Modern Problems Of Identification Of Authors Of Scientific Achievements

New time – new problems

All kinds of scientific and pseudo-scientific falsifications do not surprise anyone in a situation when the so-called “identity theft” becomes one of the most common crimes (Normile, 2009). There are often cases in the information society when the declared “scientific sensation” is just the fruit of a PR campaign (Madison, & Madison, 2018). The situation will worsen in the future. Given the gradual withdrawal of paper from everyday life and the ever-increasing information dependence on global information services and search engines, it will be soon enough to make small adjustments to such a system to be in the eyes of the whole world (in any case, the absolute majority, relying on information from the Internet, and not from the library) the "author" of discoveries, if not Einstein, then at least Frederic Senger.

Identity theft and attribution, however, are not the only problems. A modern scientist, as a rule, works as part of a group, school, department, and so on. For example, Frederick Senger's assistants (Rodney R. Porter and Elizabeth H. Blackburn) themselves received the Nobel Prize in different years. Most notably, in both of these cases, the prize was divided between two and even three scientists (The Nobel Prize in Physiology or Medicine, 1972, 2009) – as a visible confirmation of the sunset of the era of loners in science. Individual authorship in relation to scientific results turns into a rare exception. Finally, no matter how small the probability of a mere coincidence, it still exists in our increasingly crowded world. As it is shown by specially conducted studies, namesakes are increasingly found in scientific circles, and in some industries and regions their concentration is quite high and gradually grows (partly the reason for this is nepotism, partly migration processes). So, an increasing percentage of American mathematicians and chemists bears the name Zhang, and doctors and sociologists – Smith (Grilli & Allesina, 2017). In conditions where a person’s identifier is a non-unique combination of characters (name, surname), the risk that the discovery of one John Smith in certain circumstances will be attributed to another John Smith exists and gradually increases with the growth in the number of Smith scientists.

In addition it is necessary to take into account the “translation difficulties” that arise, for example, during transliteration of names (especially in cases with hieroglyphic spelling) and the tradition of changing the name of many nations under certain circumstances (for example, changing the name at marriage).

Ineffectiveness of existing copyright and patent remedies

In the law of many states, including Russia, scientific achievements can be protected as objects of industrial property if they meet the relevant requirements and criteria of patentability (protection by means of patent law), or a text containing a statement of these achievements (protection by means of copyright) can be protected. But is this enough to ensure the identification of authors and other copyright holders? We think no, not enough.

In copyright, if we use the model established by the Berne Convention for the protection of literary and artistic works of 09.09.1886 (according to which the use of the rights to works and their implementation are not related to the performance of any formalities), the identification in in each case, it is made dependent on the totality of the identifying (in the case of a dispute, a court) heterogeneous data indicating the priority of a person. Mentioning in correspondence, depositing manuscripts, expert examination, etc. – since the 19th century, the arsenal of means of fixing and proving authorship has not changed too much. Is it that replacing sending a letter to oneself or to the president of the Academy of Sciences has come from the placement of texts on specialized sites or their sending by e-mail?

In patent law, the choice of means of fixing and proof of authorship is less, but the identification of the author through a patent application (and, oddly enough, to a lesser extent through a patent) looks much more reliable. So, in Russia, by Order of the Ministry of Economic Development of May 25, 2016 No. 316, the requirements for the content of the patent application and the form of the patent for the invention were approved: among the mandatory fields in the patent application is the column “Applicant Identifiers”, which are by no means a surname, a name and patronymic (identifiers are extremely unreliable due to their nonuniqueness), and unique combinations of numbers (PSRN, KPP, TIN, SNILS) and the data of the applicant's identity document (also containing unique digital combinations). The patent itself, by the way, is still archaic in its form: it still identifies the author in it as a combination of last name, first name, middle name (last – if any) and code (codes) of the country (countries) of his (their) place of residence. In conditions when the inventor John Smith or Ivan Ivanov may not be the only person with that name in the USA or in Russia, such an identifier is nothing more than a decoration, and the true identifier in the patent is the registration number of the application for the invention indicated immediately (in which the author is already identified accurately).

