REQUIREMENTS FOR INFORMATION ON THE EXPERIENCES OF e SCIENCE COLLABORATIONS

The development of a clearer picture of the institutional context of collaborative e-Science therefore can be viewed as one of the derivative implications of the recommendations advanced by this Report. Evidently, this entire proposed programme of legal mechanism design will need to be informed by systematic data collection about the informal ways in which disputes among collaborating researchers, and among institutional partners too, actually may be resolved before the parties enter litigation. Corresponding research is necessary about the circumstances in which scientific and technological projects are most frequently delayed, or irremediably disrupted by conflicts involving contractual maters. A multidisciplinary inquiry into the role played by institutional infrastructure factors in the experience of successful (and unsuccessful) e-Science collaborations should be initiated in conjunction with the assessment work that the Board should plan to carry out in regard to the effects of its own work.

The discussion (in section 2.1, above) of the current institutional context of scientific collaboration brought out the comparative paucity of concrete empirical knowledge

concerning the specifics of current individual researchers’ experiences with informal governance arrangements for scientific research collaborations, and a parallel lack of systematic information about the ways that formal legal rules are being utilised by co- operating institutions. As this kind of information that could be gathered as a part of the process recommended by this report it is appropriate to take fuller note of this requirement; and equally of the opportunities that would thereby be opened for social science and legal studies of the changes occurring in the social and economic organisation of contemporary science and engineering research.

First, more information is needed about current practices in planning the institutional structures of e-Science collaborations. In particular, it is important to know the extent to which the working scientists themselves have an input into planning the institutional aspects of those projects, rather than simply specifying the technical requirements. If they only, or even principally, address the technical questions, there is a risk that planning will be on the basis of a “perfect team” assumption – with issues of imperfect team behaviour therefore being left unaddressed. Further, if the actual collaborating agents have little or no role in planning the institutional arrangements, there is the real danger that those arrangements will reflect choices that are at odds with the culture of collaborative research and inimical to its success.

A further question regarding the planning phase of collaborative work is the issue of how, and from whom, the parties to collaborations, particularly those in publicly funded institutions, receive legal advice. Work needs to be done to discover the extent to which this advice is enabling, and the ways in which it creates possibilities for the establishment of individual collaborative projects, rather than simply imposes costs upon them. Empirical studies should be directed to document the extent to which existing collaborations can and do support their institutional arrangements by implementing technical controls upon access, modification and reproduction of data and information. It is as yet quite unclear the extent to which parties to scientific collaborations in academic institutions are using technical

measures to monitor and enforce compliance of member with the rules of participation in a project, although employment of such devices by commercial database providers is well documented. Finally, under this head, it is important to learn whether the rules for the administration of a particular collaboration are simply agreed rules of behaviour, or whether they are built into the very way in which the project is structured.

Second, more needs to be known about the way in which the participants in e-Science collaborations currently use the legal rules that touch upon their projects. This involves a number of issues. For example, when a dispute between collaborators arises, in what way do collaborators invoke the traditional informal norms of their particular scientific community and in what ways do they invoke formal legal rules? Evidence from contractual disputes in the commercial world suggests that formal rules are invoked only rarely, and when they are, it occurs at a point where the relationship among the parties already has become very strained.53 _{It is important to know whether this pattern also holds true in the world of}

collaborative e-Science. Similarly, there is a question regarding the extent to which collaborators allow their relationships to develop as they proceed and the formality or informality with which they vary the agreements supporting their dealings with one another. The experience of commercial lawyers is that even parties with access to sophisticated legal advice can allow a significant divergence to emerge between the formal legal basis of their relationship and the rules upon which it actually operates. This can have unfortunate legal consequences, but it would be surprising if it were not the case in collaborative science.

More generally, there is a need to learn much more than presently is known about the interplay among the technical, social and institutional constraints on e-Science. For one thing, such studies would be of great help in validating a number of the assumptions underpinning the analysis and recommendations of this Report, and could be expected to contribute significantly to the future design of institutional arrangements that would more effectively promote ‘e-collaborations.’ The sort of advisory body whose creation has been recommended here could be charged with the responsibility not only to propose effective legal devices and organisational procedures to facilitate collaborative e-Science, but also to commission on- going social science research that should underlie its work.

53_{And quite often, not even then. In many instances formal legal action is initiated only when one of} the parties reaches a ‘threat point’ imposed by the potential for third party action (e.g. shareholder lawsuits or bankruptcy proceedings).