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Eugene Sweeney, Iambic Innovation Ltd
Everyone wants to be “open”! “Open” has become a bit of a buzzword and is used everywhere; in policies and practices such as Open Science, Open Research, Open Access, Open Innovation, Open Source, Open Standards, Open Data; Open to the World, and even in company names, such as OpenAI, the creator of ChatGPT. A search of registered UK companies showed almost 6500 companies whose name starts with “Open”!
However, in the sphere of research, innovation and exploitation, there is often confusion, conflation and misunderstanding of these terms, as well as the relationship between openness, IP rights, and commercial use. “Open” is often mistakenly taken to mean “no-IPR issues”, or “free for commercial use”.
The purpose of this short article is to explain the differences between these “open” things, and to show that openness is not incompatible with IP protection or commercial exploitation. Whilst there are some differences in the way openness is interpreted, the focus here is on openness in the context of the EC’s Horizon Europe funding programme.
Open Science
Open Science is now a key policy priority for the EC’s Horizon Europe programme, and also for many national research programmes. Although Open Science practices vary in detail, and continue to develop, it is in essence about ensuring that research results are as widely and freely available as possible, without any barriers or pay-walls. This is sometimes referred to as Open Research. It is a way to encourage innovation, enabling further research and innovation which can build on those results. Since there are no “discipline paywalls” for publications, it can also enable inter-disciplinary research.
Open Science is also about engaging stakeholders across the value chain, including the public, by making them aware of the outputs of research, and to seek their input to inform future research which addresses the needs of society.
In Horizon Europe there are both mandatory and recommended Open Science practices. The mandatory practices include Open Access to scientific publications and data, and responsible management of research data in line with the FAIR[1] principles. The recommended practices include the participation in open peer-review, and engaging stakeholders across the value chain (co-creation).
At the core of Open Science is Open Access for publications and data (Open Data).
Open Access
Open Access in Horizon Europe refers to making scientific publications and data freely available without any restrictions, such as for subscription-based journals. This enables the research results to be built on, for further research or to develop new innovations. It also allows the results and data to be validated.
Open Data
In the context of Horizon Europe, the data which should be made open access refers to research data in digital form, i.e. facts or numbers, collected to be examined and considered as a basis for reasoning, discussion, or calculation. For example, measurements, experimental results, observations from fieldwork, images, interview recordings, and data collected from satellites or sensors. It does not include personal data or commercial data, or publications.
In addition to the data, information must also be provided about any tools which are needed to analyse the data and the licence terms under which the data is made available.
As well as making the data open access, the database itself (i.e. the collection of data) must be managed responsibly in line with the FAIR principles to ensure the data can be readily found and accessed, be interoperable and reusable.
Openness, IP Protection, and Commercial Exploitation
Making research publications or data open access does not mean that they are not protected, or can be freely exploited commercially. For example, whilst a research publication might be freely available, the results or data being described in it may be protected by formal IP Rights (e.g. patent, design right, database right, copyright, etc). If the results are protected and they are needed for commercial purposes, then the permission of the owners will be required to obtain the “freedom to operate” (FTO).
In the case of a publication which describes something which may be patentable, it is important to file a patent application before publishing. In most countries a patent will not be granted if there has been any public disclosure before the application has been filed.
In addition, the publication itself and the data (if there has been a creative element) are protected by copyright. Under the rules of Horizon Europe, the copyright in the publication needs to be retained by the owner (i.e. the beneficiary of the funding) in order to comply with the mandatory Open Access requirements. This means that rather than assigning the copyright to a (commercial) publisher, the publication should be licensed under something like a Creative Commons CC-BY licence, which grants permission to copy and distribute for commercial purposes.
In addition, when a publication, or data, is put into an Open Access repository, the licence terms for access and re-use of the copyright material need to be included.
As Open as Possible, as Closed as Necessary
Whilst Open Access is now a mandatory requirement in Horizon Europe, it is possible for projects to opt out at any stage for legitimate reasons. So, the principle is “as Open as Possible, as Closed as Necessary”.
