A Natural Intellectual Property Experiment Proves What Is Necessary May Not Be Sufficient

On December 1, 2020, Dr. Sott Atlas resigned his position as “special advisor [on the coronavirus] to the president of the United States.” Many of us breathed a sigh of relief, if through our masks. After all, my Stanford colleagues had voted for a faculty senate resolution, that condemned this Stanford-affiliated man’s “disdain for established medical knowledge.” To take but one example I’ll return to below, Atlas had tweeted “Masks work? NO,” citing Oxford Professor Carl Heneghan.

What Atlas illustrates for me, as a long-time advocate of open access to research and scholarship, is a cautionary result of this natural experiment in open science known as the coronavirus pandemic. The urgent need to address this threat led scholarly publishers to promptly fling open the virtual gates to the research associated with the coronavirus. Suddenly, universal open access prevailed on this topic, where access had been limited less than a year ago to a small portion of it.

This experiment has already had one immediate result, while a second outcome will take some time to sort out, and a third finding offers more of a cautionary note, sounded by the case of Scott Atlas, on the current limits of open access in addressing misinformation.

The first immediate result of this experiment applies to the current state of intellectual property law. To rely on the American model, in which this law is constitutionally grounded in relevant ways, when it becomes imperative for a country “to promote the progress of science and the useful arts,” then the pandemic makes it clear that the antiquated legal structures of copyright no longer serve that noble cause.

What we are seeing is that copyright must, in fact, be suspended to promote the progress of science. More than that, the law is ill-equipped for such suspension. It thus falls upon the publishers, as copyright holders, to take the necessary step for science. Within a month of the declared pandemic, Elsevier, the world’s largest scholarly publisher, had made 20,000 articles freely available. Other publishers have followed suit. More than 60,000 research articles are now freely available (although shortcomings have still been noted). The openness also extends to the 11,000 COVID-19 research preprints now available, as well as to much data-and-process sharing. Copyright’s constitutional shortcomings in this experiment make it clear that it is time for the law to be reformed to better serve science and humankind. As I have introduced in an earlier column from before the pandemic, this is something that I’m working on.

The second result of this open access experiment is one for which it is still far too early to know the outcome. It involves pinning down the contribution that openness is making to the fight against this pandemic. One place to look is to the current drop in Covid death rates compared to the first surge in April. What has been the role, we might ask, of open and fast-tracked research studies in the treatment decisions of health professionals? A second spot to look is with the rapid development and testing of vaccinations, with much being made, for example, of Pfizer and Moderna sharing their clinical trial plans.

Finally, the third and sobering finding for this natural experiment is revealed in the rapid rise and resignation of the widely recognised neuroradiologist Scott Atlas weighing in on the questions of infectious diseases, epidemiology, and public health. Atlas demonstrates that making the relevant science freely available cannot be counted on to prevent or deter its mis-use in support of a political agenda that leads to great harm. If open access is necessary for the progress of science, it was not sufficient to prevent Altas gaining a public platform from which he shrugged off the counsel of government health authorities and the consensus among biomedical researchers.

What will be needed going forward is far more public education on taking advantage of open access in addressing policies of import. What would this look like? Well, to use the current situation, when Altas twitter-cites the Oxford professor “Heneghan,” in his claim about masks not working, then one would expect that high-school biology students and their teachers, as well as physicians, and interested citizens, to cite back, in this case, BMJ editor Kamran Abbasi’s critique of Carl Heneghan and Tom Jefferson’s analysis that Altas is calling on. Each of their contrary claims would be explored by the public delving into the randomized controlled trial Danmask-19 that is at the center of the controversy.

None of this engagement with the ongoing flow of open research precludes discussion of and disagreement over results, methods, and the current state of what we know. This is not about hitting upon a truth that will set us free, that is, free from having to exercise judgment and weigh findings. This is what it will take to expose the inadequacies of Atlas’ recommendations on a widely accepted scale. Much as open access’ promotion of scientific progress is needed, it will only offer a sufficiently widespread check on misguided policies, as this access becomes a commonplace of public education and public discourse.

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