September 2021
The recent response of the scientific community to the COVID-19 pandemic has demonstrated very well, how open science can accelerate the achievement of scientific solutions for a global challenge. – UNESCO[1].
This statement by the United Nations Educational, Scientific and Cultural Organization (UNESCO) about how “open science” facilitated the world’s response to a global crisis (the speed at which vaccines were developed) is an important one. Furthermore, the 2019 White Paper on Science, Technology and Innovation (STI)[2] commits the South African government to “open science” and “open innovation” as policy approaches. So it is important to take a closer look at what exactly “open” means, particularly in the context of intellectual property rights and the Intellectual Property Rights from Publicly Financed Research and Development Act (IPR Act).
Clarifying terms
Before we delve into the details, let us start by explaining that “open” relates to the accessibility or sharing of data or knowledge (intellectual property), not to intellectual property (IP) being unprotected, or free of costs or obligations.
The White Paper on STI offers helpful definitions for open science and open innovation.
Open science is “an approach to research based on greater access to public research data enabled by information and communications technology (ICT) tools and platforms, broader collaboration in science – including the participation of non-scientists – and the use of alternative copyright tools for diffusing research results” [emphasis added]. Open science therefore aims for research results (where appropriate) to be accessible for use by a wider range of users (including non-scientists).
Open innovation aims to “introduce more actors into the innovation process so that knowledge can circulate more freely and be transformed into products and services that create new markets, fostering a stronger culture of entrepreneurship …” [emphasis added]. The purpose of open innovation is therefore to expand access to knowledge to include more role players in the innovation value chain, so that marketable products and services are developed and find application in society.
Open science and innovation and IP
[Open innovation] is often best carried out through partnerships. The days of innovating in isolation are over. No one company can be expected to know all the answers.
– Rick Harwig, former Chief Technology Officer of Philips
Open science is about collaboration and partnerships. It aims for increased accessibility and wider participation. For research institutions such as higher education institutions and science councils, open science may present some challenges, but also significant opportunities. It is important that these institutions carefully set out the goals they wish to achieve and put in place the policies necessary to enable success.
Knowledge should be shared, but the results of publicly funded research are not free to all and sundry – intellectual property rights still need to be protected, and obligations still apply. It should be kept in mind that open science and IP rights are not incompatible or mutually exclusive. It is generally accepted that open science is based on the principle of “open as possible, closed as necessary“.
Benefits of open science
There are advantages[3] and disadvantages to the open science and open innovation approach. It could be argued that open access and the use of data free of guidance extends the scope of application of data, promotes cooperation and increases the benefits for the general public. On the other hand, it should be kept in mind that “creations of the mind” (or IP) and its associated rights should be respected and that authors/researchers have a right to protect their IP against use (and misuse).
In light of the benefits associated with open science, and the need to respect IP and IP rights at the same time, numerous institutions and funding entities subscribe to and support the principle of FAIR data, which refers to the findability, accessibility, interoperability, and reusability of data.
Supporting FAIR data principles allows for IP to be appropriately protected before it is made publicly available/licensable. Institutions’ policies and strategies need to balance open science and IP rights, and to consider the fact that different types of research output and IP rights will require different levels of openness and regulatory exclusiveness to protect against the use/misuse of data and information/knowledge.
“Open” and the IPR Act
The object of the IPR Act is to make provision for IP emanating from publicly financed research and development (R&D) to be identified, protected, utilised and commercialised for the benefit of South Africa’s people.[4] This means that IP from publicly funded R&D should first be secured with appropriate IP rights, but also be used and/or commercialised so that these research outputs can have an impact and make a difference in the lives of ordinary citizens.
Offices of technology transfer (OTT) at research institutions are tasked with the management of the institution’s outputs or publicly funded IP. The use and/or commercialisation of publicly funded IP involves IP transactions, some of which require approval from the National Intellectual Property Management Office (NIPMO)[5], especially if the IP is commercialised on a royalty-free basis or assigned/transferred to a third party.
There may be instances where institutions or researchers who used an open licence to further develop IP are subject to the terms of the open licence. However, NIPMO approval is required if the recipient is licensing on a royalty-free for commercialisation purpose[6]. The request for NIPMO approval must be made before the IP is placed in public domain.
Conclusion
Open science, which promotes public access to public research data, and open innovation, which is aimed at fostering a stronger culture of entrepreneurship by introducing more actors into the innovation process so that knowledge can circulate more freely and be transformed into products and services, must adhere to the principle of “as open as possible, as closed as necessary“.
OTTs are putting mechanisms and policies in place to advise and educate researchers on the concepts of open science and innovation. There are many challenges in adopting an “open” approach for public research outputs, but there are also fantastic opportunities to be unpacked.
Individually, we are one drop. Together, we are an ocean.
– Ryunosuke Akutagawa
Dr Elmary Buis
Jetane Charsley
Written by Dr Elmary Buis and Jetane Charsley
[1] https://en.unesco.org/science-sustainable-future/open-science
[2] https://www.gov.za/documents/white-paper-science-technology-and-innovation-1-mar-2019-0000
[3] http://www.researchsupport.uct.ac.za/why-open-science
[4] Section 2(1) of the IPR Act.
[6] NIPMO Interpretation Note 2: Intellectual Property Transaction Approvals
