University Knowledge Transfer: From Fundamental Rights to Open Access Within International Law

Education, research, cooperation, and social participation all play a role in innovation as a catalyst for economic and social progress. Universities are among the chief stakeholders in this process. Nonetheless privatization of scientific outputs weakens the benefits of science to society and undermines the norms of science, which are based on accessing and sharing knowledge. Indeed, there is growing disorder in setting university missions whereby IP is evaluated as a value in of itself. Yet, scientific results are a collective achievement, built on vast quantities of publicly funded research and university knowledge transfer occurs mostly through open conferences, databases, and publications. This chapter focuses on scholarly publishing as a segment of knowledge transfer. It will examine open access as a tool that, according to a holistic approach, contributes to establishing a balance among all basic rights at stake, including academic freedom. The idea of a pluralistic system of knowledge transfer where “open” and “proprietary” models are not mutually exclusive will be defended. Moreover, an incentive-oriented copyright change, tailored to the specific needs of research, might be built on the TRIPS flexibility. While TRIPS prohibits discrimination, it does not prevent States from treating different situations differently. Accordingly, we might imagine a paradigm shift in the protection of academic works. Indeed, while moral right is a cornerstone, commercial exploitation of publications is not the aim of academic authors. Therefore, applying a “functional” perspective to IP the work should be protectable as long as its market needs to be preserved