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2. A starting point: the fundamental ‘right to science’

Access to scientific results is a fundamental right. In a broader perspective, Erin McKiernan concluded in a post in The Guardian that 'access to information is a human right, but it is often treated as a privilege. This has to change. And it will take all of us to make it happen' (McKiernan, 2014). Open Science has emerged as a way to challenge the status quo of privileged access to scientific knowledge, particularly that which results from publicly funded research.

The Universal Declaration of Human Rights (UDHR) of 1948 established the fundamental right to science and culture in article 27: '(1) Everyone has the right to freely take part in the cultural life of the community, to enjoy the arts and to participate in scientific progress, and in the benefits that result from it (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author'1. The UDHR acknowledges the intellectual property paradox by contrasting a right to access to knowledge in the first paragraph with the right to the protection of the moral and material interests of the author in the second paragraph (Geiger et al., 2018).

The International Covenant on Economic, Social and Cultural Rights (ICESCR), issued in 1966, is considered the major international human rights instrument addressing Science and Culture as fundamental rights (Chapman, 1998). Endorsed by 130 countries, the ICESCR expanded to include the enjoyment of scientific progress, as well as the need of conservation and diffusion of science, in its article 152:

'1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; © To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.'

'2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.'

This principle of conservation, development and diffusion already recognised in 1966 is, fifty years later, the core legitimacy of Open Access in the Commission Recommendation (EU) 2018/790 of 25 April 2018 on access to and preservation of scientific information3. This recommendation defines the preservation of scientific research results as being in the public interest, and the Commission exhorts the Member States (MS) to put in place infrastructure and solutions for the long-term preservation of all the research outcomes in digital formats, including publications and research data.

Finally, article 15 of the ICESCR of 1966 introduced the 'freedom of the researchers' as an indispensable value, as well as cooperation in science, which is one of the main features of new Open Science practices:

'3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.'

'4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.'

The UDHR and the ICESCR jointly recognise the right to science and the right of protection of the moral and material interests of the results. Both rights are to be treated equally (or together) in the scientific process. Globalization and the increasing commercialization of science, along with the oligopoly of the big publishers and a traditional misleading perception of how and where to publish, have made it even more difficult to achieve the balance envisioned in Article 15 of the ICESCR. These trends have affected the nature of science, one of the most international activities. Advances in science require freedom of inquiry, the full and open availability of scientific data on an international basis, and open publication of the scientific outcomes (Chapman, 1998).

Other international and regional human rights instruments recognize this right. At the EU level, the Charter of Fundamental Rights of the European Union (CFREU) 2012/C 326/024 does not expressly mention the right to science as a specific fundamental right, but underlines something very important for the purpose of this report: the freedom of the researcher (Article 13): 'The arts and scientific research shall be free of constraint. Academic freedom shall be respected', an aspect also included as indispensable for scientific research in article 15.3 of the ICESCR.

The weakness of the UDHR (1948), the ICESCR (1966) and the CFREU (2012), which should be considered upon reflection of the controversial marriage of IPR and (Open) Science results, is that scientific and cultural works are treated together, putting science at the same level as the creative and entertaining industries where copyright has found its main audience. As we will argue below, when it comes to IPR, the same norms regulate two domains with opposite interests: it is in the interest of the entertainment industry to control the dissemination of a work, establishing different release windows5 in which to sell the same creation for a different price (Ranaivoson et al., 2014, p. 13) while, on the contrary, it is in the interest of science to share the work as early and widely as possible. The rule that everything is interdicted by default matches the interests of the entertainment industry, because it is the legal tool which allows for the windowing commercial strategy, but it works against the necessities of science, which are to remove all possible dissemination barriers with no occlusive windows at all.

The right to the benefits and results of science has been deeply recognized and studied from different perspectives of the right to science and intellectual property (Bammel, 2014; Chapman, 1998; Petitgand et al., 2019; Shaver, 2009) but, unlike other human rights, it is not legally defined or regulated (Wyndham & Vitullo, 2018). The scope, normative content and obligations of the 'the right to science' remain underdeveloped, while scientific innovations are changing human existence in ways that were inconceivable a few decades ago (Shaheed, 2012). Despite these normative foundations, the right to science has long remained a 'Cinderella right' (Petitgand et al., 2019) citing professor Bartha Maria Knoppers. By virtue of this right, individuals should not only benefit from the products of science but also be able to adopt scientific concepts, theories, and methods in order to become more independent and capable of conducting their personal lives and participating in their community (Irwin, 2015; Wyndham & Vitullo, 2018).

