Andrés Guadamuz González 1

In recent years, there has been growing interest in the area of open source software (“OSS”) as an alternative economic model.  However, the success of the OSS mindshare and collaborative online experience has wider implications to many other fields of human endeavor than the mere licensing of computer programmes.  There are a growing number of institutions interested in using OSS licensing schemes to distribute creative works and scientific research, and even to publish online journals through open access (“OA”) licenses.  There appears to be growing concern in the scientific community about the trend to fence and protect scientific research through intellectual property, particularly by the abuse of patent applications for biotechnology research.  The OSS experience represents a successful model which demonstrates that IP licenses could eventually be used to protect against the misuse and misappropriation of basic scientific research.  This would be done by translating existing OSS licenses to protect scientific research.  Some efforts are already paying dividends in areas such as scientific publishing, evidenced by the growing number of OA journals.  However, the process of translating software licenses to areas other than publishing has been more difficult.  OSS and OA licenses work best with works subject to copyright protection because copyright subsists in an original work as soon as it is created.  However, it has been more difficult to generate a license that covers patented works because patents are only awarded through a lengthy application and registration process.  If the open science experiment is to work, it needs the intervention of the legal community to draft new licenses that may apply to scientific research.  This article will look at the issue of such OA licenses, paying special care as to how the system can best be exported to scientific research based on OSS and OA ideals.

I. Introduction

Recent years have witnessed an increase in the quantity and quality of studies dedicated to the economics of research and development for science and technology,2 with particular interest paid to the economic study of the impact of intellectual property rights in the fostering of innovation.3  Intellectual property (“IP”) has been considered one of the most important drivers of new innovation in science and technology because it allows researchers, institutions, and inventors to recover their investment in the shape of limited monopolies to their ideas.4  However, some authors have raised concerns that enhanced intellectual property protection may actually have adverse effects in the development of future research.5  Basic research had usually not been considered to be subject to protection, and up until recently it was generally offered to the public in the shape of peer-reviewed journals.  However, there is a growing trend towards excessive commercialisation and protection of scientific data, as illustrated in the case of the growing protection of the human genome.6

Because access to scientific data has become a requisite of modern research and development (“R&D”), there is growing concern that the trend towards commercialisation will translate into less available public academic research, which would therefore reduce the overall scientific output.  These worries have prompted several studies and reports that attempt to address the problem of the dissemination of academic scientific research.7  The area of biotechnology has been deemed to be of particular concern because of its significant economic potential; therefore, it has been the subject of a patenting rush of unprecedented proportions.8  This phenomenon has prompted the release of genetic information into the public domain, which has also prompted fears of the misuse of the publicly available data by unscrupulous users, who will use this information to close and commodify research through excessively general patents.

These problems have motivated some to call for the devising and utilisation of new ways of protecting basic scientific research from potentially damaging commodification of knowledge.9  One proposed solution is to use the novel intellectual property licensing model that has been successful in software development, generally known as OSS.  This system uses intellectual property protection to ensure the wider dissemination of software, by maintaining the copyright protection over a work, and then distributing it using a license that allows further copying and redistribution of the work, ensuring that the wider community will have access to the software's source code and allow its modification and dissemination.  There are several open source and free software licensing models, but the common denominator in most of them is to allow access to the source code and to allow users to disseminate the code without restrictions.10

It is with regards to scientific research and innovation that the possibility of translating some of these open source models to the scientific research arena comes into play.  The initial application of open source has been in the adoption of a scientific publishing model often referred to as OA.  The OA movement can best be exemplified by the publication of scientific outputs and other materials online.11  These results are offered online without subscription charges, allowing the wider scientific community access to high-quality content with the click of a button.  However, open access is not enough to ensure access to scientific works because OA generally covers only those materials that are subject to copyright protection, such as journal articles.  If scientists want to distribute their works using the open source model, then there would need to be some sort of license that allows the distribution of patented works, or works contained in scientific databases.

The solution would appear to be a simple matter of translating existing licenses to protect patented research, but this has proven to be much harder than previously expected.12  It is very interesting that while there are new OA and open source licenses created every day, an open science license that protects research through patents and database rights has been slow in the making, despite the obvious enthusiasm from commentators, and extensive political will to generate such a license.13

There are many reasons for the difficulties encountered.  Some have pointed out that the open source model does not work best with patented works,14 because the model appears to be in conflict with the public interest justifications for patents, which imply that inventors are expected to recoup the investment they have incurred.  It has also been remarked that the open source model works best with copyright works because they protect creations that are immediately awarded protection, while patented research requires a specific application to the research, making its dissemination through open licenses a more difficult endeavor.

The present article tries to respond and contribute to these developments by examining of the existing scheme to determine the efficacy of the movement and its application to all sorts of scientific research outputs.  Then, the paper will present a suggestion for a new licensing model for patentable scientific research that allows access and dissemination to diverse fields of endeavor.