Intellectual Property in the Context of E-Science
Dan L. Burk
University of California, Irvine School of Law
August 18, 2006
Minnesota Legal Studies Research Paper No. 06-47
"E-science" promises to allow globally distributed collaboration and access to scientific research via computer network. But e-science network development is already encountering difficulty over the intellectual property rights associated with data and networked collaborative activity. Intellectual property regimes are often problematic in the practice of science, as scientific research typically assumes practices of openness that may be hampered or obstructed by intellectual property rights. A considerable literature has developed documenting and analyzing the impact of patents on research in the biomedical area, and the history of recent major scientific initiatives, such as the Human Genome Project, have been punctuated by clashes over the propriety and provision of patent rights in the accumulated data.
These difficulties are likely to be exacerbated in the context of e-science collaboration, where the development and use of intellectual resources will likely be distributed among many researchers in a variety of physical locations, often spanning national boundaries. The institutions that sponsor e-science collaborators may have differing intellectual property policies. Additionally, intellectual property is largely territorial, and the rights conferred under patent or copyright laws are relegated to a single nation. Although international treaties have to some extent harmonized the basic features of intellectual property across many jurisdictions, the subject matter, scope, and requirements for patents and copyrights vary from country to country.
A potential solution to this problem has been developed in the context of "open source" coding projects, where work on software projects is distributed and collaborative, occurring via the Internet or other computer-mediated communications networks. Such projects have employed "copyleft" licenses that attach automatically when the work product of the project is modified. Such licenses are particularly intended to hold the work product "open" to the community by preventing modifications or uses that would allow proprietary claims to the work product of the community.
The value of "openness" and access in the open source community parallels the expressed concerns of scientific researchers over openness and access to collaborative data and discoveries. Consequently, the open source "copyleft" model might seem an attractive mechanism for preserving similar values in e-science. However, such "copyleft" instruments are highly specific to the norms and behavioral expectations of the community in which they were developed. The organizational structure of scientific research may not map cleanly onto the "copyleft" model, and the patent rights implicated by e-science differ from the copyright issues contemplated under "copyleft" licenses. Consequently, a firm understanding of not only the technical structure, but of the social and communicative structure of e-science will be necessary in order to adapt licensing solutions to the practice of e-science.
Number of Pages in PDF File: 23
Keywords: e-Science, cyberinfrastructure, patent, copyright, open source, copyleft, open science
JEL Classification: O31, O33, O34, L32, K12, H54, H42
Date posted: September 12, 2006
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