As an IP lawyer involved in several collaborative research projects under the EU’s framework program for research and innovation, I must navigate the complex relationship between intellectual property rights and open science. Today in celebration of International IP Day, I would like to acknowledge the understandings made between private industry and scientific communities, who continue working together to make our lives better through research and innovations.
The COVID-19 pandemic brought significant challenges to the world, but intellectual property rights played a crucial role in overcoming some of these challenges. For instance, pharmaceutical companies and researchers invested significant resources in developing and testing the COVID-19 vaccines. Intellectual property rights provided the legal framework to control access to such solutions, protect their innovations, and recoup their investments to continue the development of new treatments and vaccines. Nevertheless, IP rights also facilitated the execution of open science practices, such as sharing of research data, ICT tools and critical information related to the pandemic through open-access and open-source repositories, hackathons, and collaborative research responsible for several innovative solutions, such as low-cost ventilators, smartphones apps to support elderly and new treatments for other respiratory deceases.
Therefore, IPRs and open science are not necessarily in conflict with each other. Instead, they are two complementary approaches to advancing scientific discovery and innovation. In EU collaborative research framework, the Consortium Agreement of each collaborative project should be the main legal instrument to define the borders of open science practices without jeopardising the commercialisation of project results and further incentives for new R&D initiatives.
Accordingly, IP rights and Open Science practices are balanced through the negotiation of access rights on intellectual property rights. IP Rights, such as patents, industrial designs and even trademarks, can promote open science by providing the legal framework (e.g. ownership claims, jurisdiction, time of protection) for licensing and sharing of background products and data as well as project results for greater knowledge sharing, collaboration, and innovation, as it enables individuals and companies to work together with clear access rules towards a common goal.
In turn, Open Access publishing, as an Open Science practices, can increase the reach of research findings, making them more visible and accessible to other researchers and potential users. This can lead to increased citations, recognition, and commercialisation opportunities for inventors and creators. Open Access dissemination of generated research data is now compulsory in Horizon Europe projects. Such data shall be published under the latest available version of the Creative Commons Attribution International Public License (CC BY) or Creative Commons Public Domain Dedication (CC 0) or a licence with equivalent rights, following the principle ‘as open as possible as closed as necessary’, in a trusted repository of the European Open Science Cloud and in compliance with FAIR guiding principles. The EOSC aims to simplify and maximise access to research data not just for researchers but also for the development of new products and services.
Therefore, by finding a balance between the exclusive rights on intellectual property and open science practices, we can foster a collaborative and innovative research ecosystem that benefits everyone.
Author: Juan Luis Rodrigues, LLM, Senior IP Consultant, RTDS
Date: 26th April 2023
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