Recommendations for addressing Intellectual Property Rights by analysing social and legal challenges and implications related to Open Science
These recommendations are based on the results of one of the ROSiE project work packages aimed at mapping, analysing and addressing social and legal implications and challenges related to Open Science in the context of research ethics and research integrity.
The recommendations Addressing Intellectual Property Rights is based on a non-systematic literature review of scientific literature and primary legislative resources, declarations, recommendations, statements and policy documents The resources were complemented by the findings of relevant EU funded projects, the ROSiE project deliverables and working documents. The critical analysis was aimed at the identification of the main challenges, inconsistencies, and contradictions in the current systems of Open Science practice and Intellectual Property Rights (IPRs) regimes using the constructivist framework.
Addressing Intellectual Property Rights
- Develop balanced policies at European, national and institutional levels. The Open Science and IPRs frameworks are both very complex systems, therefore, balancing and managing their interactions require a very holistic approach, which is still missing. However, more emphasis should be put on clarifying their synergies and ways of co-existenceexistence, instead of engaging with radical approaches, as the IPRs play a significant role in securing a valid and very diverse range of rights of authors and inventors, and in setting balanced accessibility, protection and dissemination rules for over a century. Of course, the rapid technological progress is challenging the existing IP system, nevertheless, there are significant legislative efforts on international and national levels to progressively develop models for securing this alignment.
- Promote IPR tools to facilitate, regulate and secure the responsible uptake of Open Science. Correctly used IPRs are essential mechanisms for introducing, implementing and strengthening the responsible practice of Open Science. They safeguard not only the valid interests of individuals and groups but also the privacy and security of parties involved, legitimate private and commercial interests and the global EU, national and institutional competitiveness competitiveness.
- Foster stronger harmonization of IPRs on the EU level. Drawing on projects like the Wittem Group’s European Copyright Code, a stronger initiative on the EU level to harmonize existing, diverse IP related national legislations should be fostered. An EU regulatory and policy framework will enable more concise and standardized protection and will secure the alignment of the IPRs with the ongoing, rapid technological processes, including emerging Artificial Intelligence technologies. This, in turn, will foster a better and clearer understanding of the complex and diverse IPRs tools and mechanisms and will facilitate the development of easy to implement strategies for sharing, communicating, disseminating and reuse of copyrighted works. Special emphasis should be paid to copyright harmonization, as a highly relevant part of the IPR system for all scientific, research, academic and creative outputs.
- Introduce Open Science perspective to the existing informational and administrative bodies. Some successful initiatives on the EU level in providing information, support, training and advising on IPRs related issues to all interested parties are already ongoing (i.e., the European IP Helpdesk Furthermore, the unitary patent, which is fostering and boosting technology development and industry uptake in innovation at the EU level, has proved to be a feasible and implementable tool for a number of countries, for reducing legal and ad ministrative complexity and lowering costs. Introducing a focus on (responsible) Open Science practices and IPRs within the already existing structures could be the first step in developing some more specialized structures in the future.
- Strengthen basic education and knowledge of available forms of IPRs. Although researchers are already heavily overloaded with multiple tasks and different trainings in additional skills, some basic knowledge of related IPRs (with an emphasis on discipline related types and forms of protection, not only on copyright) is very much needed, when taking into consideration research activities in the virtual/digital realm, and more specifically within the Open Science framework. Topics to be addressed are essentially related to definitions of work and author, economic and moral rights and their transferability (within the continental IPRs context), types of protection (copyright, patents, contracts, licenses, trademarks, trade secrets, etc.) and their duration.
- Mainstream the use of existing best practices and tools. Data management plans should be mainstreamed, with some accompanying sets of examples and best practices, and – ideally – templates and checklists, in an online, freely accessible format, for uploading and adjustments, with a discipline sensitive approach. Additional attention should be given to the recognition of discipline-relevant-open-source software.
- Introduce FAIR principles to not publicly funded research. Open Science rigour in research processes and management of results in publicly funded projects is already introduced by some of the major funders in Europe (including the European Commission). In the interest of society and the research system, some minimum standards should be negotiated with private funders as – ideally – a more balanced approach should be established. Results of the privately funded research should also contribute to the research system itself and build societal trust in science and be scrutinized by the general public. Allowing significant divergences in the Open Science related practices of data and research result dissemination, sharing, reproduction etc., might create a serious disadvantage to publicly funded research in terms of economic rights and protection.
- Consider costs and environmental challenges develop a Roadmap for long term data storage and curation, based on a Cost-Benefit Analysis. Managing, storing and curating data for long term periods is very costly and resource heavy. A proper analysis to mitigate this extensive spendings, in the current situation and the ongoing environmental challenges, should be carefully developed. These investments have to be properly recognized at institutional, national and EU levels. Duplicating efforts should be avoided, therefore, an EU-coordinated initiative and standards on responsible, long term data storage and curation are needed, to holistically and strategically align the efforts between member states and globally.
- Strengthen the reach, efficiency and more user-oriented approach of the European Open Science Cloud initiatives. To efficiently manage and store data, it is necessary to assess its quality. Resources need to be made available on a continuous basis to ensure data quality because responsible data sharing presupposes that data meet high-quality standards. With many valuable ongoing initiatives, special attention should be given to the meaningful and community-driven strengthening of the European Open Science Cloud on the managerial and project-based levels. Its core values and mission should be mainstreamed, by securing a wider re opening to end-users, a broader, community-based stakeholders’ approach, and more user-friendly, discipline-tailored solutions. As the recent operational framework ends in 2027, a lessons-learned approach in shaping the future of the European Open Science Cloud, as a legal entity and its actions, should be strategically conceptualized.
 See: Bacchi, C. and Goodwin, S. 2016. Post structural Policy Analysis: A Guide to Practice. NY: Palgrave Macmillan.
 See: Cueva J. and Méndez, E , 2022. Open science and intellectual property rights. How can they better interact?: state of the art and reflections’, 2022, Directorate General for Research and Innovation, Prosperity Directorate, https://ec.europa.eu/info/publications/open-science-and-intellectual-property-rights_en.
 See EARTO Paper: Towards a Balanced Approach Between IPRs and Open Science (July 2020), p.7: ‘an unbalanced one size fits all European Open Science policy where the concept of Open Science is still too often associated with ‘free of charge access for all’ would be highly detrimental to European RD&I ecosystem and to the research system itself’. July 2020, accessed online on 7.6 .2023: https://www.earto.eu/earto-paper-towards-a-balanced-approach-between-iprs-and-open-science-policy
 See the full text of the ‘Europe an Copyright Code’ by Wittem group: https://www.ivir.nl/copyrightcode/ecc-pdf/ For information on the initiative see: https://www.ivir.nl/copyrightcode/introduction/
 European IP Helpdesk: https://intellectual-property-helpdesk.ec.europa.eu/regional-helpdesks/european-ip-helpdesk_en.
 See: https://www.epo.org/applying/european/unitary/unitary-patent.html
 As suggested in the report of Javier de la Cueva and Eva Méndez on ‘Open science and intellectual property rights. How can they better interact?: state of the art and reflections’ (p.94). https://ec.europa.eu/info/publications/open-science-and-intellectual-property-rights_en.
 See: The initiative Plan S www.coalition-s.org
This passage is part of D2.3 Recommendations for addressing social challenges in OS written by Heidi Beate Bentzen, Teodora Konach, Signe Mežinska.