Does IP Help or Hinder Science?: The Problem of Replication

To what extent is IP a help, or a hindrance, to scientific research? One need go no further than the Copyright and Patent Clause of the U.S. Constitution (Article I, Section 8, Clause 8), which famously empowers the United States Congress

 “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 

From this clause were spawned the U.S. patent and copyright laws. In other countries, even without any Constitutional underpinning, the Legislator has been enacting IP legislation for over 300 years. Clearly, therefore, these laws are meant to promote writings and discoveries. But not all writings and discoveries are protected by the relevant IP law. Perhaps even more critically, the IP laws do not always work in the interests of promoting scientific activity.

An excellent example of the potential disjunction between IP and science was described in the article, “Trouble at the Lab”, which appeared in the October 19, 2013 issue of The Economist, here. The focus of the article is the problem of scientific replication. As summarized in the article:

“The idea that the same experiments always get the same results, no matter who performs them, is one of the cornerstones of science’s claim to objective truth. If a systematic campaign of replication does not lead to the same results, then either the original research is flawed (as the replicators claim) or the replications are (as many of the original researchers …contend). Either way, something is awry.”

One of the major problems in replication is access to the methods and data of the original data. The issue is not merely that fewer and fewer researchers appear willing to share their research for the purpose of replication. Thus, as reported in the article, less than 50% of researchers stated that they would share their raw data if requested to do so, and it was only a similar proportion of researchers who complied with the data-sharing policy in place with the journal in which the article was published. But, in addition to the increasing unwillingness of researchers to share data, there appear to be IP roadblocks as well.

The first relates to the software used in the original study. The article notes that sometimes the researchers rely on computer code that they have painstakingly developed and which they view as valuable IP that gives them an advantage in future research. In such a case, as observed,

“[a]lthough most scientists agree in principle that data should be openly available, there is genuine disagreement on software. Journals which insist on data-sharing tend not to do the same for programs.” 

From the vantage of the research, taken as a whole, both the raw data and the related software should be viewed as merely two parts of a single overall project. However, legally speaking, there is a fundamental difference in IP treatment between raw data (which, disregarding sui generis regimes for protecting data qua data, such as in the EU, is protected only as to the structure of the data) and computer software, which is protected per se under copyright. The upshot is that copyright law might make it more difficult and, in some instances, virtually impossible to carry out a meaningful replication study, where customized software was crucial in carrying out the original research.

The second issue involves trade secrets and confidential information. As pointed out in the article by Professor Harry Collins, of Cardiff University in Wales, experiments involve the “tacit knowledge” of the experimenters. As described, tacit knowledge refers to “craft skills and extemporisations that their possessors take for granted but can pass on only through example.” This means that a replication might not succeed simply because the replicator “didn’t quite get these je-ne-sais-quoi bits of the protocol right.” Because of this tacit knowledge, the likelihood that the same result can be reached on replication is slight. Thus there needs to be a change in what counts as “the same procedure.” But the unsettling effect of tacit knowledge on the ability to replicate a study  in full could also be reduced if more of this tacit knowledge was passed on to the replicators. This is not to say that all such tacit knowledge could be so transferred as a practical matter. But, even if it could, the nature of legal protection for valuable confidential information provides the original experimenter with an unassailable legal right to refuse to share such tacit knowledge with the replicator. Once again, IP seems to work to the potential detriment of scientific progress.

This Kat is aware that the utilitarian nature of trade secrets and computer software means that the legal protection of such rights does not share an identical focus with the outputs of scientific research. Still, he wonders whether it might be valuable for increased dialogue on the points of intersection and divergence between the two.