Jerome H. Reichman & Ruth L. Okediji, When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods on a Global Scale, 96 Minn. L. Rev. 1364 (2012).
Abstract: Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena. Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. Today, however, the formidable array of legislative maneuvers to tighten the grip of copyright laws in defense of cultural industries whose business models were upended in the online environment have, deliberately or not, undermined the ability of the scientific community to access, use, and reuse vast amounts of basic knowledge inputs. Database protection laws, reinforced by electronic fences and contracts of adhesion, further subject copy-reliant technologies to the whims of publishers and hinder the pooling of publicly funded resources that empower collaborative research networks and the formation of science commons in general. The authors analyze the different components of a complicated transnational legislative fabric that have changed world copyright law into a science-hostile environment. Given the global nature of digital scientific research, they focus attention on comparative laws that fragment research inputs into diversely accessible territorial compartments. This analysis shows that users of automated knowledge discovery tools will likely become collective infringers of both domestic and international property laws. In response to this challenge, the authors discuss possible solutions to the problems that intellectual property laws have created for digitally integrated scientific research from two very different angles. First, the authors skeptically consider the kinds of legal reforms that would be needed if commercial publishers continued to act as intermediaries between producers and users of scientific information and data, as they do today, without regard to the likelihood that such reforms would ever be enacted. The authors then reconsider the role of publishers and ask whether, from a cost-benefit perspective, it should be significantly modified or abandoned altogether. Finally, the authors examine alternative strategies that the scientific community itself could embrace in a concerted effort to manage its own upstream knowledge assets in ways that might avoid, or at least attenuate, the obstacles to digitally empowered scientific research currently flowing from a flawed intellectual property regime. The Article concludes by stressing the need to bridge the current disconnect between private rights and public science, in the overall interest of both innovation and the advancement of knowledge.