infrastructure. Therefore, the statutory provisions that define the organisation (including its decision-making processes, voting rules, member obligations regarding performance, liability, quality of service and security, etc.) will be of primary importance for the future implementation – and examination – of this new legal form. 

Pre-commercial procurement issues crucial for innovation
Another important issue is public procurement, which, if adequately implemented, can have a significant impact on innovation. The Pre-Commercial Procurement (PCP) approach supported by the European Commission will undoubtedly stimulate R&D spending by public Member State entities. In this approach to PCP, a public purchaser can acquire, via competitive tender, research services leading to the development of product prototypes, prior to these products becoming commercial. Involving a public purchaser in this way can result in the production and supply of better and cheaper products. Thus PCP is likely to stimulate economic growth and new jobs if used as a strategic policy instrument. PCP can also complement other research and innovation policy instruments, such as structural funds, R&D tax incentives, joint technology initiatives, or state aid for R&D. Limiting PCP to European suppliers can also contribute to the development of new sectors of European leadership in the global market, thus strengthening European innovation and competitiveness.

Data management and intellectual property rights: a growing concern for e-Infrastructures
Data is at the heart of the knowledge society. However, the use of large volumes of data in e-Infrastructures raises problems with security, reliability and privacy protection. Tackling data protection issues in e-Infrastructures requires examination of related issues, such as data processing, responsibilities of data producers and managers, national and/or territorial application of data protection directives, and international data transfer.
Management of Intellectual Property Rights (IPRs) is another important issue, and although the research community has identified and analysed several aspects of this topic, there is still a long way to go before consensus can be reached and global directives put forward. Both researchers and e-Infrastructure users and providers are interested in exploring and settling this issue, which is felt to be a barrier to the further development of e-Science and collaboration with business. Currently, e-Infrastructure users, providers, researchers and developers must be aware of the risks and liabilities they may face in violating third parties’ rights; at the same time, e-Infrastructures must continue to promote innovation and development. It is thus important to find a good set of IPR directives that protect users and developers without jeopardizing the main objectives of e-Infrastructures.
The full e-IRGSP2 report can be downloaded at: http://www.e-irg.eu/images/stories/publ/e-irgps2_public_deliverables/e-irgsp2_d4.1.pdf