7. Concluding remarks and lessons to learn¶

From this work we can summarise the following concluding remarks in three groups. The first group is composed of the findings obtained after the literature review; the second consists of policy recommendations based on the content of this report and the third and last are recommendations for practitioners. The three categories are aimed to contribute to a better balance of the detected tensions between OS and IPR and to help both OS and IPR to work together.

Findings¶

In general, the scientific literature and main reports on Open Science do not systematically address IPR issues, as a key element to reviewing the establishment of a new OS paradigm.
The literature review shows flaws in the data that supports traditional assertions that stronger IPR promotes innovation. On the contrary, there is the recommendation to increase studies of the impact of the 'negative space of IP'. No studies have been found on the epistemological damages that a restrictive IP system causes to science.
The accrued figure of EU members receipts and payments in comparison with the United States show a strong asymmetry: the US's net figure is 74 669 million USD, the EU's net figure is -70 280 million USD. This amount includes all IPR categories.
There is no empirical evidence that a stronger IPR system produces more innovation and creativity. Data is not conclusive.
There is an epistemic blindness regarding the existence of free intellectual property works. This leads to the non existence of analysis and data about the wealth they represent and produce. The status of the 'Internet' as a free intellectual property work composed by the set of more than 9 000 RFCs is simply ignored by the literature.
Government funded, prize systems and the IPR system are tools to incentivise more and better inventions that can later be transferred and become innovations for the solution of serious problems like the global COVID-19 pandemic. Patent distortionary and transaction costs should be further analysed.
Current IPR regulations impose a burden on science in at least two domains: first in the bureaucracy that it imposes to open a science that by default cannot be disseminated. Second in the payments of levies for remuneration rights in favour of literary or artistic authors.
Basic science opens unforeseen pathways. It is both essential but non calculable. Its value cannot be estimated because its results are unknown.
The term Intellectual Property comprises four major different fields: copyright, patents, trade marks, and trade secrets. Each one has a different impact on Open Science:
- Regarding copyright, it has a direct impact on journals, data and software as it designs the permissions over the access, use and reuse of the content.
- In relation to patents, each industrial or innovative sector has different inventing conditions, therefore every sector should be analysed separately, avoiding the temptation to assert general conclusions. While the disclosure of the invention is nuclear to patents, different strategies are followed to gain better competitive positions.
- Apropos trademarks, there is no opposition between this field and OS.
- Trade secrets are not admissible in OS.
Under the current copyright regime, works are closed by default, therefore to foster openness in science, consent must be given by the author or an exception/limitation must apply. Consent by the author must be proactive.
Dynamic processes (such as science production) require IP licences that do not hinder changes nor burden the process with unnecessary bureaucracy. The sustainability by a community of the dynamic process depends on this.
Under international treaties and regulations, It is not possible to create an autonomous scientific author whose works would merit different intellectual property conditions apart from the 'all rights reserved' default rule. Therefore, exceptions related to scientific IPR should be legally maximized, avoiding as much as possible the risk of legal proceedings.

Recommendations for policy makers¶

Current IPR standards and regimes should keep up with rapid technological developments with legal provisions which offer online protection. It is urgent to address new copyright and IPR regimes to guarantee a better intellectual protection responsive to the needs of open, transparent and collaborative science.
The international pragmatism resulting from COVID-19 and the positive reactions towards Open Science-Open innovation should be taken advantage of. COVID-19 suggests that the incentives generated by IPR might be improved by global solidarity or in the EU context, by subsidiarity.
Create a new IPR framework for OS at the global level, according to the new digital technologies, the new requirements of science and modern scientific communication needs and facilities, in order to find the right balance between OS and IPR.
Promote basic science due to its essential importance for applied science. Evaluation of basic science through IPR (copyrights or patent) indicators should be further analysed.
The right of an author to protect the openness of his work must receive from the EU and the Member States the same support as the right of an author to close his intellectual work. It is inconceivable that institutions, who use on a daily basis products like the Internet, email and websites created by OS-aligned authors, do not render in favour of these communities the same institutional support, incentives and recognition as they do to corporations that base their business model on closed knowledge or restrictive IPR. Authors of free works should be treated at least equally as authors of closed works.
Raise awareness of the value of basic science and free intellectual works taking the Request For Comments model as an example. The more basic science, the more RFCs, the more possibilities for SMEs to build over free components and appropriate the results. A special attention must be made to avoid appropriateness of the basic science and the IP under free licences.
Facilitate the creation of an international organisation/body to be the trustee of all IPR related to science. This organisation will have the functions of defending openness in science. Therefore, its role cannot be held by organisations that traditionally have demonstrated epistemic blindness to shared IPR.
Facilitate the creation of a Office for Free Intellectual Property Rights and Open Science (OFIPROS) inspired in the office subject matter of the Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012¹ and in line with the new IP Action Plan as stated in the New ERA and the New Industrial Strategy for Europe communications.

If under a hostile context, free intellectual property models have built the Internet, the capacity of this model to work in a favourable context within the new strategy for knowledge valorisation should be explored.

The Office should have the task² to improve the understanding of the value of Open Science and free intellectual property works, their impact, enhancement, awareness, provide mechanisms to improve the online exchange between organisations of the Member States, foster international cooperation and boost the transformation of knowledge into new sustainable solutions.

The activities carried out by this Office would be to establish a transparent methodology for the collection, analysis and reporting of independent, objective, comparable and reliable data relating to usage and development of free intellectual property rights; its objectives, provide regular assessment, determine best practices, draw reports and publications and organise conferences to raise awareness amongst Union citizens of the impact of the development of free intellectual property rights, monitoring the development of new competitive business model, develop training for national officials involved in the protection of intellectual property rights so to raise awareness of free intellectual property, organise ad hoc meetings of experts, work with national authorities and the Commission to develop the usage of free intellectual property rights between public administrations, bodies and organisations in the Member States; work in cooperation with industries and make recommendations to the Commission on these issues.
Amend EU IP regulations through a legislative change to define hyperlinks as a mere linguistic reference, to expand the TDM copyright exception to match UNESCO's diversity and inclusiveness values, to include clear and stronger exceptions for OS not affected by levies on remuneration rights in favour of rightholders of closed copyright works.

Specific recommendations on Intellectual Property for practitioners.¶

All organisations, when using data, analyse the terms and conditions of each dataset. If these are not clear or no consent has been given, then it should be treated as an 'all rights reserved' piece of information.
Learn lessons from the Free Software communities:
- Licence diversity. The possible activities that the creator may allow the users to exercise are innumerable, although the side effect of using different licences is their possible incompatibility.
- Awareness of the necessity of including a licence to avoid the 'all rights reserved' by default system.
- Inclusion of licences within the source code. The licence is not a reference to an external document, but it is included as a text file in the source code trunk. This practice raises in the author the awareness of the necessity of a licence.
- Awareness that the licence may need an update due to changes in the technological or legal context.
- Building tools for standardizing the references to licences and to make them both human and machine readable.
- Existence of communities who take care of projects' sustainability. Every project has at least one side communication channel, apart from the source code main version, which fosters contacts between the developers.
- Release early, release often.
- Expressly mention the legal conditions to access an APIs, waiving the IPR through free licences to make it free.

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32012R0386 ↩
This text is an adaptation of Article 2 of the Regulation (EU) No 386/2012. ↩