We are like dwarfs on the shoulders of giants, so that we can see more than they, and things at a greater distance, not by virtue of any sharpness of sight on our part, or any physical distinction, but because we are carried high and raised up by their giant size.

Bertrand de Chartres¹

Executive Summary¶

Open Science (OS) is considered the new paradigm for science and knowledge dissemination. OS fosters cooperative work and new ways of knowledge distribution by promoting effective data sharing (as early and broadly as possible) and a dynamic exchange of research outcomes, not only publications. On the other hand, Intellectual Property (IP) regulations seek to balance the moral and economic rights of creators and inventors with the wider interests and needs of society. Managing knowledge outcomes in a new open Research and Innovation ecosystem is challenging and should become part of the EU's IP strategy, underpinning EU policies with the new Open Science-Open Innovation (OS-OI) paradigm.

The usual justification for copyrights and patents is the incentive and reward for inventors resulting in benefits for the society, fostering innovation and societal impact. Different organisations recognise the need of maintaining a balance between the rights of authors and the larger public interest, particularly in education, research and access to information, as well as the consideration of the scope, extent and application of intellectual property rights in relation to the equitable production, distribution and use of knowledge. However, there are cases of a tacit tension in the natural relationship between IPR and Open Knowledge distribution noticed on a global scale in different contexts, initiatives and attitudes of the scientific community. This tension has confirmed in the wake of the COVID-19 pandemic, where there is a concern that IPR may prevent public access to medicines, particularly vaccines. Governments, scientists, media and society at large are discussing new licensing provisions to circumvent barriers to human rights like the right to health or the right to science, without preventing innovation. There is a clear need of reflections like the one we present here to address the necessary compatibility of some IPRs with Open Science and Open Innovation.

This report produces a critical analysis of the literature on the relation between Open Science and Intellectual Property Rights protection and how they might live harmoniously in the new and necessary paradigm for research in the open, by scoping the statement 'as open as possible as closed as necessary'. The starting point hypothesis for the analysis about IPR and OS in Europe:

There are no incompatibilities between IPR and OS. 'On the contrary the IPR framework, if correctly defined from the onset, becomes an essential tool to regulate OS'.
The EC has a role in promoting OS and its balance with IPR. This is especially important when copyright was re-defined in Europe and the EOSC was being established.
Existing best practices have to be a source of inspiration. For example, understanding how public Research Performing Organizations (RPOs) and industrial partnerships are striking a balance between IPR and open knowledge.

In general, there are very few studies, documents, reports and specific scientific literature (papers, books, etc.) that directly and comprehensively address the coexistence of OS and IPR. However, different authors, stakeholders and reports point to IPR as one of the hurdles to making Open Science a reality without inhibiting its subsequent valorisation and feeding Open Innovation. This report covers the gap of an interdisciplinary analysis between economic rights and authorship, but goes further into other components of OS and their relationship with IPR, notably data and software, as well as other aspects of digital science and online scientific communication. The main literature from the last 10 years on this topic is reviewed here but also provides an in-depth reflection of the state of the art.

In the Mertonian view of sociology of science, the principle of openness has been seen as inherent in academic activity and hearkens back to the original precepts underpinning the conduct of researchers. However, OS has different, not always consistent, definitions. For the purpose of this report OS refers to the entire process of conducting research as well as a 'systemic change' highlighted by the European Commission that might improve science through collaborative and open ways of producing and sharing data and knowledge as soon as possible throughout the entire research cycle. A different paradigm must be created for scientific knowledge production, communication and valorisation, coherent with current technological possibilities and societal needs. The eight components of OS, discussed and challenged by the EC, have a definitive implication with IPR: Future of Scholarly Communication, FAIR data, EOSC, Next Generation Metrics, Rewards and Incentives, Skills in Open Science (Open Education), Citizen Science, Research Integrity, have to be analysed confronting IPR to guarantee their right implementation.

OS is supported by the fundamental 'right to science' and, on the other side, IPR protects the rights of the creators. The five domains where transformations should be made to evolve from the current paradigm of research to OS are: from open access to open science; from human-readable to machine-readable content; from open data to FAIR data, data sharing and data re-use; from traditional publishing to technology-driven service; from semantic enrichment of content to semantic publishing.

This report also analyses these aspects of IPR with regard to OS components and principles:

Copyright. In general, IP includes rights that are related to some kind of effort or achievement the creation of a work through intellectual efforts over a common good, so affecting scientific results. This study analyses in depth copyright, patents, trademarks and trade secrets. The most frequent studies about IPR and opening scientific knowledge have been devoted to the Copyright and Open Access to research publications, but this study covers also the economic impact of the IP concluding, after the World Bank data analysis that IPR have geopolitical importance and the EU does not occupy a relevant place. In Europe the IP is based in the concept of territoriality that implies that national rules govern copyrighted subject matter within the territory of a given Member State.

Several authors (Hess, Ostrom and Unger) concluded that the concept of IP ownership is not relevant in the digital age: what are crucial are the different possibilities attached to the possession or access of a digital information. As it is said in the Budapest Declaration: An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge. The new technology is the internet. The public good they make possible is the world-wide electronic distribution of the peer-reviewed journal literature and completely free and unrestricted access to it by all scientists, scholars, teachers, students, and other curious minds.

