Striking A Balance Between IP Rights And Open Access Initiatives

February 27, 2023
- Patent Prosecution

Traditional IP Rights are designed to protect the intellectual work of the inventor by giving them an exclusive monopoly over their invention for a limited period of time. This, as opposed to open access, makes all information accessible to the public to be freely used in any manner. While the traditional system has sustained worldwide for decades, the recent global pandemic has raised questions about its efficacy v/s the open access arrangement. Given that the two are diametrically opposite to each other in their core philosophy, how does one reach a stage of equilibrium between the two?

Intellectual Property Rights

IP rights are exclusive rights granted to individuals over the creation of their minds. These rights are intangible assets that are owned by a company or individual and cannot be used or implemented without their consent. In case a third party infringes on these rights, they may face legal action. Following are the types of IP rights available:

Patents: Patents are granted by an assigned government agency like the U.S. Patent and Trademark Office (USPTO) for a design, process, improvement, or product that is considered novel and non-obvious. Patents offer powerful protection to companies over their invention. The reason companies want to acquire patents is for the commercial benefits it entails. A patented technology can be sold, licensed, as well as commercialized in order to make profits.
Copyrights: Copyrights protect literary and artistic works like books, musical compositions, sculptures, paintings, computer programs, films, etc. Copyrights last for a minimum period of 50 years, after the death of the creator. They are a means of protecting the rights of the creator from being copied, diluted, or misused. Copyrights are also a means of encouragement to the artist.
Trademarks: The symbols, words, or designs used by a business are awarded protection with trademarks. It refers to a recognizable insignia that is unique to a brand and separates it from others. The logos and symbols of a company help in distinguishing it from competitors and building a brand name in the market.
Trade Secrets: Trade secrets are any practice or process by a company that is not public knowledge and provides some economic advantage to the company. They are not granted by any agency and must be protected by the company through non-disclosure agreements (NDAs).

Open Source & Open Access Resources

Open access initiatives involve sharing research outputs and other information with the general public free of charge and without any other barriers. The owners of the works retain the copyrights but make them available freely. The Budapest Open Access Initiative, Creative Commons, etc., are some examples of open access initiatives worldwide. While the former makes research material accessible, the latter provides licenses for copyrighted works. Open-source initiatives rely on public funding, subsidies, etc. for generating revenue.

The principle behind this movement is that licenses must not discriminate against anyone and that everyone must have access to knowledge without barriers. This overcoming of legal restrictions and sharing of knowledge is believed to be key in addressing global concerns. This initiative encourages the sharing and distribution of information that can be used to create a level playing field.

Creating Common Ground

As discussed above, IPR is the means to monetize an invention and earn profits for the business, which is their prime motive. So why would businesses/individuals invest their time and money without the hope for any returns? Is it even possible to strike a balance between the contradictory principles of IP and open access initiatives?

Considering the interdependent world we are a part of, it may be feasible to see a convergence of the two in the future. An example of such a union was seen recently in the Open COVID Pledge. This pledge inspires people and organizations to make their Intellectual Property, like patents and copyrights, open and accessible to the public in order to fight the pandemic.

It was initiated by a group of researchers, lawyers, scientists, and academicians for the rapid development, deployment, and distribution of diagnostics, vaccines, therapeutics, medical equipment, and software solutions that could help during the crisis.

Touchless password authentication, access to healthcare data, and 3D-printed respirators were some of the innovations that companies had pledged to the initiative. It allows people to grant three types of licenses, which includes an “open COVID license” that expires in due course.

Such pledges may help companies build trust and favorability with the consumer which could translate into commercial gains. It increases their credibility and goodwill in the market as well. On the other hand, there are compliance and license restriction issues to be considered once the situation has resumed to normal. This has prevented many pharma and medical companies from joining the initiative.

Conclusion

Can the open-source model emerge as an alternative to IPR in the near future? It is tough to answer that, but the winds of change are blowing. It has seen some success in the software industry where the ability to make codes of software programs open to all has encouraged collaborative creativity. It offers a solution to the limitations of IPR, namely, access and creativity management. It builds a unique ecosystem where everyone, and the world at large, benefit from common ideas. It remains to be seen if IPR and Open source can merge their USPs in a manner that delivers an advantageous outcome for all the involved parties.

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