To open or to protect, that is the question

European Union is strongly promoting open data and the free global use of the results produced in research, development and innovation (RDI) activities. The directive on open data and the re-use of public sector information stipulates that research data resulting from RDI activities subsidized by public funding or co-funded by public and private-sector entities to be ‘as open as possible, as closed as necessary’.

In its framework programme Horizon Europe, the EU aims for open science, where research data is required to be FAIR and open by default, with notable exceptions for commercial purposes. Here FAIR data refers to Findable, Accessible, Interoperable, and Reusable. As examples of the requirements, there needs to be rich and indexed metadata (findable), metadata and the actual data need to be retrievable using a free and standardized communications protocol (accessible), metadata and the actual data need to be in broadly applicable language (interoperable), and the data need to be released using a clear and accessible data usage license (reusable).

It is reasonable to expect that the publicly funded RDI activities create products and services for the society and boost business. To reach this goal, open science community offers easy-to-use open licenses for individuals and organizations to allow commercial and non-commercial use of their research results for free. However, usually research results are not even nearly ready to be used as products or services. Research results typically range from ideas or knowledge about phenomena to technologies or models. One way to describe this variety are technology readiness levels from 1 to 9, where TRL1 means basic principles observed, TRL5 technology validated in relevant environment, and TRL9 actual system proven in operational environment. The TRLs required for the EU Horizon2020 research and innovation action calls are typically below 6.

This leaves a large amount of development work still to the organizations that use RDI results for their products and services. These organizations are usually companies that invest in further development, if they get some exclusive rights, expecting that successful products and services bring them economic benefits. The same mechanism applies to research and development work performed fully by private companies. To be able to balance between benefits to society and incentive to carry out research and development work, the society allows protecting intellectual property (IP) by e.g. patenting, which gives the inventing individuals and companies protection against “free-riders” using their work, and helps cumulate the common knowledge of the society.

Protecting IP gives individuals and companies a possibility to get financial reward for their work, and the society a possibility to spread the knowledge and accelerate innovation activities. IP may be sold or licensed, which offers an additional route to commercially exploit the research results created by higher education institutions or other research organizations using public funding. For most part, higher education institutions do not sell products or services, and cannot commercially exploit the research results in their activities. The knowledge needs to be exploited by other organizations, usually companies, and the knowledge or IP needs to be transferred or licensed to these companies.

Finnish RDI roadmap by the Ministry of Education and Culture and the Ministry of Economic Affairs and Employment states that the risk-sharing between companies and the public sector in RDI collaboration needs to be predictable, simple and encouraging. When the Finnish legislation concerning inventions in higher education institutions was prepared, one of the arguments for the law was to promote the use and exploitation of research knowledge and technology created in higher education institutions for economic, employment and other societal development.

Yet, there appears to be a contradiction here. Higher education institutions are encouraged to both open research results for free use, but at the same time they are encouraged to protect and transfer IP to individual companies. An institution may use both of these paths, and with a particular research result one needs to choose.

The open data directive and the preliminary version of the corresponding Finnish legislation allow concerns in relation to privacy, protection of personal data, confidentiality, national security, legitimate commercial interests, such as trade secrets, and to intellectual property rights of third parties to be taken into account. In this sense, ‘as open as possible, as closed as necessary’ also allows the commercial interests of the higher education institution itself to deem it necessary not to open a research result. In practice, when a higher education institution considers its options concerning a particular research result, it may choose between 1) opening the research result for free use globally by employing an open license, 2) protecting the result by e.g. patenting and possibly later selling or licensing it, or 3) keeping the result as a trade secret and exploiting it in its commercial activities or selling or licensing it.

It is beneficial for the society to allow all these options. Different research results and potential markets require different choices, and all these paths need to be used when appropriate. Researchers and other RDI personnel at the higher education institutions are often best people to decide between opening, protecting, or keeping ideas and results as a trade secret. However, one needs to have sufficient experience and knowledge to be able to choose between options. In fact, one needs to have sufficient knowledge even to realize that there are options and a decision to be made. Uninformed decisions may lead to suboptimal exploitation of the research results, or even worse, no exploitation at all, when the results are left in the “desk drawer”.

The management and the support services at higher education institutions are in a key role since they are responsible for offering sufficient training and support for their research and development staff. In addition to theoretical knowledge, practical case examples and inventor role models are needed, as well as success stories about both open licensing and protecting IP, and how these lead to commercializing research outcome. This way, informed decisions can be made for the full benefit of the society.

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