From Open Access to Open Science; as open as possible as closed as necessary?

The Commission Report on Open Science and Intellectual Property Rights was published in April 2022 (read it here). According to the Commission, this report provides a critical analysis of the literature on the relation between Open Science (OS) and IPR protection and how they might live harmoniously, by scoping the statement ‘as open as possible, as closed as necessary’.

The report includes several ”interesting” not to say rather ”peculiar” statements. It contains first a set of findings, I have chosen the most important ones here:

There is an epistemic blindness regarding the existence of free IP works. This leads to the absence of analysis and data about the wealth they represent and produce. The status of the internet as a free IP work composed of the set of more than 9 000 requests for comments is simply ignored by the literature.

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 of the author must be proactive.

Under international treaties and legislation, it is not possible to create an autonomous scientific author whose works would merit different IP conditions from the ‘all rights reserved’ default rule. Exceptions related to scientific IPR should be legally maximised, avoiding as far as possible the risk of legal proceedings.

The report continues with a set of recommendations. I will not list all of them here, but chose to reproduce the most interesting ones:

Basic science should be promoted on account of its essential importance for applied science. Evaluation of basic science through IPR (copyright or patents) indicators should be further analysed. Awareness of the value of basic science and free intellectual works needs to be raised, taking the request for comments model as an example. The more basic science and the more requests for comments, the more opportunities for small and medium-sized enterprises to build on free components and appropriate the results. Special attention must be paid to avoiding appropriation of the basic science and the IP under free licences. – The right of an author to provide for the openness of his or her work must receive from the EU and the Member States the same support as the right of an author to keep his or her intellectual work closed. Authors of free works should be treated at least equally to authors of closed works.

An Office for Free Intellectual Property Rights and Open Science should be created. This office can be inspired by the functioning of the Office for Harmonization in the Internal Market and the European Observatory on Infringements of Intellectual Property Rights (EU 386/2012) and should be aligned with the EU IP action plan. 

As an IP expert I find part of these recommendations rather radical. On the one hand, it is obvious that the report is written under an anti-IP tone, in which it seems that the existence and role of the IP system is rather marginalized. I usually do not mind when the IP system is criticized, assuring its future strength must presuppose shedding light to its weaknesses. What I find surprising though, is that this report is drafted by the Commission. And yet, it includes a strong critique to the way the IP system works (which I am not persuaded it is 100% fair), and proposes recommendations that seem (at least) rather unrealistic. There is no doubt that Open Science is a major policy objective in the EU, and that there is a non-negligible interplay with the IPR system, that needs to be investigated and clarified but this must be done on a concrete and more hands-one basis. Some days ago the Stockholm IP Law Review organized a conference on the subject. If you are interested you can find the recording here!