Program on Law & Technology @ Columbia University School of Law

The Dissonance of Scientific and Legal Norms

by Clarisa Long

Abstract

Scientific research is facilitated by informational externalities. By directing informational flows, intellectual property law creates incentives for researchers to refrain from publishing research results before seeking intellectual property protection, to retain control of information, and to release research results strategically. Open communication and the sharing of research results, on the other hand, is the lifeblood of scientific research. Free riding on others’ information or experimental results, so long as proper credit is given, is accepted practice. This Article explores the causes of tension between scientific research and intellectual property law. First, it discusses how both scientific research and intellectual property law have norms and mechanisms for controlling informational flows, although these mechanisms are often at odds. Second, it describes by way of example the brouhaha over the attempt to patent gene fragments and the impact this has had on the scientific community. Finally, it presents and analyzes some factors that can influence the outcome of interactions between the scientific community and intellectual property rights regimes.