In the normative context of Copyright in Europe, set up by Berne Convention, from the creation of the work, the author is entitled to two different sets of rights: moral and economic, including exceptions or limitations (copy, alter, distribute or communicate to the public) configured legally in Europe as a closed list, where the remuneration rights are directly connected. In this normative context is where science has to communicate to the public its results. One of the reasons why science needs to be public is because it must be 'falsifiable' and to become public at least two activities (reproduction and distribution or reproduction and public communication) are needed. IPR and its default 'all rights reserved' rule operate in one of the core necessities of science: public dissemination to allow public scrutiny.
Patents. A patent describes an invention and creates a legal situation in which the patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent. In Europe, a group of contracting states signed the European Patent Convention, establishing a single European procedure for the grant of patents on the basis of a single application and created a uniform body of substantive patent law designed to provide easier, cheaper and stronger protection for inventions in the contracting states.

However, some authors (e.g. Stiglitz) think that the patent system is not ideal for innovation, because it creates distortionary and transactions costs, and for the dissemination of knowledge it is not the best possibility available. IPR are important but they are just 'part of a portfolio of instruments'. The other elements should be strengthened, as well as IPR should be redesigned to 'increase its benefits and reduce its costs.' 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.
Trademarks. A trademark is an informational reference to an object, due to its nature it does not play any role in the transmission of information in which the object may consist. Goods or services provided by any natural or moral person do not alter their reproducibility or transmissibility due to having (or not) a trademark that identifies them, although it affects public perception of represented objects. But perception of an object is not an element that affects its replicability.

A point of friction may appear in certain common uses of a trademark without consent of the rightsholder, but nevertheless it would not disturb the transmission of information.
Trade secrets. Trade secrets, as part of IPR, consist of secrets of all kinds. They may be of a personal, commercial or industrial nature, or concern the state and its administration. Their origin may be found in the protection the guilds exercised over the practices of their members. Trade secrets are incompatible with Open Science.

When analysing the balance between both OS and IPR, the default legal requirement for the transmission of a work is either an explicit consent, or the usage of an exception, or the existence of public domain. In case of conflict, it is the user of the work who has the burden of proof that one or more of these requirements exist. Therefore, using works for a scientific activity may produce risks that should be avoided by a correct use of the permissions designed in IP regulations.

Although Open Access to scientific publications is the corner stone for Open Science regarding IPR, in the last 20 years, new strategies and approaches to OA, try to obtain immediate OA to all scientific publications coming out publicly-funded research by retaining the necessary intellectual property rights by the researchers, allowing the possibility of licensing their works with open licenses.
When it comes to data and IPR, it could be summarised that data and facts do not have protection under copyright, but databases do, in the digital world and economy this is no longer acceptable. Working with FAIR (Findable, Accessible, Interoperable and Reusable) data challenges IPR in the reusability of the datasets, where there is an inherent risk related to IPR infringement. Hence, in order to guarantee interoperable and reusable data, it is necessary to check the validity of the consent of the rightholder or whether an exception/limitation applies.
Regarding free software, there is a general misunderstanding that it is against copyright. Free Software is another way authors have to exercise their copyright and then manage their intellectual assets. Free Software advocates use copyright to force the openness of their creations, which is a legitimate way to manage intellectual property, often based on ethical considerations. In OS, access to source code is not only a matter of IPR but also the necessary requirement to operate at all knowledge levels. Access and operability on source code (copy, modification, dissemination) is one of the core aspects of Open Science not because of IP.
IPR have also an impact in daily activities held by scientists when managing data (APIs, taxonomies and ontologies; hyperlinks and Text and Data Mining). Awareness of these points would avoid the risk of IP infringement faced by scientists or the organisations they belong to. In this sense current European legislation should be adapted to include exceptions for Open Science, including levies on remuneration rights.

One of the big issues to address a better mutual understanding of Open Science and IPR and their better interaction is to scope the principle 'as open as possible, as closed as necessary'. Few studies address an analysis of the expression as 'open as possible, as closed as necessary', referred to Open Science and, when it is tackled, they only occasionally refer to the reusability of the data and their licenses. The limitations to the openness of the information based on the nature of the content could be imposed by the normal limitations that exist in a democratic regime, and the exception to the limitations could be decided, by local, national or regional pertinent governing instances. But when the scope of the expression 'as open as possible, as closed as necessary' is analysed under IP norms, then the decisions to close scientific knowledge on publicly funded projects should be analysed, scrutinized, rejected by default and only accepted if a closed catalogue of reasonable conditions is met. Open Science categorically does not mean indiscriminate openness, but the default rule is that any closed reason should be made evident and that the limits based on the nature of the information already serve as a reasonable scenario.

The main remarks and lesson to be learn from this report are classified in three sections: general findings, and recommendations for both, policy makers and practitioners/users.

Findings¶

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.
Data about the a stronger IPR system produces more innovation and creativity are 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: in the bureaucracy that it imposes to open a science that by default cannot be disseminated; 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.
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. Exceptions related to scientific IPR should be legally maximized, avoiding as much as possible the risk of legal proceedings.

Recommendations for policy makers¶

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 paradigms 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.
Current IPR standards and regimes should keep up with rapid technological developments with legal provisions which offer online protection. 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. 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.
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. Authors of free works should be treated at least equally as authors of closed works.
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 an 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 2012² and in line with the new IP Action.
Review and 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 should be 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 standardising the references to licences and to make them both human and machine readable.
- Existence of communities who take care of projects' sustainability. Release early, release often.

We are in a new R&I paradigm digital technologies, particularly the World-Wide Web, enable a distributed behaviour of collaborative research and the possibility of communicating knowledge immediately, openly and at-scale through the network. Opening up research processes and Science as such leads us to a promising transformation of the way we do science. Despite this, we continue to carry out, publish, finance, give attribution and evaluate research in the same way as in the last century. In the more than thirty years of coexistence with the Web, we have undergone various paradigm changes in the creation of a new digital society, challenging old regulations, including the traditional IPR.

Usually attributed to Newton. See Merton (1965). ↩
http://data.europa.eu/eli/reg/2012/386/oj ↩