Science and Technology
In no area of human inquiry is the importance of the public domain as obvious as in science, research and technology. “If I have seen further than others,” Newton famously observed, “it is because I have stood on the shoulders of giants.” And these giants, in most cases, were not ones zealously enforcing intellectual property rights over their work. Yet intellectual property also has a vital role to play in supporting expensive types of research that often would not be carried out but for the profit motive, and in providing the capital necessary to turn good ideas into goods that actually come to market. Recent years have seen a dramatic expansion in intellectual property rights over quite basic scientific discoveries, such as gene sequences, as well as an increased importance for intellectual property protections in academia. How is the Mertonian tradition of free scientific inquiry to be maintained and developed in such a world? Which of the new expansions will in fact encourage the commercializing of good ideas, and which will form a thicket of intellectual property rights in which scientific inquiry will be lost or delayed? Following the lead of Professor Jerome Reichman, a world-renowned expert in this area, the CSPD has made the role of the public domain in science and technology a particular area of interest. Here are some illustrative recent activities in the area.
Conferences and Meetings: Working with Paul Uhlir, Professor Reichman helped to organize the National Academy of Sciences Symposium on "The Role of Scientific and Technical Data in the Public Domain" in September, 2002. The symposium brought together leading experts and managers from the public and private sectors who are involved in the creation, dissemination, and use of scientific and technical information (STI) to discuss: (1) the role, value, and limits of making STI available in the public domain for research and education, (2) the various legal, economic, and technological pressures on the producers of public domain STI, and the potential effects of these pressures on research and education, (3) the existing and proposed approaches for preserving the STI in the public domain or for providing “open access” in the United States, and (4) other important issues in this area that may benefit from further analysis.
Database Studies: In a series of studies, including Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology, 14 Berkeley Tech. L.J. 793 (1999) (with Paul F. Uhlir); Why Science Is Concerned About the Legal Protection of Databases, 1998 AAAS Yearbook on Sci. & Tech. Pol'y 291; Intellectual Property Rights in Data?, 50 Vand. L. Rev. 49 (1997) (with Pamela Samuelson); and The Trend Toward Strengthened Intellectual Property Rights: A Potential Threat to Public Good Uses of Scientific Data, in National Research Council, Bits of Power: Issues in Global Access to Scientific Data 132 (1997) (principal drafter), Professor Reichman has explored the new world of data protection and its impact on science.
Project to Reconstruct the Research Commons: In A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment, Professor Reichman and Paul Uhlir argue that, despite the fact that the system of scientific research is perhaps the main driving force behind international innovation and technical progress, it is complex, rarely charted and poorly understood. They try to map the various zones in the system of scientific innovation, and to explain the norms in each zone -- legal and social -- that facilitate data transfer while providing incentives for innovation. They then turn to the various challenges -- legal, technical and economic -- that recent and continuing transformations of intellectual property law have posed to the free flow of scientific data. They argue that the picture is a sobering one and that many of the more worrying changes have yet to make their full impact known. But their major claim is that if the existing reality and the recent changes to it are both complex and multi-faceted, the solutions to our problems must be complex also. In the final section of this paper, they offer a comprehensive set of responses, both public and private, which aim to preserve, reconstitute and even enlarge the commons of scientific data on which so much of our progress depends. Those responses build on, rather than attempting to outlaw, the technological characteristics of the new medium. Their hope is that digital technologies, contractual conditions and intellectual property reform can be made to work for, rather than against, the future of scientific research.