Chapter Knowledge And Property Draft 090809


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This is a first draft of my work on intellectual property towards my thesis, the ownership of knowledge in higher education in Australia.

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Chapter Knowledge And Property Draft 090809

  1. 1. Tradeable knowledge: the development of intellectual property policies in the 1980s and 1990s Hannah Forsyth Draft 8 August 2009 Introduction Knowledge is not intellectual property. Nevertheless, once the language of intellectual property was widely deployed in Australian universities, the ownership of knowledge was explicitly accomplished. This occurred in the late 1980s and early 1990s, when for reasons explored in this chapter, universities were compelled to develop policies on the allocation of intellectual property. An uneven and disorderly process, policy development took place both specifically – within the narrow confines of legal definitions of intellectual property – and symbolically, entering discourses around the purpose of the university form and the value of the labour within it. That is what this chapter is about. This chapter considers the forces that obliged the universities to transform earlier patent policies into broader policies encompassing the full breadth of intellectual property – and beyond, as we will see. The scramble to control university intellectual property was not confined to the universities themselves. Government departments and centres, as well as the Australian Vice Chancellor’s Committee, were all competing to have the definitive say over the ways that universities regulated the ownership of intellectual property. The guidelines, reports, analyses and requirements they produced are used in this chapter to highlight policy initiatives that compelled university action. They also assist in understanding some of the economic and discursive imperatives to intellectual property policy development in the 1980s and 1990s. These cannot be entirely separated from the other forces compelling increased research commercialisation, the commodification of educational services and changes in university governance and mission priorities. Nevertheless they do provide a new and unique language surrounding the value of knowledge and even, perhaps, the purpose of the university. In addition to the policy framework, a sample of university intellectual property policies are examined in this chapter to determine the issues that university administrators were concerned about in their preparation.1 These policies shaped the 1 The Australian National University, University of Wollongong, Macquarie University, University of New England, Royal Melbourne Institute of Technology (RMIT) and Adelaide University. The Justice French 1
  2. 2. relationships between universities as institutions, the staff they employed, the students they enrolled, visitors contributing to their intellectual community and the increasing numbers of government and industry colleagues they worked with. The actors thus regulated by them, and the knowledge they possessed, became especially important as a result of intellectual property policies. For the language of property made knowledge seem alienable – separable from the knower – and thus more observably tradeable. This sense of trade meant that establishing intellectual property’s owner was paramount. Legally, intellectual property refers to a set of rights temporarily granted to enable commercial exploitation of particular types of products of intellectual labour. It can be a little difficult to define, since it covers quite a disparate set of activities, making it a slippery and yet surprisingly narrow legal concept.2 Some of this difficulty is derived from the vastly different legal histories attached to, say, the development of copyright to protect artistic works, literature and music and the developments of patents and protection for inventions, breeds of plants, trade secrets and computer software.3 McKeogh and Stewart point out that the language of property can lead some to consider the concept of intellectual property to be far broader than it (legally) is: The principal danger…lies in forgetting that the term ‘property’ is merely a conclusory statement and in falling into the trap of assuming that any identifiable ‘thing’ must belong to someone. In the present context this translates into the erroneous belief that all fruits of 4 intellectual activity have some intrinsic claim to be treated as property. This is a ‘mistake’ frequently made, such as the retired academic who asked a state politician if he would please “capture and use my intellectual property,” referring to a substance still inside her head.5 The legal narrowness derives from the fact that knowledge and intellectual property are not equivalent and it is not legally valid to refer to anything kept solely within one’s mind as intellectual property. But the error may not come from the language alone, as this chapter explores: it may also be a result of a desire by universities in the 1980s and 1990s – and perhaps into the present – to make more things ownable than the law of intellectual property provides. judgement of the case of intellectual property ownership UWA v Gray in 2008 also contains many details of the process of intellectual property policy development and implementation by the University of Western Australia in the 1980s and 1990s. This too is used. 2 Staniforth Ricketson, The Law of Intellectual Property (North Ryde: The Law Book Company, 1984), 3. 3 Jill McKeogh and Andrew Stewart, Intellectual Property in Australia (Chatswood NSW: LexisNexus Butterworths, 2004), 3. 4 McKeogh and Stewart, Intellectual Property in Australia, 19. 5 Carrol O'Donnell, Exploiting Australia's Intellectual Property Better (University of Sydney Website, 2007 [cited 18 May 2009]); available from file in author's possession) 2
