Authored By- Pranjali Joshi
BA.LLB. 2nd year
The demand for intellectual property law arose with the demand of inventors to get control of their work. The authors wanted to capitalize off their work but not without a moral fiber, they also wanted due credit of their work. Decades later, open access arises with the belief to ease the stern control of property protection which limits the access and flow of ideas into the society. Although both of them deal with almost the same subject matter i.e., the, art, science and the literature. The debate however, is on the disparity in the notion that copyright and patent can plug the scope of further scientific research in academic institutions and may reduce the quality of the research subsequently resulting in sub-par publications. The economic dilemma is weather there is a need to safeguard OA with the expansion of the subject matter of IP & increased patents grants.
Key words: – OA- Open access, IP- Intellectual property, IPR, Budapest open access initiatives
Overview of Intellectual property law
One of the main theories for giving legal effect to IP is the utilitarian idea of the “greatest good for greater number of people” (Wilkof, Theories of intellectual property: Is it worth the effort?, 2014)& the owner gets control of his property subject to public interest. While the patent and copyright law protect the work, trademark law protects symbols of enterprises.[i] The term of copyright or the patent law is not kept infinite but some definite number of years because the dissemination of information is necessary in an epoch for research, artistic and creative endeavors and for operating business which ultimately benefits the society. Under patent law, novel and non-obvious inventions that are useful is eligible for protection while the common discoveries are not. Patents are not granted for- Plants, Process for the medicinal, surgical, curative, prophylactic diagnostic, therapeutic treatment of human beings, a method of agriculture or horticulture; a mathematical or business method or a computer program per se or algorithms; a presentation of information; topography of integrated circuits; an invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components. (Indian Patents Act)
In spite of strict provision to obtain patents, International patent applications filed via the PCT grew by 5.2% (265,800 applications) in 2019, while international trademark applications via the Madrid System for the International Registration of Marks increased by 5.7% (64,400 applications). (China Becomes Top Filer of International Patents in 2019 Amid Robust Growth for WIPO’s IP Services, Treaties and Finances, 2020) Protection for industrial designs via the Hague System for the International Registration of Industrial Designs saw a 10.4% growth (21,807 designs), capping another record-setting year for WIPO’s global IP services[ii] The statistics proves that obtaining patents has become easy and hassle-free throughout the world. Although this is a source of rejoice that our generation is inventing more and more leading us to the path of technologically advanced future but this poses a severe threat to OA. With the increase in the number of patent applications, the probability of new ventures for non-profit motives increases along with the increase in commercialization with more stricter measures to provide access to information.
In the case of copyright law, the protection is given to the expression of the idea underlying in a work and not just the idea, this doctrine is known as idea-expression dichotomy. Copyright law also resist grant of protection to Processes, Systems, Choreographic Works, Methods of construction, Expressions or Fashion. [iii]The problem with the copyright law is it covers everything from literary, dramatic or cinematographic work to groundbreaking research. While making and profiting is great for literary/ dramatic works it’s an all together different thing for R&D ventures. The latter requires huge investment, latest technology, up-to-date infrastructure which may not be able to bear even the base costs. Therefore, OA based research may not sustain itself without the funding by governments or imperial institutions.
Overview of Open access initiatives
The idea and practice of providing free access initiated by Budapest open access initiative 2002, Bethesda statement on open access publishing 2003 and Berlin declaration on open access to knowledge in the science and humanities 2003. The target was to provide unrestricted availability of research and literature which is called open access. It allows users to read, download, copy, distribute, print, search, pass them as data to software, or use them for any other lawful purpose without financial or legal liability. There are several types of colored OA. Hybrid OA journal are a mixture of gold and green, they provide OA access to some specific articles while charge subscription to access others. Publishers double dip by increasing the APC while the subscription rate remains the same. Bronze open access let users read articles free of cost but they lack licensed papers. Such articles may not be available for reuse. Diamond/ platinum OA Journals don’t charge any publication fee nor publication fee.
