This article is written by Deepika Kapoor of Dr. Ram Manohar Lohiya National Law University, an intern under Legal Vidhiya
ABSTRACT
The Open Access (O.A.) movement challenges traditional Intellectual Property Rights (I.P.R.) by advocating for free and unrestricted access to creative works and information. This paper explores the dynamics between I.P.R. and O.A., highlighting their respective roles in fostering innovation and knowledge dissemination. I.P.R. provides creators with legal protections and incentives, ensuring they are duly rewarded for their contributions. In contrast, O.A. initiatives promote inclusivity and accessibility, aiming to democratize knowledge and spur collaboration. The paper discusses various mechanisms for achieving O.A., such as gold and green roads, and examines the benefits and challenges of O.A. in the context of the Open COVID Pledge. It also delves into India’s efforts in promoting O.A., noting the establishment of institutional repositories and the government’s support for O.A. policies. Through a nuanced analysis of I.P.R. and O.A., this paper underscores the importance of striking a balance between protecting intellectual property and promoting open access to advance societal progress and innovation.
Keywords
Open Access, Open Access Movements, Intellectual Property Rights, Innovation, India.
INTRODUCTION
Intellectual Property Rights (I.P.R.) represent a crucial set of protections afforded to the creators of intellectual property. These rights serve as a cornerstone for fostering innovation and encouraging the development of new inventions. At their core, I.P.R. aims to ensure that creators, innovators, and inventors are appropriately rewarded for their contributions. This reward system is not just a matter of financial gain; it is about recognizing and valuing the creative efforts and time invested in developing new ideas. By securing legal recognition for intellectual property, innovators gain a tangible sense of ownership, enabling them to monetize their inventions. This aspect of I.P.R. is essential; without legal protection, there would be nothing to stop others from copying and selling an inventor’s work, thus depriving the original creators of the financial benefits they rightfully deserve. Moreover, establishing intellectual property rights allows inventors to regulate how their inventions are used. This control is critical for preventing unethical or harmful applications of their work. By granting creators this authority, society not only respects their moral rights but also ensures that innovations contribute positively to the common good.[1] To summarize, the recognition and enforcement of intellectual property rights are fundamental to the progression of society. Protecting the rights of creators, innovators, and inventors serves as a powerful motivation for them to tackle society’s challenges with fresh, innovative solutions. This legal framework fosters an environment where creativity and innovation can flourish, ultimately benefiting humanity as a whole. Contrasting with the traditional model of Intellectual Property Rights are Open Access initiatives, which advocate for making information and creative works freely accessible to everyone. This approach stands in direct opposition to the exclusivity typically associated with I.P.R., where the creators’ works are freely available to the public, though the creators still retain copyright over their works. Open Access and Open Source initiatives are often supported through public funding, subsidies, and other revenue-generating models that do not rely on the exclusivity of copyright. The driving principle behind the Open Access movement is inclusivity; it posits that licenses should not discriminate against any individual or group and that knowledge should be accessible to all, without barriers. This ethos seeks to dismantle legal restrictions that hinder the sharing of knowledge, aiming to address global challenges through a collective and open approach. By promoting the dissemination and utilization of information, Open Access initiatives strive to level the playing field, ensuring that everyone, regardless of their background or resources, has the opportunity to learn, innovate, and contribute to society’s advancement.
OPEN ACCESS
Open access was initially introduced in developed countries and was brought to the forefront through three significant declarations: the Budapest Open Access initiative in 2002, the Bethesda statement in June 2003, and the Berlin declaration in October 2003. Since then, open access has been embraced globally, including in developing countries like India. It has made remarkable progress in the areas of public policy support, copyright publisher alliance, and technology standards. Essentially, open access provides free, immediate, and unrestricted access to digital content such as scholarly journal articles and research findings. Authors publish their work without expecting any payment, based on the ethical belief that research funded by the public should be available to the public. Open access operates within the legal framework, and authors own the original copyrights for their work. They can transfer the rights to publishers to post their work on the web or retain the rights to post their work in archives[2]. For open access to be effective, enabling technologies and metadata interoperability protocols are necessary, such as open-source software for managing digital archives (e.g., DSpace, e-prints, Greenstone), open-source software for online journal publishing (e.g., O.J.S. system from Public Knowledge Project, University of British Columbia, Canada), metadata schemas, and the O.A.I. Protocol for Metadata Harvesting (OAI-PMH), which collects metadata and enables it to be searched.[3]
There are a variety of ways to achieve Open Access (OA), as identified by Harnard et al. (2004). The two main roads to OA are known as ‘gold’ and ‘green’. The gold road involves publishing in OA journals that are immediately accessible upon publication. The green road, on the other hand, involves self-archiving. Although the Green Road is faster and cheaper, the Gold Road is better maintained and managed despite being more costly.[4] Here are some of the different mechanisms for achieving OA: – Open-access publications, like PLoS Biology and D-lib, provide unrestricted access to web-based O.A. journals. – Subject-specific and domain-specific institutional and digital repositories, like Arxiv, make freely available articles authored by organizations or individuals affiliated with scientific societies or associations. – Limited access journals, like Nature, permit open access to specific sections of their publications. – Delayed open access versions are articles published by Highwire Press that become open access after a predetermined amount of time. – Dual-mode publications are subscription-based print and online editions that also have open access options, like the British Medical Journal. – The access depending on the state of the economy method allows traditional publications to be made available as OA periodicals to countries based on economic criteria, such as HINARI and AGORA[5].