For this reason, in the last decade the United Nations (UN) has taken up the 'Cinderella right', particularly in 2018 the United Nations Committee on Economic, Social and Cultural Rights (ESCR6) issued a list of 29 questions related to defining the right to science to ensure that citizens can benefit from science and, if they choose, participate in it. Some of the most important questions were: what is the ideal balance between the right to benefit from science and intellectual property rights? How should government obligations under the right differ based on available national resources? What is 'scientific knowledge' and how should it be differentiated, if at all, from other kinds of knowledge?

At the beginning of 2020, the Committee on Economic, Social and Cultural Rights prepared a draft general comment on science to expand 'the right to science' and sought input from stakeholders including Member States7. This comment from the Committee on ESCR finally claims the right to science and also underlines, again, the need to find 'measures to harmonize intellectual property with the right of all persons to access science and its benefits; and adequate protection against all forms of discrimination' (Uprimny & Mancisidor, 2020, p.17). It particularly refers to a balance between Open Access and sharing of scientific knowledge and intellectual property. But the Committee underlines that 'intellectual property is a social product and has a social function' (Uprimny & Mancisidor, 2020, p.13), and unreasonably high costs for access to scientific knowledge should be prevented in the same manner that other essential goods enshrined in human rights (like medicines, food, learning materials) should not be prohibitively expensive. This claim can also be tacitly reflected in the Sustainable Development Goal 10 on reducing inequalities8.

In November 2019, the UN organised a Roundtable Discussion on a Global Science Commons to discuss the crucial role of Open Science in the achievement of the UN 2030 Agenda, resulting in a document9 outlining a Science Commons as the framework organized around principles, universal values and the architecture of open research, and based in OS as a key accelerator of the Sustainable Development Goals (SDGs).

COVID-19 pandemic: confirmation of the 'right to science'

In the last two years, especially due to the situation created by COVID-19, the right to science has been highlighted along with the urgency of science to be open and collaborative (Akligoh, 2020; Barbour & Borchert, 2020; Besançon et al., 2020; Moradian et al., 2020; Zastrow, 2020)10. In this extraordinary situation, (Capps, 2020) defines Open Science as an 'open commons', in which a 'right to science' renders all possible scientific data for everyone to access and use. This author argues that open commons generate a community of rights, made up of people and institutions, whose interests mutually support the public good.

The European Commission (EC) reacted in 2020 to the 'right to (open) science' global trend both at the political and infrastructure levels. The EC launched the manifesto for EU COVID Research Maximising the accessibility of research results in the fight against COVID-1911 that evokes three simple but clear principles: 1) to make public and accessible all COVID research outcomes coming from EU-funded research 2) to make all the papers and research data immediately openly available, particularly sharing the data related to COVID-19 research on the specific platform created for that purpose12; and 3) grant (where possible) for a limited time non-exclusive royalty free licenses on IP resulting from EU-funded projects. The same spirit also inspired the so-called Open COVID Pledge13 to make intellectual property available free of charge for use in ending the COVID-19 pandemic and minimizing the impact of the disease. This pledge can be performed by adopting a specific Open COVID License (OCL) or adopting another open license that carries out the intent of the pledge14.

This eager claim of OS has also shown up in different authors, International Organisations, NGOs, and even private institutions in the business of science. But it reached its full harmonisation with the right to science in the Joint Appeal for Open Science launched by UNESCO, WHO (World Health Organisation) and the Office of the UN High Commissioner for Human Rights15 where article 15.1.b) of the ICESCR was specifically reasserted as the fundamental right to enjoy the benefits of scientific progress and its applications, and clearly advocated for open, inclusive and collaborative science. This joint appeal states everything discussed in this section regarding the value of Open Science and the legitimacy of the right to science. OS is the new paradigm for science that will help us respond to the immediate challenges of a situation of international health emergencies like COVID-19, reduce inequities, and accelerate progress towards the implementation of the 2030 Agenda for SDGs.

The OECD16, UNESCO17, The World Academy of Sciences (TWAS18) and the EC19 have underlined the critical importance of openness to combatting COVID-19 (Besançon et al., 2020). Specific open platforms have been created by countries20, institutions and collective initiatives21 and even by commercial publishers22. Belli et al. (2020) analysed more than 18,000 publications collected in the Web of Science, and determined that 90% are Open Access. Although it seems obvious that there is no going back (Barbour & Borchert, 2020), it is necessary to analyse under what conditions publishers open these articles. Another study (Arrizabalaga et al., 2020) analysed more than 5,600 articles about COVID-19 in PubMed, and although 97% are technically published open, almost 70% of them belong to the OA bronze category, meaning that publishers 'open' COVID-19 publications but without granting them a license to reuse, meaning they can shut off access at the push of a button.