  3. 3. Why universities developed intellectual property policies The authors of the book Universities and Intellectual Property (an outcome of an Australian Research Council Large Grant6) were law academics from Monash University in Victoria. They describe the process of developing intellectual property regulations at their university in the 1990s – whereupon, to their apparent surprise, they discovered all other universities were similarly shifting from a policy covering patents to one that was more broadly applicable.7 Monotti and Ricketson describe this as a kind of legal awakening by the universities, like realising one has “been speaking prose for over forty years” without knowing.8 Despite this claim, universities did not rumble along for decades and then all of a sudden, collectively, discover that they needed a more complex intellectual property policy as some sort of inevitable consequence of university maturity. The period in which policies were developed is significant. In the previous chapter(s) I have outlined the drivers for universities to explore means to diversify their income sources through research commercialisation. The opinion of many politicians, public servants and members of the public whose voices were clearly heard via Murdoch’s Higher Education Supplement was that if the knowledge universities were producing was any good, someone (other than the government) would be willing to pay for it.9 Universities were increasingly establishing companies to assist in the management, commercialisation and risk-taking inherent in marketing the outcomes of research. The development of intellectual property policies was certainly a part of this commercialising project. Of the sample selected, the Australian National University’s intellectual property policy was formally recognised in 1986. The University of Western Australia’s policy is dated 1996, although discussions regarding a new policy commenced in 1988. This would seem to represent the approximate range of intellectual property policy development – 1986 to 1996. The Australian National University’s policy could reasonably be considered to be at the early end of the spectrum, being before the establishment of the Australian Research Council when protection of intellectual property started to be discussed by policy makers as a responsibility of universities receiving public funding.10 The Australian National University’s 1986 policy was present in the Macquarie University intellectual property 6 Education and Training National Board of Employment, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property," ed. Education and Training National Board of Employment (Canberra: Australian Government Publishing Service, 1995), 9. 7 Ann Louise Monotti and Sam Ricketson, Universities and Intellectual Property: Ownership and Exploitation (Oxford: Oxford University Press, 2003), 10.Para 1.19 8 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation, 9.Para 1.18 9 REF 10 ARC REF 3
  4. 4. file, showing that Macquarie held it as an example during its own policy development process. The University of Western Australia’s slowness in developing a broad intellectual property policy from the earliest discussions in 1988 to implementation in 1996 is not terribly unusual. For instance, the University of New England also has a policy gap between1989 and 1995, when it appears the university left all policy in the hands of its commercialisation company, UNE Partnerships.11 This type of confusion between the roles of the university proper and the commercialisation companies they were establishing coincides with the creation at most universities of a Pro-Vice Chancellor or Deputy Vice-Chancellor (Research). Both the University of Western Australia and Macquarie University created this role at the time of the Dawkins reforms – and others did as well. The role was needed, according to Macquarie University News in 1987, due to the growing workload associated with research management. This workload was seen to be a result of the growing complexity of the policy relationship with Canberra and the administration of an increasingly diverse commercialisation project. 12 Since the senior research role was new, it took some time for universities to establish what the role entailed.13 Combined with the establishment of commercial entities, new research imperatives, a totally new higher education policy framework from Canberra and new organisational structures to contend with, the process of policy making across the system was messy and the policies were influenced by a range of insistent issues. Despite the chaos attached to the emergence of intellectual property policies across the Australian higher education system, the fact that they did so consistently within around a decade points to identifiable causes. Monotti and Ricketson put it down to the emergence of new complexities in the relations of universities to the rest of the world. These complexities, they claimed, were a result of changes in the ways that university research was being conducted.14 University research, as we saw in earlier chapter(s), was being increasingly asked by the Commonwealth government, industry leaders and (arguably) the Higher Education Supplement, to align closer to explicit needs in industry and government. This required university researchers to collaborate with industries and government 11 William Oates, "Re: Request to Access IP Policies 1980-1998 (University Archivist: Personal Communication: Email)," ed. Hannah Forsyth (Sydney: Email, 2009). 