The term “open source” not only refers to software that is freely available but also represents a larger movement. The Open-Source Initiative actively promotes sharing source code and provides guidance on its distribution. Their principles require licenses to be non-discriminatory and allow for the distribution of source code, with the aim of fostering creativity and providing access to code to those who may not have the means to obtain it.[6] So why might a creator choose to offer their work for free? For one, creativity often sparks more creativity, and those who share their work freely may hope to inspire new ideas, products, and solutions to societal challenges. Additionally, free access levels the playing field, enabling entrepreneurs and individuals to compete with larger corporations that have greater resources. Of course, creators may also wish to monetize their work. For instance, a singer/songwriter who copyrights their music is unlikely to release it for free. They typically capitalize on their copyright through live performances, publishing rights, record sales, and streaming. While traditional intellectual property rights remain the norm in this area, it is an increasingly complex landscape, and policies like the Music Modernization Act of 2018 are working to streamline and update copyright law for the digital age.
MAINTAINING THE BALANCE BETWEEN THE IPR AND OPEN ACCESS
Balancing traditional intellectual property (IP) rights and open-source initiatives can be a complex issue. Creators often grapple with the desire to monetize their IP while also considering the potential positive impact of their creation on society as a whole. This tension can be observed in the Open COVID Pledge[7], which aims to encourage organizations worldwide to make their patents and copyrights available without charge in the fight against the COVID-19 pandemic. Managed by Creative Commons, the Open COVID Pledge has seen a range of innovative contributions from companies, including touchless password authentication, access to healthcare data, and 3D-printed respirators. Creators can grant three types of licenses, including an open COVID license that expires after a specific period. Participating in the Pledge has several benefits. Winning the war against the devastating COVID-19 virus requires global collaboration and participation, and this pledge can help achieve that goal. Additionally, companies that take the pledge receive public recognition for their participation, which can lead to goodwill and commercial benefits. However, taking the pledge could result in potential restrictions on licensing IP once the pandemic is over. Compliance issues must be addressed and considered before taking the Pledge. Additionally, the question of how to address derivative works remains important. While many companies have taken the Pledge and provided access to various patents and copyrights, some key industries, such as medical device companies and pharmaceuticals, have been reluctant to embrace the principles of the Pledge due to these concerns. The knowledge economy, which has been largely driven by traditional I.P. rights over the last 60 years,[8] faces a significant challenge in balancing the benefits of open-access principles with the incentives for creators to protect their intellectual talent and labor. However, this challenge can also present an opportunity for innovation, as stakeholders work to find a balance between these two priorities. As Stan Muller from Crash Course notes, “We’re going to try to avoid the simplified intellectual property versus technology binary. The more interesting and more difficult question is how we can strike a balance.”[9]
OPEN ACCESS AND INDIA
Access to international journals and low visibility of research papers are the primary challenges faced by researchers in India. To address these issues, Open Access (OA) is being viewed as a possible solution. In 2003, Rajshekar explained that India’s challenge is to improve reciprocity in information flow and access to enhance the impact of Indian research[10]. To create a national R&D resource base and promote an open-access approach, in line with the Budapest Open Access Initiative, various R&D organizations and top scientific research institutions in India, such as the Indian Institute of Science, IITs, ISI, institutes under the CSIR, and Indian Council of Medical Research, are now actively participating in the open access movement.[11] They have established institutional and digital repositories to provide global access to their research literature. Moreover, many Indian publishers have already adopted the open-access philosophy for the electronic versions of their journals. Indian open-access journals do not require authors to pay to publish their papers. Instead, they use government grants and subscriptions to their print versions to cover publishing costs. This approach is different from open-access journals in other countries, where authors have to pay to publish their papers. The digital repositories provide access to a wide range of research literature, including journal articles, conference papers, reports, and theses. This open-access approach allows researchers to access relevant information that was previously difficult to obtain, and it promotes collaboration among researchers in India and around the world. In conclusion, open-access initiatives in India have the potential to address the challenges faced by researchers in accessing international journals and to enhance the impact of Indian research. The government’s support for such initiatives will be crucial for their success and sustainability. India has made significant strides in establishing open access institutional repositories to share research outputs. These repositories have been made possible due to the availability of technical infrastructure and free open source software applications for setting them up. The most commonly used software in India for this purpose is e-prints, provided by the University of Southampton, and Dspace by MIT. However, the access to full texts in Indian repositories is not uniform, and in some cases, it is only available on the intranet or by registration. Copyright ownership is also a subject of intense discussion in India. The growth of Indian research repositories is tracked by ROAR (Registry of Open Access Repositories) and OpenDOAR (Directory of Open Access Repositories). Currently, 20 Indian repositories are registered on ROAR, and India ranks 8th on the list of countries with OA repositories registered on ROAR[12]. India ranks 12th in terms of the overall number of journals among the top 25 publishing countries.[13] However, its position drops to 18th for scientific journals with online content.[14] Surprisingly, India ranks 5th on the list of countries with open access journals, ahead of many developed countries such as the Netherlands, China, Germany, and Australia[15]. India has shown great commitment to the developing world by setting up some operational examples and methodologies for open access. More than a hundred Indian journals now provide free access to full-text content to a wider audience. The Journal of Post Graduate Medicine, published by Medknow, is one such journal that has gained enhanced visibility and increased submissions of articles since being made open access. This journal is indexed by Abstracting and Indexing services, including PubMed, and is OAI compliant through the Bioline International e-prints archive. The statistics show that the number of visitors and downloads of articles in JPGMonline can rival some of the better-known international medical journals. Some journals require free user registration (e.g., INSA), while others offer browsing facilities without user registration (e.g., IMC journals). Another significant development in the open access scenario has been the Open Course Ware (OCW) initiative, which has gained momentum with the announcement of the availability of learning resources on the Internet by two important national-level organizations, namely IGNOU and NCERT. The Government of India has set forth an ‘Optimal National Open Access Policy[16],’ which expects authors of research papers resulting from publicly-funded research to deposit electronic copies of the research papers into an institutional open access repository immediately upon acceptance for publication. Grant holders are encouraged to publish in OA journals, and the grant will cover the publication costs.
