The Replication Crisis and IP Law: A Novel Policy Tool For Open Science

Abstract

In recent years, the scientific community has faced a considerable problem — the replication crisis. Replication is the process of verifying scientific findings by repeating a published study. It is considered a cornerstone of the scientific enterprise, contributing to the credibility of research findings. Over the past two decades, however, replication has become increasingly difficult; in fact, in some disciplines the non-replicability rate is over 50%. A major factor accounting for this is diminished access to research materials required for replication (replication materials). This problem is particularly acute in computational studies, where the code, software documentation, datasets, and other information are often not shared.

In this Article, we address the replication crisis from the perspective of intellectual property (IP) law. Our goal is twofold: first, to investigate the extent to which IP law plays a part in impeding access to replication materials; and second, to explore potential solutions that could minimize this detrimental effect. One branch of IP law that has been identified by scholars as having a potential adverse effect on the ability to conduct replication studies is copyright law. This Article, however, shows that the impact of copyright law is likely minor, whereas other IP regimes — patent and trade secret law — have a greater impact in this domain. We find that a major reason for scientists to avoid sharing replication materials is the fear that doing so will compromise their ability to secure patent and trade secret protection.

As a solution, this Article proposes the Conditional-Access-Agreement (CAA) — a novel policy tool that establishes a private and controlled channel of communication between authors and replicators. Authors would be able to provide access to replication materials on demand, through this channel, for the exclusive purpose of conducting replication studies. The CAA mechanism provides a win-win solution: facilitating access to replication materials without jeopardizing scientists’ chances of obtaining IP protection.

Keywords: patents, trade secrets, copyright, open science, replicability, replication crisis, replicability crisis, reproducibility, novelty, fair use, scientific journals, computational studies