1. Introduction and objectives¶
Research and innovation (R&I) is crucial to creating a better and healthier society which can take full advantage of the new knowledge economy. Research is becoming increasingly complex, digital, interdisciplinary, data-driven and reliant on large-scale computing capabilities. This new R&I paradigm has given rise to eScience and scientific computing. Likewise, digital technologies, particularly the World-Wide Web, enable a distributed behaviour of collaborative research (David et al., 2006) and the possibility of communicating knowledge immediately, openly and at-scale through the network. By opening up research processes, this new environment 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 Intellectual Property Rights (IPR).
Open Science (OS) is the new paradigm for science and knowledge dissemination (Ardil, 2007; Kunst & Degkwitz, 2019; Smart et al., 2019). 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 R&I 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. One of the debates around Open Science is taking place in the context of discussions about 'the evolving nature of scientific knowledge production regimes with the emergence of other descriptive and prescriptive theories of how the creation of scientific knowledge is changing' (Smart et al., 2019).
A traditional justification for copyrights and patents 'is that incentives and rewards to inventors result in benefits for [...] society' (Chapman, 1998) and are a powerful tool to strengthen science and culture (Bammel, 2014), fostering innovation and societal impact.1 The World Intellectual Property Organization (WIPO) Copyright Treaty (WCT), enacted in 1996, recognised in its preamble the need 'to maintain a balance between the rights of authors and the larger public interest, particularly in education, research and access to information'2. Likewise, in 1999, the UNESCO Declaration of Science and the Use of Scientific Knowledge recognised the need 'to consider the scope, extent and application of intellectual property rights in relation to the equitable production, distribution and use of knowledge'3.
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. For example, the existence of Sci-Hub, which for some researchers is a public good allowing publicly funded research to be made available for free, and for others is no more than pure piracy and infringement of copyright. Sci-Hub is an illegal repository of scientific papers, but it is 'a symptom of many people's frustration with the status quo in academic publishing' as stated by Stephen Curry (Schiermeier, 2017), a reaction to a problem that has to be solved (González-Solar & Fernández-Marcial, 2019) or a wake-up call to show that 'the current intellectual property regime can be made irrelevant' (Lawson, 2017). This tension has also appeared in the wake of the COVID-19 pandemic, where there is a concern that IPR may prevent public access to medicines, particularly vaccines. Governments such as the US, 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 (see Section 2). The recent launch (2021) of the initiative Right to Research in International Copyright Law4 is also evidence of the need of reflections like the one we present here to address the necessary compatibility of some IPRs with OS and OI.
Understanding the relationship between the protection of intangible assets with IPR and knowledge circulation is key to developing sound policies and practical approaches to knowledge valorisation (KV). At the European level, in the last seven to ten years, policies around OS and IPR have been developed by the European Commission (EC) in parallel but not always in confluence. The objective of this report is to produce 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'.
A literature review on the relation between Open Science and IPR protection will help adjust the academic overview of the topic (e.g. main problems, challenges, possible misunderstandings, etc.), both from the perspective of the copyright law and trade-related issues of IPR. To analyse the adaptability and concessions of IP and OS, so as to suggest solutions which strike a balance between openness and reserving some rights, and to highlight mutual benefits that may be useful as a reference for the development of future policies. Therefore, the two key questions that this report aims to answer are the following:
How should the ownership of research results be approached nowadays in an Open Science context?
What amount and type of IPR protection is desirable in the new scientific paradigm of Open Science? Has this concept evolved with the digitalisation and increased mobility of researchers?
Reviewing these questions throughout the current literature will inspire some insight about how Intellectual Property Rights and Open Science can be reconciled, beyond the elementary clash of interests and traditional confrontation. The report will suggest some recommendations to strike a balance between openness and reserving some rights for the benefit of science.
1.1. Scope, methodology and structure¶
For the purpose of this report, we have employed a systematic literature review to analyse the state of the art in Open Science and Intellectual Property Rights. The scientific literature dedicated to the relationship between IPR and OS has been surveyed and synthesised in order to reflect the state of play and the main trends in the topic. Not only scientific papers and scholarly works have been reviewed, but also the main reports, declarations and publications around OS or IPR, particularly in the way that they refer one to another. The information gathered is: critically analysed by identifying gaps, inconsistencies or contradictions in the current system; expanded upon by showing limitations of theories and points of view; and concluded by reviewing areas of controversy and formulating areas for further research. This essay provides clues for future work in OS and IPR, and suggests a constructive analysis of the approaches of other researchers and policymakers.
The scope and specific features of this report are as follows:
This report is conceived as a formal essay which gathers the author's arguments in light of the common current literature on the topic.
It focuses mainly on European trends between 2010 and 2021, without ignoring science's universal characteristics, and so includes, where relevant, comparisons between European and non-European approaches towards IPR and Open Science, as well as from global institutions such as the OECD (Organisation for Economic Co-operation and Development) or UNESCO (United Nations Educational, Scientific and Cultural Organization).