CONCLUSION
The interplay between Intellectual Property Rights (I.P.R.) and Open Access (O.A.) is complex, reflecting the evolving landscape of innovation and knowledge dissemination. While I.P.R. safeguards creators’ rights and fosters innovation, O.A. initiatives promote inclusivity and collaboration, advancing the collective benefit of society. The Open COVID Pledge exemplifies the potential of O.A. to address global challenges through collective action. In India, efforts to promote O.A. have led to the establishment of institutional repositories and the adoption of O.A. principles by publishers. However, challenges remain, including ensuring uniform access to repositories and addressing copyright ownership issues. Moving forward, it is essential to strike a balance between I.P.R. and OA, recognizing the value of both in driving innovation and knowledge sharing. By embracing the principles of O.A. while respecting creators’ rights, societies can create a more equitable and sustainable framework for the advancement of knowledge and innovation.
REFERENCES
- Saha, C. N., & Bhattacharya, S., Intellectual Property Rights: An Overview and Implications in Pharmaceutical Industry, J. Advanced Pharm. Tech. & Res, 2, no. 2 (2011): 88-93. https://doi.org/10.4103/2231-4040.82952.
- 2. Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
- Harnard, S., et al. “The Access Impact Problem and Green and Gold Roads to Open Access.” Serials Review 30, no. 4 (2004). Available at http://www.ecs.soton.ac.uk/~harnard/temp/impact.html.
- Michelson IP. “Understanding the Balance of Traditional IP Rights and Open Access Initiatives.” January 27, 2021. https://michelsonip.com/traditional-ip-rights-and-open-access-initiatives/.
- T.T. Consultants. “Striking A Balance Between IP Rights And Open Access Initiatives.” TT Consultants, February 27, 2023, https://ttconsultants.com/striking-a-balance-between-ip-rights-and-open-access-initiatives/.
- Nature India. India’s Open Access Future. (2020), https://doi.org/10.1038/nindia.2020.125.
[1] Saha, C. N., & Bhattacharya, S., Intellectual Property Rights: An Overview and Implications in Pharmaceutical Industry, J. Advanced Pharm. Tech. & Res, 2, no. 2 (2011): 88-93. https://doi.org/10.4103/2231-4040.82952.
[2] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[3] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[4] Harnard, S., et al. “The Access Impact Problem and Green and Gold Roads to Open Access.” Serials Review 30, no. 4 (2004). Available at http://www.ecs.soton.ac.uk/~harnard/temp/impact.html.
[5] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[6] Michelson IP. “Understanding the Balance of Traditional IP Rights and Open Access Initiatives.” January 27, 2021. https://michelsonip.com/traditional-ip-rights-and-open-access-initiatives/.
[8] T.T. Consultants. “Striking A Balance Between IP Rights And Open Access Initiatives.” TT Consultants, February 27, 2023, https://ttconsultants.com/striking-a-balance-between-ip-rights-and-open-access-initiatives/.
[9] Michelson IP. “Understanding the Balance of Traditional IP Rights and Open Access Initiatives.” January 27, 2021. https://michelsonip.com/traditional-ip-rights-and-open-access-initiatives/
[10] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[11] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[12] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[13] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[14] Bist, Rajender Singh, and Patnaik Mohanty. “Open Access Movement and Open Access Initiatives in India.” International Journal of Information Dissemination and Technology 2, no. 4 (2012): 236-246. https://ir.inflibnet.ac.in/bitstream/1944/1227/1/236-246.pdf.
[16] Nature India. India’s Open Access Future. (2020), https://doi.org/10.1038/nindia.2020.125.
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