Can “Science 2.0” learn from developments of the “Web 2.0” regarding Intellectual Property rights, in particular the “open-source movement”?

The diagnosis that intellectual property rights may conflict with norms traditionally associated with science, i.e. the so-called “Mertonian norms”, isn’t new to “science 2.0”, but has already been recognized for “science 1.0”.

In short the argument goes like this: IP rights, with their possibility to exclude others from intellectual content and to license this content for money, give a financial incentive to create new knowledge. Science, in the Mertonian ideal at least, only needs reputation as an incentive. But not only do the incentives clash, but IP rights, through their exclusion effects, stand in direct opposition to some of Merton’s norms, most importantly to what he calls “communalism”. But since we don’t live in an ideal world, we have to accept – for now at least – that there is financial pressure on scientists to capitalize their research.

The question then has to be, which mechanisms can be used to allow for this capitalization of research, while at the same time keeping scientific knowledge open and available to all. One widely used option is the patent, which is also as widely recognized to often be an obstacle to open knowledge. Even though patents at least keep the knowledge in the public sphere (since a patent has to be officially recognized), they hinder the use of that knowledge – a clear violation of the principle of communalism. One aspect that intensifies these conflicts in “science 2.0” is the growing internationality – or globalisation – of scientific research. In other (economic) areas one solution to these problems are contracts, especially formalized contracts between the “producer” and the “user”, i.e. licenses. Using these as a framework, the Open-Source movement (which can be said to struggle with some of the same problems as science) has developed “open-source licenses”, most notably the “Creative Commons” licenses, that even include “Science Commons”. These operate under the so called “copyleft” principle, which means that every new iteration of the data (mostly software-code) has to be made available under the same conditions as the original. There even have been attempts to use some form of open source patenting. The BIOS project (Biological Innovation for Open Society), an effort to provide biological research tools and techniques, for example doesn’t allow patents on these tools themselves, as these are intended to be publicly available, but they are not against patents on discoveries made with their help. But at the moment open source patenting seems to be hindered by many legal problems. But not only legal difficulties may arise if scientists should try to adopt open source ideas and licenses, since it seems that the organizational and social structure of science provides quite a different background than the open source culture does. But this cultural/social/institutional background of science may also be useful, as its own constraints could be used in a more legal context, for example by using exclusion from peer review journals as a penalty for breaches of contract.

Literature:

Burk, D. L.: Intellectual property in the context of e-science, Journal of Computer-Mediated Communication, 12(2), 2007. http://jcmc.indiana.edu/vol12/issue2/burk.html

Eisenberg, R.: Proprietary rights and the norms of science in biotechnology research, Yale Law Journal, 97(2), 1987.

The Royal Society: Keeping science open: the effects of intellectual property policy on the conduct of science, 2003. http://www.royalsoc.ac.uk