The reviewed literature includes different kinds of information (primary and secondary resources) published in English: first, academic papers and books included in various academic databases of scholarly journals; second, European Directives and Regulations regarding IPR, Open Science/Access/Data; and third, the main policy reports addressing either OS or IPR or both simultaneously.
The adopted methodology includes a systematic literature review, sometimes understood as a meta-analysis on the topic, along with the continuously changing environment for OS and IPR in light of the COVID-19 pandemic. The methodological approach also combines the complementary expertise of the co-authors in a dialectic approach to the topic.
This study undertook multiple steps to address the topic via the literature:
1) Research and selection of information resources and literature (January-February 2021). The initial databases selected to address our search were traditional academic databases such as Scopus, Web of Science, ABInform, JSTOR, but also openly available resources including Google Scholar, Dimensions, LENS, among others to offset the bias of the former. The query was initially 'open science' AND 'intellectual property rights' OR 'IPR', in the Title, Abstract or keywords field. Other combinations of keywords were also used ('open access' OR 'open data' OR 'open source' AND 'Copyright'; 'Open Science' AND 'Trade'; 'Open Innovation' AND 'Open Science', etc. Subsequently, filtering by language of publication (English), and publication year (first timeframe was approximately ten years: 2010-2021). After these iterative searches and subsequent query adjustments, we came up with a comprehensive list of references managed in a Zotero collection.
2) Evaluation and strategy for quality assessment and complementary information. Along with the initial search in scholarly databases, we complemented the overview with other fundamental primary resources such as legislation and main European regulations, EC and other official reports, declarations, etc. as well as significant resources on OS and IRP available through the Web (e.g. (ALLEA, 2020; Barbarossa et al., 2017; EARTO, 2020; Kalff-Lena, 2021; Zacherl & Zatloukal, 2017).
The final comprehensive bibliography in Zotero includes around 500 references with the aim to continue updating it as new contributions are added to the field. However, only several of them are cited in the report. The works cited or reflected in this report were selected on the basis of:
having been published when Open Science and IPR policies were being developed in Europe, with priority given to publications published in the core period between 2015 and 2021;
including a fundamental contribution for the purposes of this study, even when published prior to 2015 or not focused on Europe (e.g., Hess & Ostrom, 2003; UNESCO, 2020).
3) Synthesis review and identification of the building blocks of the report. This step included the classification of the literature around the research questions and topics, managing different categories in the Zotero Collection; and afterwards highlighting the components to be discussed and extracted from the literature, namely: Open Science, Rights, information and digital objects and rights over digital objects, in a common framework of the fundamental rights, which include the 'right to science', and 'science as a commons'.
4) Discussion of topics and consolidating the main elements of the report. This phase included drafting the table of contents, identifying the main issues to be addressed under each section, and reviewing the relevant literature.
5) Reflect the discussion in an essay, and provide recommendations and concluding remarks for the happy coexistence of IPR and Open Science in a new R&I landscape of the European Research Area (ERA) based in a competitive and open scientific paradigm.
The content is structured from the most abstract to the most specific, reflecting different approaches and discussing thereof. After this introductory section, where we discuss the objectives and scope of this report/essay as well as give a general overview of the most current literature on the intersection of OS elements and IP, the essay is composed of six additional sections. We begin by analysing the fundamental 'right to science' and science characteristics, populated with ideas, informal conversations, serendipity, and other actions or facts that belong to the right to research but are not regulated by IPR. This section also reflects the current boost of global support of Open Science resulting from the COVID-19 pandemic, which entails a waiver of IPR and a new revival of the 'right to science' (Section 2). We then analyse the concept and evolution of OS in Europe, along with the main components and challenges and whether they are connected with IPR, based on the reports and literature produced by the EC (Section 3).
After analysing the 'right to science' and the concept and fundamental elements of OS, this essay reviews specific issues related to IPR (Section 4), notably copyright, patents, trademarks and trade secrets, focusing on Europe but also reviewing the historical background and justification of IP in general, and concluding with a global comparison between EU major trends and the US, Israeli and Chinese approaches towards the OS-IPR binomial.
Being aware of the barriers, this report describes the strategies employed to avoid them and to promote openness. As it will be argued, although data is not subject to IPR regulation, databases are, so a different approach should be made to promote openness depending on the underlying object. The experience of the Free Software movement (free in the sense of freedom to exercise activities forbidden by default) will be used as an example in Section 5. This section also reviews other IP-specific issues arising from scientific communication via the Web, like Application Programming Interfaces (APIs), hyperlinks or Text and Data Mining (TDM), as well as the specific case of levies on remunerating IPR.
The traditional tension between openness and closeness will be also explored (Section 6), but with a new approach: 'as open as possible, as closed as necessary'. Open Science could be a completely new paradigm, or just the current expression of an old phenomenon. In order to take into account the current context, this report will delve through the EU initiatives which are being built by developing Open Science-specific infrastructures (such as the European Open Science Cloud, EOSC5, or Open Research Europe, ORE6) in this new reconciliation of openness and closeness.