Legitimate reasons include the need to file a patent application before publishing, or the need to keep a result or data confidential for commercial reasons. Other legitimate reasons include the need for confidentiality in connection with security issues; protecting personal data; or if disclosure might compromise the achievement of the project’s main aim.
Open Innovation
The term “Open Innovation” was coined by Henry Chesbrough in 2003 in his book “Open Innovation – The New Imperative for Creating and Profiting from Technology”. The underlying premise was that companies shouldn’t try to everything themselves but work with others. It was a time when a “not invented here” attitude was prevalent in large corporations, and, due to a recession, many large corporate research labs were being scaled down.
Chesbrough defined Open Innovation as “the use of purposive inflows and outflows of knowledge to accelerate internal innovation”. That is to say, companies can and should use external knowledge (from other companies or research institutions), and consider both internal and external paths to market (e.g. licensing in and out), to innovate and improve their performance.
A few years earlier, in 1999 another seminal book was published by Kevin Rivette and David Kline entitled “Rembrandts in the Attic”. This again was aimed at large corporates who did a lot of research, but much of that research remained unused and hidden “in the attic”. Their message was similar to Chesbrough’s, encouraging the licensing out of unused (protected) IP, or licensing out core IP into non-competing sectors.
Like Open Science, the concept of Open Innovation continues to evolve, but the underlying premise remain the same. Open Innovation is essentially about collaborating with others to develop innovations, but as with Open Science not necessarily free for commercial use.
Open Source
Open Source refers to a type of copyright licence for software code. It should be confused or conflated with Open Science, Open Access or Open Innovation. It is just another type of licence, which grants rights to access and use the software code, which is protected by copyright (so not in the public domain).
The decision to make source code available is a strategic commercial one, not a policy decision. There are many good reasons for using an Open Source licence, but the choice should be appropriately justified.
The fundamental concept is that the licensee gets access to the software source code. The licence grants the right to install, copy and (maybe) modify the code, but redistribution usually has conditions attached.
There are many different versions (~70), with variations (~1500) of Open Source licences – so if a “standard” Opens Source licence is being used then it is important to check the licence terms carefully, since some might restrict commercial use.
Open standards
Open standards are technical specifications which are freely and publicly available for anyone to use, implement, and modify. They are usually developed and maintained through a collaborative, consensus-driven process, although sometimes an organisation may make decide to make a proprietary standard freely available as an Open Standard.
Many different organisations develop and maintain open standards. Some well-known open standards include: HTTP (Hypertext Transfer Protocol), the protocol used for transmitting data over the internet; PDF (Portable Document Format), a file format used for documents; and ODF (Open Document Format), a file format used for documents, such as word processing, spreadsheets, and presentations.
European Initiatives to support Open Science
The EC has developed platforms to support their Open Science Policy, and to assist beneficiaries to comply with the open access requirements of their funding. Currently available platform are Open Research Europe, which includes Open Peer Review, and the European Open Science Cloud.
Open Research Europe (ORE) is an open access publishing platform for the publication of research stemming from Horizon 2020, Horizon Europe, or Euratom. The platform offers researchers a publishing venue to share their results, and facilitates open, constructive research discussions. It is based on an open peer review system.
Open Peer Review in Open Research Europe works as follows. Once a submitted article has passed the pre-publication checks, a version is published on the platform, enabling immediate viewing and citation. Expert reviewers are then selected and invited to review, and their reviews and names are published alongside the article, together with the responses from the author(s), and other comments from registered users. Authors are encouraged to publish revised versions of their article based on the feedback received.
The European Open Science Cloud (EOSC) is a cloud based, open, multi-disciplinary environment where researchers can publish, find and re-use data, tools and services for research, innovation and educational purposes.
In conclusion, many things are now “open”, which generally means freely accessible for further research and development, but not necessarily free for commercial use. In addition, the items which are made “open access”, are usually protected by IP rights – copyright for publications and software code, as well other forms of protection (IPRs, secrecy, etc) for the methods or inventions described in the publications, or implemented by the software code.
So, “open” does not mean “no IPR issues”, or “free for commercial use”. It is about increasing access to research results and data to allow new innovations to build on them – so increasing the capacity to innovate.
March 2023
[1] Findable, Accessible, Interoperable, Reusable