Open Science Licenses

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The transfer of Copyleft type licences such as the General Public License, to the field of science is problematic because it does not rely on the copyright regime, but on patent legislation.

This is argued in the review of the issue below.


Open Source and Open Sciences


From the article Intellectual Property and Cyberinfrastructure by Dan L. Burk.

"certain research projects have attempted to generate their own version of “open source patent” licenses (Cockburn, 2005; Rai, 2005). For example, such licenses govern access to the genomic data assembled in the governmentally funded “HapMap Project” which is building an informational haplotype map of human genetic variations. The database is freely available on condition that those accessing the data not file patent applications on information derived from the database, and that those accessing the data share information only with others who have agreed to the same terms. Additionally, users of the database agree that any patents they obtain on uses derived from information in the database will be licensed on terms that allow others continued access to the information. This license is aimed at limiting commercial use of a communal resource, and it incorporates the “viral” features of copyleft licensing.

Copyleft–style licensing has also been applied to physical materials, such as the biological materials made available via the Biological Innovation for Open Society project or “BIOS” (Boettiger and Burk, 2004). The BIOS project is intended to make publicly available certain biological research tools and techniques, and to attract contributions of further research tools. While the project organizers are not adverse to users of these tools filing patents on discoveries made by use of the tools, the intention is to preserve public access to the tools themselves. The danger to such access comes from patenting of improvements or modifications that users might make to the basic tools, encumbering the basic tools with proprietary claims. Internet–based electronic resources offer information about the tools and their use, and facilitate contact for physical transfer of the tools, but physical access is conditioned on agreement not to patent any improvements or modifications to the tools, and to make any such modifications or improvements available on the same terms. No such restrictions are placed upon products or discoveries generated by use of the tools; such products or discoveries can be patented without limitation.

However, it is critical to recognize that such application of the open source copyleft model to research data and other resources contemplates a different intellectual property system — the patent system — than the copyright system in which the licensing scheme was developed. This transfer of the open source “copyleft” model from the legal regime of copyright to that of patent presents several difficulties. As an initial matter, it is worth observing that the “open source” designation is something of a misnomer in the patent context. Patents require as a condition for the grant of exclusive rights a disclosure of the invention sufficient to allow one of skill to make and use the claimed invention. As a practical matter, this disclosure for software this may not always include source code; for biotechnology, the disclosure typically does include macromolecular sequence data. But in either case, the disclosure requirements of patenting should effectuate the goal of the “open source” movement to publish the technical data necessary to allow tinkering, improvement, and critique of the invention.

Thus, at least in theory, the patent system already entails a level of disclosure sufficient to allow the sort of access for tinkering and improvement envisioned by the open source and free software movement. But as a practical matter, such tinkering and improvement of the disclosed invention may be effectively precluded by the exclusive rights conferred under the patent. As mentioned above, some jurisdictions provide little or no room in the patent system for experimental use or reverse engineering. And, even if the details of an invention are already made accessible in the patent, the use of the term “open source” in this context may rather signal a philosophical commitment to “openness” or “free” science paralleling that of the free software movement.

Transfer of the copyleft licensing model to the patent environment also raises legal considerations not present in a copyright environment (Boettiger and Burk, 2004; Feldman, 2005). First, the nature of the exclusive rights — granted by copyright and by patent — are quite different. Copyright excludes unauthorized copying and related activities — activities that are triggered by access to the protected work. Such access serves as the trigger or activating event for the copyleft license — copying or adapting the open source code opens the copyist or adapter to a lawsuit unless the copying or adapting is done in accordance with the terms of the license. But patent rights exclude all uses of the claimed invention, even those conducted independently, without any access to the invention. In such cases, the infringing act would not serve to channel the infringer into compliance with the terms of the license, as there would be no knowledge, let alone manifestation of assent, to the license.

Second, the restrictions on further patenting that are incorporated into some “open biology” licenses may run afoul of the general public policy of the patent system. In the United States particularly, federal statutory and constitutional law encourages patenting, and licenses deterring patents may be preempted. Additionally, and perhaps more seriously, patents raise competition law considerations that are not necessarily present under copyright law. Certain types of patent licensing arrangements are subject to extra antitrust scrutiny, such as patent “pools,” in which participants cross license one another’s patents, patent “grant–backs,” which require licensing of technology developed with a patented tool back to the patent owner, and patent “reach–through,” which requires payment of royalties to a patent owner for products developed with a patented tool. Patenting restrictions in open biology licenses resemble these types of arrangement — for example, requiring products developed with “open source” biology tools to be licensed back to others on an “open source” basis — and so may raise antitrust concerns.

But the greatest obstacle to movement of “copyleft” licenses into electronic research collaborations may be the social disparity between the licenses’ original open source milieu and that of scientific research settings (Burk, 2005a). There are marked differences in the organizational and institutional networks of each community. Despite the some apparent congruence between the normative expectations in each community, academic science as currently practiced, particularly in industrialized nations, has a different and far more complicated profile than that of the open source community. The scientific community is older and more institutionally invested, with a decided organizational structure not present in open source coding.

Despite its profession of “openness,” academic science has an effectively hierarchical organization at the level of individual laboratories, as well as at the level of professional association.

Graduate and undergraduate training in the sciences also contributes a distinct social sub–structure to the scientific community. Additionally, academic science is heavily subsidized by governmental grants, with the result that funding agencies may have interests and involvement in the disposition of intellectual property, both at the level of formal agency objectives and in the biases or preferences of peer review committees. Other formal institutions, such as institutional ethics review boards, university technology transfer offices, and peer–review journal publishers may also play roles not contemplated by the open source licensing system.

Such normative considerations may complicate the development of licenses that would ameliorate the legal conflicts issues in cyberinfrastructure. The success of the copyleft model in software development is due in no small part to strong buttressing of the license by the normative expectations of the community. In the broader scientific context, it is unclear whether the license will have the same status, the same social meaning, and the same success in a different community setting." (