The report will finish by reviewing the main conclusions and giving recommendations and lessons to put into practice from what has been analysed and reflected throughout this work (Section 7). Finally, a comprehensive list of references cited in the essay are collected at the end of the work. The Annexes include a particularly detailed analysis of some of the important EC documents and publications addressing OS issues and policies, where IPR issues are partially addressed.
1.2. General appraisal of the state of the art¶
There are very few studies, documents, reports and 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.
The first time IPR and OS were clearly addressed jointly in a way comparable to this essay was in the workshop: IPR, Technology Transfer & Open Science: challenges and opportunities, co-organised by the European Commission's JRC (Joint Research Centre) and the DG Research and Innovation in 2017. In the final report, edited by (Barbarossa et al., 2017) there are 3 main conclusions that we adopt here as our 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 July 2020, the European Association of Research and Technology Organisations (EARTO) published a paper claiming a need for a balanced approach between IPR and OS but focused on the policy issues (EARTO, 2020).
The OECD (2015a) has also made a detailed analysis of the implications of OS and IPR, giving a general overview of the international IP regimes that are or may be applicable to the protection of scientific output, pointing to the current European rules and laws (OECD, 2015a, p. 381-383). These outputs include scientific and scholarly publications as well as collections of any type of data. Data and publications can be protected by a number of rights within the category of IP, chiefly copyright and database protection. 'These two rights are granted to their owners without any formality, at the moment an original work or qualifying database is created. Many other rights exist in the area of industrial property, such as trademarks, patents, topographies of integrated circuits, design rights, or protection of plant varieties' (OECD, 2015a).
More recently (23 April 2021), UNESCO organised a meeting on the topic: Towards a Global Consensus on Open Science- Online expert meeting on Open Science and Intellectual Property Rights7 in order to discuss and align both OS and IPR in light of the new global approach to Open Science and Science commons promoted not only in Europe but also by UNESCO at the international level. The UNESCO Draft Recommendation, approved in May 2021, recognises the importance of the existing international frameworks, in particular on IP and protecting the rights of scientists to their scientific productions (UNESCO, 2021)8.
The most frequent studies about IPR and opening scientific knowledge have been devoted to the Copyright and Open Access to research publications (Atkinson et al., 2018; Bammel, 2014; Caso, 2020; Dawson & Yang, 2016; Joo, 2020, 2020; Koutras, 2018, 2020; Scheufen, 2015; Sondervan, 2020; Suber, 2016), currently highlighted again by the Plan S and cOAlitionS Rights Retention Strategy (RRS9). Although the topic of copyright of scientific publications has been explored, there remains a lack of in-depth interdisciplinary analysis into the relationship between authorship and economic rights (Caso, 2020). This report covers the gap of an interdisciplinary analysis between economic rights and authorship (See 4.3), 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.
Since approximately 2015, the study of IPR of scientific outcomes has gained interest, due to the Open Research Data (ORD) initiative and research data infrastructures (mainly the launch of the EOSC, European Open Science Cloud/Commons) and the reusability of publicly funded research data. Open data raises different and fragmented legal issues including copyright, ownership, data protection and privacy, and even human rights challenges (See Section 2) related to COVID-19, and section 5.1.2, on FAIR (open) data). Data ownership is actually an oxymoron (Penev, 2019) because copyright cannot exist over ideas or facts, therefore no data ownership rights exist, however database rights are protected by the sui generis property right or sui generis database right (SGDR) (OECD, 2015a) and copyright in Europe10, as we will analyse in sections 5.1.2. and 5.2.1. The literature reflects this issue regarding databases, but there are very few authors that address the openness of the research data from an IPR perspective (Labastida & Margoni, 2020; Penev, 2019). There are also several works on the limitations on sharing research data in data protection legal issues (Landi et al., 2020; Phillips & Knoppers, 2019) or addressing both legal issues (privacy and IPR) together, as barriers to sharing and making data publicly accessible (Beugelsdijk et al., 2020; Graber-Soudry et al., 2021; Landi et al., 2020; Lipton, 2020; Wessels et al., 2014).
Since law is a discipline with a broad tradition of handbook publication, there are several books addressing the recent challenges in IPR and the digital sphere for knowledge communication, targeting the 21st century as a new landscape for urgent review of IPR and access to knowledge, but not always focusing on Open Science (Beldiman, 2013; Dreyfuss & Pila, 2018; Perry, 2016).
This report reviews the main literature on the topic but also provides an in-depth reflection of the state of the art.
EC Fact Sheet on Societal Impact (2020): https://ec.europa.eu/info/sites/default/files/research_and_innovation/research_by_area/documents/ip_factsheet_societal-impact_lr.pdf ↩
The version used during the elaboration of this report is the final draft sent to the UNESCO member states in March 2021, and the basic document for the discussion at the Intergovernmental meeting of experts (Category II) during 6-7 May and 10-12 May 2021. ↩
https://www.coalition-s.org/rights-retention-strategy. See also 5.1. ↩