12 Anonymous, "Appointment of a Pro-Vice Chancellor (Research)," Macquarie University News, September 1987 No.197 1987. 13 J French, "University of Western Australia v Gray (No 20) [2008] " in FCA 498 CORRIGENDUM 2, ed. Federal Court of Australia (Perth: Federal Court of Australia Western Australia District Registry, 2008). 11 14 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. PAGE 4
  5. 5. departments, to “listen” and “respond”.15 Crucially, it also required universities to seek research funding from more diverse sources. Predictably, some research funding providers now expected to receive a financial return from their investment in knowledge. This was particularly the case for commercially minded organizations whose investment in knowledge was driven by the promise of increased productivity or profit from product development.16 Where research would result in financial gain and where external sponsors were involved, the rights to receive the benefits of such gain were claimed and contested. Universities started to find themselves, argue Monotti and Ricketson, in the position of navigating complexities over ownership.17 These complexities could not be overcome via the old patent policies, according to Monotti and Ricketson, that outlined the responsibilities and rewards of patents to universities and their staff, since so many more players were involved, conducting so many new and different types of research. In order to manage these new relationships and the ownership issues associated with them, new policies were developed, they argue.18 Basically Monotti and Ricketson see a legal problem that resulted in a policy solution, albeit a tricky one. What Monotti and Ricketson are describing is consistent with a massive worldwide shift in the character and purpose of much university-based research – the emergence of what Gibbons and colleagues defined as “Mode 2” research. In the early 1990s, Michael Gibbons and five of his colleagues observed that research in United States and Western European universities had changed substantially since the early 1980s – a set of observations that would equally apply to the Australian system. In a thesis that became both popular and notorious19 a completely new approach to the production of knowledge was put forward as “Mode 2”. Traditional (or “Mode 1”) research was curiosity-driven and based in traditional disciplines. New knowledge emerging from Mode 1 research would find its way into industry and practice through traditional processes: the employment of graduates and the publication of results.20 This linear model for knowledge development and dissemination became complicated in “Mode 2”, which was characterised by a vast expansion of much more fluid networks of people. Mode 2 knowledge production often started with an identifiable application-based problem, involved participants 15 HES REF 16 REF? AVCC magazine Univation 17 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. PAGE 18 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. PAGE 19 Helga Nowotny, Peter Scott, and Michael Gibbons, "Introduction: 'Mode 2' Revisited: The New Production of Knowledge," Minerva 41 (2003): 179. 20 Michael Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies (London: Sage, 1994), 87. 5
  6. 6. from inside and outside the university, from multiple disciplines (leading sometimes to the creation of new ones) and was likely to be accountable for its quality to multiple parties: academic peers, professional organizations, shareholders, stakeholders or the public.21 Gibbons and colleagues said: Knowledge can no longer be regarded as discrete and coherent, its production defined by clear rules and governed by settled routines. Instead, it has become a mixture of theory and 22 practice, abstraction and aggregation, ideas and data. Mode 2 was connected, in these authors’ opinions, to the diversification of mechanisms of transferring knowledge from universities to industry, including commercialisation. This, they felt, would lead to a loss of universities’ reputation for reliability, as commercial interests became inseparable from university-based research. 23 Moreover, as university-based knowledge lost its distinction from commercially derived knowledge, changing labour patterns led to “revolving door” relationships with funding bodies, and questions of the ownership of the intellectual property rights multiplied. 24 The increased focus on intellectual property rights on campuses also gave elevated roles to university lawyers, shifting decisions regarding knowledge production away from collegial, disciplinary processes to more legal and commercial structures. 