Intellectual Property and Open Science: The false dichotomy

By Arturo Covarrubias and Gabriel Vargas, Covarrubias

Open Science has established itself as one of the most influential trends in how knowledge is produced and shared. The 2021 UNESCO Recommendation, the European Plan S, and the open access policies increasingly adopted by public funding agencies in the region set a clear direction. This regulatory shift advances at different speeds depending on the jurisdiction, but it shows no signs of retreating. In Latin America, where platforms like SciELO, RedALyC, and CLACSO have been democratizing access to knowledge for decades, the trend has particularly deep roots.

For lawyers advising academic institutions or R&D centers, a question arises with increasing frequency: how can the pressure to "open" be reconciled with the right to protect? The concern is legitimate, but it rests on an inaccurate premise.

What Copyright Protects (and What It Doesn’t)

The first erroneous belief is assuming that opening knowledge is equivalent to leaving it unprotected. Copyright protects the form of expression—the scientific article, the software, the methodological manual—not the underlying ideas, methods, or data. This distinction, present in copyright legislation throughout the region, is precisely what makes openness viable: sharing data and methods does not imply the disposal of protected material.

Moral rights—authorship and integrity—are inalienable and cannot be waived in Latin American jurisdictions. A researcher who publishes via open access does not lose their authorship. What they manage are the economic rights, and for this, Creative Commons licenses exist: standardized authorizations that allow the holder to define the terms of use for their work without waiving their rights. These licenses function within the copyright system, not against it.

Patents and Novelty: The Genuine Friction

While copyright naturally coexists with openness, Industrial Property presents a specific tension. The requirement of novelty—found in virtually all regional legislation—means that an invention disclosed before a patent application is filed may lose its patentability. Open Science promotes early disclosure; the collision is evident.

However, there are solutions: The correct sequence: File for protection before disseminating. Harmless disclosure: Most regional laws provide a grace period—generally twelve months—during which the applicant's own disclosures do not destroy novelty. Note: Prudence suggests not relying on grace periods as a primary strategy, especially for international patents, as the timeframes and scopes vary significantly between jurisdictions.

The only incompatibility and the role of the lawyer

There is one form of Industrial Property that is irreducibly incompatible with Open Science: trade secrets. Their value lies in secrecy; openness destroys them. This is the only scenario where the contradiction is real. In all other cases, the issue can be resolved using tools already existing within the legal framework.

But these tools do not operate in a vacuum. Funding contracts often contain ownership, confidentiality, and embargo clauses that may clash with open access commitments. Editorial contracts, in the traditional model, require the transfer of economic rights. R&D agreements with the private sector impose dissemination restrictions. Identifying these tensions before signing—not after publication—is the difference between effective management and avoidable conflict.

Open Science is not the antithesis of Intellectual Property. It is a model that requires a more sophisticated management of intellectual rights. For IP lawyers in the region, this does not represent a threat, but rather a considerable expansion of our work. Latin America has a tradition of open access to knowledge that precedes formal policies; providing it with legal rigor is the challenge that lies ahead.