Today the subscription of the journals is so inflated that only well-to-do households can afford them. From 1986 to 2006, the average journal cost increased by 180% while the consumer price index rose by 84%. [iv]Which means an aggressive serials crisis. With the increasing cost of journals and libraries becoming unsustainable in giving access to subscription OA directories is the best alternative. Some institutions mandate obligatory publication in OA. National Institute of health which the first institution to mandate compliance has set precedence with 75% compliance rate. European Commission is another such ideal, which mandates publication in humanities in every 12 months. [v]India has also launched it’s first preprint repository service called IndiaRxiv which is a major leap in OA in country. (India launches its own preprint repository to improve the quality of science, 2019)
The conflict between IP and open access
Since IP has characteristics of both positive and negative rights i.e., it preventing others from copying the author’s work and gives exclusive right of ownership of work. Open access is the movement to allow, use and copy the work of the original author. The authors of the preprint holding the copyright to them can either post his work in OA repository know as self-archiving or the author can send the preprint to a journal which may or may not make the post print openly accessible. The journal may or may not charge APC. When the journal charges APC they get CC license. As the author transfers his work to the journal, the author of the work has given license to the journal to hold the distribution and reproductive rights subject to proper attribution of authorship. If the permission to publish is denied then the author can post his work in archive list of corrigenda or the publisher can post the work in list of errata. The journals providing free access to scholarly work are funded by government agencies, academic institutions, philanthropists or by advertising products and businesses. These journals generate revenue through membership, premium subscription, donations, subsidy etc. while others may rely on volunteerism. As for authors, the waiving of their rights isn’t gratis. Most authors posting in OA repositories don’t do it for profit motives but for other benefits. Research and cost of publication are funded by academic institutions or governments. The articles posted in OA has higher citation and visibility. They are available for wider mass of population with no competition and affordable publishing rate.
The Need for fine balance
Several concerns raised by scholar lies among other problems, the partnership between government, industry, and academia may have the unintended consequence of impeding the flow of information among researchers. Organization sponsoring the research may tamper with the data and skew them in their favor. Moreover, limited familiarly with the concept of copyright or the concerns for widespread copyright violations and poor infrastructure or lack of proper facilities as publishing needs high bandwidth internet connection can be frightening for authors. It has also been seen that research in smaller institutions drive plagiarism concerns in higher institutions. In OA Software’s, the programmers can easily change the software, what it does, how it looks. For exactly the same reason, software developed by the companies or individuals are copyrighted or used with close-access. They are kept a secret, and is kept under tight control by the companies producing them.
Failure to provide protection to intellectual property may negatively impact the business and investment. Opposite of which is private ownership of ideas and information which can make market competitive with inflated prices and difficult access to science and literature. The creator or owner of intellectual property can restrict or charge exorbitantly high fee for its use, IP also has a potential of monopolizing a sector. Over bearing IP may induce competition in the business and markets. However, for the legislators, the goal has been to provide enough legal protection to maximize incentives to encourage creative works, to ease free flow of ideas and to minimize market competitiveness. Several rules and doctrine such as Right of integrity, Moral right, fair use doctrine etc. embodies these sentiments. Ignoring this balancing concept can either lead to over-protection or under-protection of intellectual property.
In a closed association where external actors are not welcomed with open arms, as they could be a competition or a threat to that group, Open access system is a beacon of hope. OA backed research in any country is indispensable for fostering scientific temperament and literary development. Giving access to the public of crucial technology, literature and science boosts technological skills, creativity and individual capacity. Legislators all over the world should strive to give maximum protection of intellectual property of the authors/ inventors without monopolizing industries. Governments should promote fair competition in the market for greater consumer good. While there is a need for intellectual property management contrarily there is a need for University-industry or owner-masses collaboration. The dotted line of balance between the two can be made firm by keeping in mind the sacred principle that goal of any law is to strike a balance between giving maximum liberty to its citizens without infringing upon the rights of others.
[i]Andrew Beckerman-Rodau, ‘The problem with intellectual property rights: subject matter expansion’ (2005) 13 Yale J.L. & Tech
[ii] ‘China Becomes Top Filer of International Patents in 2019 Amid Robust Growth for WIPO’s IP Services, Treaties and Finances’ (2020) <https://www.wipo.int/pressroom/en/articles/2020/article_0005.html> accessed 9 March 2020
[iii] Mahendra Kumar Sunkar, ‘Copyright Law in India’
<http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html> accessed 7 March 2020
[iv] Nirja Shah, ‘The “Balancing Act” of Copyright & Open Access’ (Open Access, 20 July 2016)
China Becomes Top Filer of International Patents in 2019 Amid Robust Growth for WIPO’s IP Services, Treaties and Finances. (2020, April 7). doi:https://www.wipo.int/pressroom/en/articles/2020/article_0005.html#:~:text=International%20patent%20applications%20filed%20via,5.7%25%20(64%2C400%20applications).
India launches its own preprint repository to improve the quality of science. (2019, April 22). doi:https://www.editage.com/insights/india-launches-its-own-preprint-repository-to-improve-the-quality-of-science#:~:text=India%20launches%20its%20own%20preprint%20repository%20to%20improve%20the%20quality%20of%20science,-This%20article%20is&text=Indian%20sci
Wilkof, N. (2014). Theories of intellectual property: Is it worth the effort? Journal of Intellectual Property Law & Practice, Vol. 9(No. 4). doi:https://watermark.silverchair.com/jpu018.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAApwwggKYBgkqhkiG9w0BBwagggKJMIIChQIBADCCAn4GCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMdSau9fmrauv_7ohBAgEQgIICT6bT5N8cXvq88TOIVLsU0jupKVdykiumNxVaR1RaahJHKJ9J