Along with pledges, declarations, statements and particular temporary copyright waiver initiatives, concrete action has been undertaken by United States Trade Representative Ambassador Katherine Tai on the Covid-19 TRIPS Waiver23, announcing the Biden administration's support for waiving IP protections for COVID-19 vaccines. This idea was immediately supported by UNESCO and other countries. The UNESCO's president states: 'The decision of the United States and many other countries to call for the lifting of patent protection for coronavirus vaccines could save millions of lives and serve as a blueprint for the future of scientific cooperation. COVID-19 does not respect borders. No country will be safe until the people of every country have access to the vaccine24'.

The pandemic has opened a confrontation between different human rights, as well as between those who adamantly support IPR in medicines and those who demand access to cheaper drugs to save lives. IP does not exist in isolation but is a crucial element in the human rights acquis. As Robin Ramcharan suggests, there is a direct relationship between IP and human rights (Ramcharan, 2013). IP is a key factor as it modulates access to knowledge essential for human dignity. From an individual perspective, it affects human security, education, health and food; from a collective outlook, it affects the right of nations to develop and corporations to innovate and engage in commerce.

  1. Universal Declaration of Human Rights, GA Res 217 (III) A, UN Doc A/RES/217(III) art 27 (10 December 1948) https://www.un.org/en/universal-declaration-human-rights ↩

  2. https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf ↩

  3. C/2018/2375: http://data.europa.eu/eli/reco/2018/790/oj (replaces recommendation 2012/417/EU ↩

  4. https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=EN ↩

  5. A window is defined as 'that period of time when a distributor or broadcaster is given an exclusive right to exploit a film.' Cfr. p. 95 of https://www.wipo.int/edocs/pubdocs/en/copyright/869/wipo_pub_869.pdf ↩

  6. https://www.ohchr.org/EN/HRBodies/CESCR/Pages/Discussion2018.aspx ↩

  7. https://www.ohchr.org/EN/HRBodies/CESCR/Pages/DraftGeneralComment_Science.aspx ↩

  8. https://www.un.org/sustainabledevelopment/inequality ↩

  9. https://research.un.org/ld.php?content_id=51390330 ↩

  10. A comprehensive list of initiatives and resources regarding Open Science and COVID-19 has been compiled by OECD: https://community.oecd.org/docs/DOC-172520 ↩

  11. https://ec.europa.eu/info/research-and-innovation/research-area/health-research-and-innovation/coronavirus-research-and-innovation/covid-research-manifesto_en ↩

  12. https://www.covid19dataportal.org ↩

  13. https://opencovidpledge.org ↩

  14. https://opencovidpledge.org/licenses ↩

  15. https://en.unesco.org/sites/default/files/joint_appeal_for_open_sciences_fin_en_fin_0.pdf ↩

  16. OECD (May 2020): http://www.oecd.org/coronavirus/policy-responses/why-open-science-is-critical-to-combatting-covid-19-cd6ab2f9/ ↩

  17. UNESCO resources (2020-2021: https://en.unesco.org/covid19/sciencesresponse ↩

  18. Statement of COVID-19 (April 2020): https://twas.org/article/statement-covid-19 ↩

  19. Manifesto for EU COVID research: https://ec.europa.eu/info/research-and-innovation/research-area/health-research-and-innovation/coronavirus-research-and-innovation/covid-research-manifesto_en ↩

  20. https://www.healthdatagateway.org that gathers: datasets, tools, papers and related resources used in health research across the UK. ↩

  21. CORD-19: COVID-19 Open Research Dataset: https://www.semanticscholar.org/cord19 ↩

  22. Examples include: Elsevier's Novel CoronaVirus Information Center https://www.elsevier.com/connect/coronavirus-information-center or Springer-Nature's Coronavirus (COVID-19) Research Highlights https://www.springernature.com/gp/researchers/campaigns/coronavirus ↩

  23. Office of the United States Trade Representative (05/05/2021): https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver ↩

  24. 7 May 2021: https://en.unesco.org/news/unesco-welcomes-move-lift-patent-vaccines-and-pushes-open-science ↩