Science Commons is a new project of Creative Commons and will launch early 2005.
The mission of Science Commons is to encourage scientific innovation by making it easier for scientists, universities, and industries to use literature, data, and other scientific intellectual property and to share their knowledge with others. Science Commons works within current copyright and patent law to promote legal and technical mechanisms that remove barriers to sharing.
The sciences depend on access to and use of factual data. Powered by developments in electronic storage and computational capability, scientific inquiry is becoming more data-intensive in almost every discipline. Whether the field is meteorology, genomics, medicine, or high-energy physics, research depends on the availability of multiple databases, from multiple public and private sources, and their openness to easy recombination, search and processing.
The American Traditions
In the United States, this process has traditionally been supported by a series of policies, laws, and practices that were largely invisible even to those who worked in the sciences themselves.
First, American intellectual property law (and, until recently, the law of most developed countries) did not allow for intellectual property protection of "raw facts." One could patent the mousetrap, not the data on the behavior of mice, or the tensile strength of steel. A scientific article could be copyrighted. The data on which it rested could not be. Commercial proprietary ownership was to be limited to a stage close to the point where a finished product entered the marketplace. The data upstream remained for all the world to use.
Second, US law mandated that even those federal government works that could be copyrighted, fell immediately into the public domain – a provision of great importance given massive governmental involvement in scientific research. More broadly, the practice in federally funded scientific research was to encourage the widespread dissemination of data at or below cost in the belief that, like the interstate system, this provision of a public good would yield incalculable economic benefits.
Third, in the sciences themselves, and particularly in the universities, a strong sociological tradition – sometimes called the Mertonian tradition of open science – discouraged the proprietary exploitation of data (as opposed to inventions derived from data) and required as a condition of publication the availability of the datasets on which the work was based.
Innovation in Technology and Legal Friction
Each of these three central tenets evolved from concepts that existed even before the Industrial Revolution–at the innately slow rate of change of the legal system. Similarly, scientific publication has a long-standing tradition. Modern technologies, especially the evolving use of the World Wide Web as a library, have forever changed the mechanisms for delivery and replication of documents. In many fields, results are published nearly as quickly as they are found. But copyright law has evolved at a different rate. Progress in modern technology combined with a legal system designed for a different technology-based environment is now leading to some unintended consequences. One of these is a kind of legal "friction" that hinders reuse of scientific discoveries and could lead to discouraging innovation.
To counterbalance, a large and vibrant community has joined together in support of the concept of Open Access for scientific literature – "digital, online, free of charge, and free of most copyright and licensing restrictions". The U.S. National Institutes of Health have proposed mandated Open Access to all NIH-funded research starting six months after the print date, and there is support for the initiative in the U.S. Congress. Most major journals have granted authors the right to self-publish versions of their peer-reviewed papers. But the legal questions – how can an author make her work available to the public, while taking comfort that she retains some rights to it – have yet to be answered.
The different rates of change between modern technology and the law create friction in other places as well. For example, in the genetic realm, patent law has moved perilously close to being an intellectual property right over raw facts – the C’s, G’s A’s and T’s of a particular gene sequence. In other areas, complex contracts of adhesion create de facto intellectual property rights over databases, complete with "reach through agreements" and multiple limitations on use. Legislatively, the US is considering and the EU has adopted a "database right" which actually does accord intellectual property protection to facts – changing one of the most fundamental premises of intellectual property: that one could never own facts, or ideas, only the inventions or expressions yielded by their intersection.
The Federal government’s role is also changing. Under the important and admirable Bayh-Dole statute, federally funded researchers are encouraged to look for potential commercial use of their research. Universities have become partners in developing and reaping the fruits of research. This process has yielded amazing results in many cases by converting raw, basic science into useful products in many industries. But as a consequence, the quest to commercialize has moved upstream in some cases, to the fundamental levels of research and data, and that has created complex legal requirements. While the details can get complex when the intellectual property at hand is a novel "method" for assaying biological activity, there are even more questions about patents covering the genes, proteins and their inferred functions.
The sheer cost in terms of time and money of such complex, multi-party legal work can take intellectual property "out of play" – it is simply more expensive to do the lawyer work than the product might reap on the open markets after the legal work is done. This hinders scientific innovation, as the value of scientific information increases exponentially in connection with other scientific information, and is of the least possible value when segregated by law.
The Search for a Solution
These facts have not gone unnoticed. Numerous scientists have pointed out the irony that, at the historical moment when we have the technologies to permit worldwide availability and distributed processing of scientific data, legal restrictions on transfer make it harder to connect the dots. Learned societies including the National Academies of Sciences, federal granting agencies such as the National Science Foundation, and other groups have all expressed concern about the trends that are developing. Any solution will be need to be as complex as the problem it seeks to solve, which is to say it will be interdisciplinary, multinational, and involve both public and private initiatives.