The Right to Research During and After the Pandemic

For all the hardship and tragic loss of human life that the current pandemic has wrought – even as we look for signs of the scourge’s end – it has had, I would hold, a positive effect on science. The last year or so has impressed upon many in the sciences that the more open and collaborative forms of research that mark the fight against Covid-19 will be worth retaining as a better way of doing science across the board. Among the earliest points of this opening, which came before the WHO classified this novel coronavirus, was the move of scholarly publishers’ to suspend copyright restrictions on the sharing of the relevant research. Since then, close to 100,000 Covid-related research publications have been made publicly available to assist researchers around the world, whether their institution holds a subscription to the journals this work appears in or not. This open access to research, along with the use of equally open preprints prior to publication, led Science to declare, in February, 2020, that there is “a completely new culture of doing research” as the “coronavirus outbreak changes how scientists communicate.”

If open science represents a cultural change that is serving humankind well in its time of need, it is, at the same time, exposing the law’s inadequacies in supporting this new level of service. After all, making Covid-19 research freely available was not the result of anything in the law; it was not an action undertaken by concerned governments or other legal bodies. Rather, it was the result of commercial and non-profit scholarly publishers moving as a single body to temporarily lift copyright restrictions on the circulation of the relevant research. This suspension was necessary because copyright makes no concessions for the circulation of research as a public good. The law’s exceptions for “fair dealing” and “fair use” do allow for copies to be made for research purposes. But this thoroughly antiquated carryover of the era of photocopiers depends on one having access to the article one wishes to copy in the first place. Sure, an interlibrary loan request can be made for such a copy, but is that the speed at which we wish science to move today in the face of the current crisis?

This further speaks to what has become a somewhat constant theme for me in calling for a review of the extent to which copyright law can be said to promote or impede the progress of science.

Yet if a copyright workaround has been applied by publishers, our hopes are now being stymied by a second legal concern involving, not surprisingly, the patent protections of the vaccinations resulting from the flourishing of open science. While scholarly publishers readily set aside copyright to ease access to Covid-19 research, their actions were backed by the libraries that continued to subscribe to the journals with those temporarily open articles. What we are seeing more recently is that the segments of the pharmaceutical industry involved in developing and distributing the vaccines, although heavily backed by government funding, are not prepared to set aside patent restrictions on the manufacturing of these vital tools for curtailing the coronavirus. This “completely new culture of doing research” is running into a legal roadblock, as it is poised to deliver what the world desperately needs at this moment.

I find it hard to imagine a clearer call for a reconsideration of how well intellectual property law is equipped to serve the greater basic needs of humankind at the present time. Nor is the world sitting idly by in light of this situation. India and South Africa are leading a group of 50 countries in petitioning World Trade Organization members to ensure that patent and copyright laws from “do not create barriers to the timely access to affordable medical products including vaccines.” It is a legal move that has the support of Nature, itself an intellectual property giant, which sees in the waiver called for in this appeal nothing less than a way of “accelerating the end of the pandemic.”

Given the needs and challenges posed by such reconsiderations of the law, I find it heartening to see that the Program on Information Justice and Intellectual Property at the American University Washington College of Law has launched a new “Right to Research in International Copyright” initiative. The idea of mobilizing inquiry and energy in exploring how this right can be exercised on an international scale seems an excellent way to build on the momentum established by current open science efforts. To address these issues, the Washington College of Law program is inviting research proposals on the international dimensions of this right to research. It is seeking “research relevant to the development of global norms on copyright policy in its application to research.” This might involve the perspectives of researchers, readers, and institutions; the studies might take the form of history and theory, empirical studies, and legal and policy analysis. I invite readers to join with me in submitting a proposal (before May 15, 2021) to contribute to this effort to investigate this right to research within the international scope of copyright law. I’ve also agreed to participate as a speaker on May 14th, arising from work on copyright reform for research that I have described here in previous columns.

My hope remains that WTO members will soon see the wisdom of granting a temporary reprieve from the copyright and patent restrictions that are impeding our ability to eradicate the source of this pandemic. Yet we also need to recognize that the value of open science, so dramatically demonstrated over the last sixteen months, extends beyond responding to global health crises. It should increasingly be how we do science. To that end, this right to research is surely worth making a permanent part of intellectual property law on an international scale.

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