Understanding the Intersection of Traditional Intellectual Property Rights and Open Access Initiatives

Traditional Intellectual Property Rights

Why would one choose to protect intellectual property (IP) from which one could potentially profit over making it freely available? Are there any types of IP that should be more widely available? These are complex questions that are still being explored and debated as our innovation economy and information sharing capacity evolve at a rapid pace.

Traditional IP Rights

Traditional intellectual property rights are granted for mental creations such as inventions and artistic works. These rights, which are mostly found in the form of patents, copyrights, trademarks, and trade secrets, are supported by a legal framework that grants the owner a limited monopoly over a specific creation for a limited time. IP can be found almost anywhere and is critical for economic growth in industries such as entertainment, publishing, pharmaceuticals, consumer electronics, and apparel, to name a few.

  • Patents Typically, parties seeking legal protection for intellectual property (IP) do so for commercial reasons. Patents establish a framework for sharing protected work while retaining commercial benefits such as product sales and licensing royalties. An individual inventor, for example, may patent a medical device and then sell that innovation to a large corporation. Often, the corporation can mass-produce the device at a lower cost, resulting in a lower cost to the consumer. It is a ‘win-win-win’ situation for the patent owner, who profits from the invention, the corporation that sells the device to the consumer, and the consumer, who can buy the device at a lower cost.
  • Copyrights Creative individuals who want to protect their works, such as songs, literary works, movies, and computer software, frequently benefit from intellectual property protection. Most of these works are presented to the public in the hope of gaining commercial benefit; however, without copyright protection, the product could be diluted, copied, and misused without compensation to the original creator.
  • Trademarks Businesses that use a specific word, symbol, or design to identify their products benefit from IP protection as well. In the film “Coming to America,” there is a hamburger chain called “McDowell’s,” which looks suspiciously like McDonald’s. It has a similar logo and products, such as the “Big Mick” burger and milkshakes, according to the joke. In the real world, the United States Patent and Trademark Office (USPTO) would almost certainly have rejected a “McDowell’s” trademark because of the likelihood of confusion with McDonald’s. A company that has created a brand and wants to protect it from “copycats” like these benefits from trademark protection, as do consumers who are otherwise harmed by market confusion.

Open Source & Open Access Initiatives

Open source and open access initiatives make various types of works available to the public.

Open access typically refers to the free distribution of research or educational materials online. Owners of these materials typically retain copyright and control over the distribution of the works. The Budapest Open Access Initiative, an international effort to make research articles in all academic fields freely available on the internet, is an example of open access. Another example is Creative Commons, a non-profit organization that provides licenses for a massive amount of creative, usually copyrighted, works. Its mission is to help people and organizations “overcome legal barriers to the sharing of knowledge and creativity to address the world’s challenges.”

The term “open source” often refers to free software, but it also refers to a larger conceptual movement. The Open-Source Initiative encourages the sharing of source code and offers advice on how to distribute it. Its principles include the requirement that a license “must not discriminate against any person or group of persons,” as well as the ability to distribute the source code. These principles are intended to encourage creativity while also providing access to code to people who might not otherwise be able to afford it.

So, why would a creator choose to give away his or her creative works for free? For one thing, creativity often breeds more creativity, and those who choose to present their works for free may do so with the hope of encouraging new ideas, products, and solutions to larger societal challenges. Furthermore, allowing free access levels the playing field slightly, allowing entrepreneurs and individuals to compete more effectively with large corporations with greater resources.

Of course, creators may wish to profit from their creations. A singer/songwriter who owns the rights to a piece of music, for example, is unlikely to give away his or her music for free. In general, they would monetize their copyright through methods such as live performances of their copyrighted works, publishing rights, record sales, and streaming. Traditional IP rights continue to be the norm in this area, despite an increasingly complex landscape, and policies such as the Music Modernization Act of 2018 aim to streamline and update copyright law for the digital era.

Striking a Balance

It can be difficult to strike a balance between traditional IP rights and open-source initiatives. Creators may wish to profit from their intellectual property while also considering the implications for society as a whole and how a specific creation can benefit society.

The Open COVID Pledge is one example of this convergence. The Pledge’s goal is to persuade “organizations all over the world to make their patents and copyrights freely available in the fight against the COVID-19 pandemic.” The Open COVID Pledge is currently managed by Creative Commons, and some of the innovations pledged by companies include touchless password authentication, access to healthcare data, and 3D-printed respirators. A creator can grant three types of licenses, including an “open COVID license” that expires after a set period.

There are advantages to taking the Pledge; for example, defeating the devastating COVID-19 virus will benefit humanity on a global scale, which will necessitate global participation and collaboration. Furthermore, Pledge companies are publicly recognized for their participation, generating goodwill that may result in commercial benefits elsewhere. Taking the pledge, however, may result in potential restrictions on IP licensing once the pandemic is over. Before taking the Pledge, some compliance issues must be addressed and considered. Also, how will derivative works be dealt with? While many companies have signed the Pledge and provided access to various patents and copyrights, these factors have prevented some key industries, such as medical device companies and pharmaceuticals, from fully embracing the Pledge’s principles.With a knowledge economy that has been ushered in over the last 60 years largely due to the incentives of traditional IP rights, the question of how to strike a balance with the extraordinary benefits of open access principles will be a challenge, an opportunity, and possibly the source of innovation. “We’re going to try to avoid the simplified intellectual property versus technology binary,” says Stan Muller of Crash Course. The notion that we must choose between undervaluing the fruits of intellectual talent and labor and undervaluing our networks’ revolutionary information-sharing capacity is misguided. The more interesting and difficult question is how we can find a happy medium.”