25 Attempting a more optimistic approach to Mode 2, in 2000 Henry Etzkowitz and Loet Leydesdorff claimed that Mode 2 research was actually the original type of research conducted by universities. Their assertion that commercial research was consistent with the original mission of the university form suggested that Mode 1 was the false prophet, imported with Nineteenth Century institutionalisation processes. As universities regained their (true) focus on their “third mission” of directly contributing to industry and the economy, economic development was becoming as important a legitimising mechanism for university knowledge as contribution to culture. 26 To assist their project of putting a positive spin on this shift in the character of research, 21 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 88. Nowotny, Scott, and Gibbons, "Introduction: 'Mode 2' Revisited: The New Production of Knowledge," 179. 22 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 81. 23 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 88. 24 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 53. 25 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 37. see also Simon Marginson and Mark Considine, The Enterprise University: Power, Governance and Reinvention in Australia (Cambridge: Cambridge University Press, 2000). 26 Henry Etzkowitz and Loet Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," Research Policy 29, no. 2 (2000): 116. 6
  7. 7. Etzkowitz and Leydesdorff proposed a productive metaphor for the new networks between industry, government and universities: the triple helix.27 In another article with different colleagues in the same issue of Research Policy, Etzkowitz claimed that by “deploying” the triple helix metaphor, universities could stop being ivory towers and make contributions that governments could justifiably (that is, justify economically) support financially – bribing their academic readers, in a sense, to deploy the helix metaphor.28 As well as the productive power implied by the analogy to DNA, their triple helix model also suggested to Etzkowitz and Leydesdorff that there was no need to resolve the tensions brought about by combining traditions of disinterested curiosity with profit-motives. Since their metaphorical helix was inherently unstable and therefore (they said) dynamic, the university form need not be too concerned about similar contradictions in its mission.29 The relentless (re)negotiation of intellectual property between parties all now motivated by profit (but to whom profit somehow “means different things”) is simply a part of the productive power of the triple helix, according to Etzkowitz and his colleagues.30 Associated with this shift in the character of research in universities globally, is a (less dramatic, to be sure) shift in ideas associated with authorship. In the same way that the god-professor had been undermined as a central and singular authority by student activism in the 1960s an 1970s, so too had Roland Barthes announced the death of the god-author as the creator of meaning, replaced by the multiplicities supplied by manifold readers.31 The undermining of the legitimising authority of the academic that Lyotard had showed32, combined with (as we saw in previous chapters) their declining status in the pages of the Higher Education Supplement to reduce the gravitas of the academic author. Moreover, these ideas brought to light the reality that authorship as a category had been invented to claim ownership, power and income based on a myth of the individuality of creative genius.33 The reified role of the single author as genius thus disrupted somewhat – though by no means universally or absolutely – the Australian Vice Chancellors, in their advice to 27 Etzkowitz and Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," 111. 28 Henry Etzkowitz et al., "The Future of the University and the University of the Future: Evolution of Ivory Tower to Entrepreneurial Paradigm," Research Policy 29, no. 2 (2000). 29 Etzkowitz and Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," 118-19. 30 Etzkowitz and Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," 118-19. 31 Roland Barthes, "The Death of the Author," in Image Music Text (London: Haroer Collins, 1977). 32 Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledge (University of Minnesota Press, 1984), 37-38. 33 Roger Chartier, "Figures of the Author," in Of Authors and Origins: Essays on Copyright Law, ed. Brad Sherman and Alain Strowel (Oxford: Clarendon Press, 1994), 12-13. Mark Rose, "The Author as Proprietor: Donaldson v Becket and the Genealogy of Modern Authorship," Representations 23 (1988). 7
  8. 8. universities on intellectual property, could legitimately claim that research was almost never a purely individual act. 34 Having established the complicatedness of the question of who was the creator of new, a straightforward resolution presented itself: the university produced it all. At the very least, it could certainly be established in nearly every instance that university-owned resources were “material to the development” of all research.35 This is important, since the content of the university intellectual property policies from the 1986-1996 period suggest that universities did not fear the claims of sponsors, collaborators or government as much as the claims of their own staff. The first university intellectual property policies do not spell out the ownership of intellectual property developed in collaboration with other organizations and nor is much attention given in any of the sample to the ownership of sponsored research. University intellectual property policies all (at least, all in the sample) concentrated