Thus, if we discard the possibility of attribution of authorship by another person until the time the true author submits the patent application, the patent law has a fairly effective (compared to copyright) identification mechanism. However, there are pronounced "white spots" here.

In the patent law the previously mentioned problem of co-authorship is not solved. There are different opinions in the literature about where the boundary of the circle of people directly involved in the discovery goes, and sometimes this circle is very broadly outlined: “At present, substantive law does not take into account the direct relationship between the amount of creative work brought into creating the object patent rights, and the number of co-authors who could bring it” (Maximov, 2019, par. 5, p. 61). This problem is equally acute in science. It is not known how significant the creative (Murzin, 2019a) contribution of a member of the scientific team to this or that achievement must be to claim authorship of the discovery and a share of world fame. For example, in modern astronomy, the preparation of an experiment and the processing of results often take much longer than the actual observations, and more than one astronomer, but a whole team, has long been working on the telescope. If, as a result of the joint efforts of all these people, a new planet of the solar system is discovered, to whom and in what proportions will the Nobel Prize be awarded?

Finally, patent law is not a means to solve the problem of identifying authors of the results of scientific achievements, also because only some of the results of scientific activity fall under the signs of patentable objects. So, in particular, in accordance with the direct indication of paragraph 5 of Article 1350 of the Civil Code of the Russian Federation, discoveries, scientific theories and mathematical methods, rules and methods of games, intellectual or economic activities, as well as decisions consisting only in the presentation of information are excluded from the circle of these objects.

It can be stated that today the task of identifying subjects of scientific achievements cannot be fully accomplished by existing means.

Possible solutions

It is necessary to recall the rather positive experience of the Soviet period, when the results of scientific activity were allocated in a separate group of objects of intellectual rights, subject to special rules. “For a while, a feature of Soviet law was the legal protection of the discovery. Modern Russian law has refused to give special status to a scientific discovery” (Murzin, 2019b, par. 4). Some of the results of scientific activity were also protected by Soviet norms on rationalization proposals (Novikova, 2019), which was only partially offset by modern provisions of the legislation on “know-how” (Lushnikova, 2015). In the context of the ever-growing value and significance of scientific data and the results of scientific activity, this path ceases to seem like a dead end branch of development. Moreover: today's technologies make it possible to avoid many problems that previously seemed insurmountable (cumbersome registries and the length of data entry, bureaucratic procedures during registration, risks of falsification of data in the registry, etc.), due to the advent of digital (primarily cloud) technological solutions to capture scientific achievements, including in dynamics – with the ability to consider intermediate stages and determine the creative contribution of each of the probable co-authors to the creation of the final result. Additional guarantees of the truth of the data may be their distributed storage and the use of technology "blockchain" (or similar).

As for the technical and legal side of the issue, it seems reasonable to use precisely digital methods and means of identification. Of course, the biometric system has its advantages, however, while biometric identification tools are in the infancy, and in addition, coincidences are not excluded in the biometric parameters of different people (Torvald, 1991). In addition, biometric identification is not possible for a legal entity, even if the reality of its existence is recognized in the most anthropomorphic form – for example, according to the organic theory of Otto von Girke. As S. N. Bratus notes, "Gierke recognized in one of his last works that there is only a certain similarity between man and the human union, and that only by analogy can the latter be called an organism" (Bratus, 1950, p. 174). The digital method makes it possible to identify a legal entity as a subject of law (Shelepina, 2017), including in relation to scientific achievements.

Particular examples of modern solutions of this kind can serve as ORCID and DOI – identification systems, respectively, of authors of scientific achievements and digital objects. The sixteen-digit ORCIDs (Structure of the ORCID Identifier, 2020) are uniquely unique and allow tracking in dynamics the scientific achievements of a scientist regardless of spelling (or even change) his name. The task stated by the creators of ORCID “to make transparent and understandable the links between a huge number of scientific projects and the people who implement them” (https://orcid.org/about/what-is-orcid/mission) is generated by the urgent needs of the modern scientific community and meets these needs. The same can be said about the DOI system (Digital Object Identifier) or, in the Russian version, the system of discrete object identifiers (National Standard of the Russian Federation, 2016).