on the ownership of intellectual property produced within the university – primarily by staff, but also by students and visitors.36 It is obvious from this focus that universities were keen to stake their claim to the intellectual property produced within them. The same concern was also reflected in the first (1993) Australian Vice Chancellor’s Committee discussion paper on intellectual property, which reads as a how-to guide for universities to claim intellectual property created by their staff.37 This suggests that universities were not developing intellectual property policies in order to manage increasingly complex ownership problems emerging from a Mode 2 research environment. Rather, universities were attempting, through these policies, to harness the substance at the core of their mission and turn it to profitable gain. Of course universities were not alone in this, as the knowledge economy came to be more explicitly recognised as fundamental to late 20th Century development. Arena and Carreras’ 2008 book The Business of Intellectual Property claims: 34 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," (AVCC, 1993). 10 35 Macquarie-University, "Intellectual Property Policy," in Intellectual Property File (Sydney: Macquarie University Archives, 1991). page 36 Australian National University, "Intellectual Property Policy," in The Australian National University Finance Committee File (Canberra: Australian National University Archives, 1986). Macquarie- University, "Intellectual Property Policy." Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy," (Royal Melbourne Institute of Technology Archives, 1993). University of Wollongong, "Intellectual Property Policy," (Wollongong: University of Wollongong Archives, 1988). The University of New England does specify “changes in contractual relations with outside bodies” as one of the reasons for developing the new policy, though the policy itself, like the others, focuses on staff-produced IP (p.21) University-of-New-England, "Intellectual Property Policy," in Intellectual Property Policy File (Armidale: University of New England Archives, 1995). 37 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper." 8
  9. 9. Knowledge is increasingly coming to be recognised as an asset. Through the 1990s and beyond, the field of intellectual asset management has sought to develop theories and 38 practices to capture and harness the knowledge that a firm’s workers create. Universities, like other knowledge-rich industries, were trying to claim knowledge “assets” in order to enhance their financial position. Universities had two immediate and complementary motives to do so. Firstly they were in a desperate situation financially, with funding systematically reduced by the Commonwealth government. Naively, perhaps, they transferred their hope to the exploitation of intellectual property as the mechanism that might liberate them from the poverty imposed by declining public funds. 39 Secondly, just as the new entrepreneurial academic was gaining standing in the Higher Education Supplement, in opposition to an image of lazy, arrogant ivory-tower academics, so universities capable of supporting themselves were gaining credibility in the sector. This approach was not just an ivory tower versus entrepreneurial public image: public policy makers were starting to talk about financial return as a reasonable expectation of the public’s investment in universities.40 A review of research policy in the late 1980s was informed by comments suggesting that universities were failing to return to the public the real value of the knowledge produced as a result of its funding.41 Development of commercially viable intellectual property seemed, in this discourse, to be the logical outcome, once funding became attached to the language of investment. From within this logic, where income was not being derived from such an investment, the public could question whether the knowledge was worth their investment at all.42 As such, universities were almost held to ransom over intellectual property: they were to produce commercially viable knowledge for profit, or risk losing whatever remaining public funding they had for research. Even where this more extreme position was not held, a new sense of financial reciprocity as a type of public-funding justice suggested that if anyone was deriving a 38 Christopher M Arena and Eduardo M Carreras, The Business of Intellectual Property (Oxford: Oxford University Press, 2008). 29 39 Elizabeth Garnsey, "The Entrepreneurial University: The Idea and Its Critics," in How Universities Promote Economic Growth, ed. Kaoru Nabeshima (Washington DC: The World Bank, 2007), 229. 40 Technology and Commerce Department of Industry, "Bringing the Market to Bear on Research. Report of the Task Force on the Commercialisation on Research," ed. Technology and Commerce Department of Industry (Canberra: Government Publishing Service, 1991). page 41 Education and Training National Board of Employment, "Report of the Committee to Review Higher Education Research Policy," ed. Education and Training Department of Employment (Canberra: 1989). page 42 Prime Minister's Science and Engineering Council (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview," ed. Department of Prime Minister and Cabinet Office of the Chief Scientist (Canberra: Australian Government Publishing Service, 1993). page 9
  10. 10. profit from university-based knowledge it was only fair to the public to reinvest some of that profit in universities. The University of Wollongong 1988 policy said: Council has an obligation, under government policy, to seek reimbursement for costs which have been incurred in research and development leading to a discovery from which profit may be derived, and also to direct some of the profit (if any) to purposes for which the University 43 has been established. This “obligation” also meant that universities had a responsibility to promote profit- making research in a way previously unthought of. Again, Wollongong’s policies are a clear example. The 1988 policy – “Council wishes to encourage … invention” – contrasts markedly with the 1979 Patent policy it replaced, which said: Although university research is not directed specifically towards patentable inventions, there can arise in the course of research, inventions which in the interests of the public, the 44 University and the inventor/s, should be patented. This suggests a shift in the university’s sense of its responsibility to the public. Initially seen as using intellectual property when it is the best way of making research available to the public, a decade later Wollongong University, responding to government policy, saw it as their responsibility to recoup the costs the public invested. One of the issues here, though, was where these recouped costs should be directed and universities, with some justification, started to fear that the Commonwealth would claim income derived from university intellectual property. The Royal Melbourne Institute of Technology Intellectual Property Committee, considering the joint advice of the Australian Research Council and the Higher Education Council in 1995 noted that the input of the Australian Vice Chancellors, while represented among the report’s authors, was not evident in the report itself. This was important because the Australian Vice Chancellors’ Committee was seen as the protector of the universities. Failure to take into account the Vice Chancellors’ views led the Royal Melbourne Institute of Technology committee to express: …caution over the proposed introduction of intellectual property agreement requirements which could presage an increasing attempt by DEET or the ARC to control and define university 45 intellectual property. By 1995 universities like The Royal Melbourne Institute of Technology had good reason to express concern about government interference in intellectual property. In the previous six years all of the Commonwealth acronyms had had something to say 43 Wollongong, "Intellectual Property Policy." 44 University of Wollongong, "Patents Policy," (Wollongong: University of Wollongong Archives, 1979). 45 Royal-Melbourne-Institute-of-Technology, "Intellectual Property Committee Minutes of Meeting 6/95: Friday 13 October``," in Intellectual Property File (Melbourne: RMIT ARchives, 1995). 10
  11. 11. about it: reports on the commercialisation of intellectual property came from ARC (Australian Research Council), HEC (Higher Education Council), PMSEIC (Prime Minister’s Science Engineering and Innovation Council), NBEET (Dawkins’ super- department, the National Board of Employment, Education and Training) and the DITC (Department of Industry, Technology and Commerce). They all started with a review with its own acronym: HERP, the review of Higher Education Research Policy. The National Board, the Australian Research Council, the Department of Industry and the Australian Vice Chancellors – and the control of knowledge As we have seen, John Dawkins was instated as Minister for Education in 1987, and implemented his Higher Education reforms in 1988, including the establishment of the Australian Research Council. In January 1989, the Australian Research Council released its first advice to applicants for research funding, for grants for 1990. In this advice, the Council required that if an “invention or process improvement” arises, the grant recipient or their university must protect the “industrial property in that invention”. Then, at their own expense, they may apply for a patent, at which point they must notify the Commonwealth. Then: If the grantee and the institution do not wish to apply for a … Patent…the grantee and the institution shall, at the request of the Commonwealth, assign to the Commonwealth the 46 right…and no amount will be payable by the Commonwealth for any such assignment. This was a major deviation from the Patents policy and practices of most institutions where, as a matter of tradition, it was understood that the researcher could choose to publish or in other ways make public all research results, and thereby release to the public (and thus choose not to protect) any invention or knowledge. They could also choose to patent if they wished, but the right to choose belonged to the researcher.47 These new research grants would place a requirement on researchers to protect the outcomes of research if they were patentable. Universities were most likely more concerned about the apparent wish of the Commonwealth to claim ownership of any intellectual property than the removal of the choice to publish or patent. The requirement alone would have required universities to review and revise their more liberal existing patents policies. The Royal Melbourne Institute of Technology concern regarding government interference reflects this concern. 46 Australian Research Council, "Advice and Instructions to Applicants for 1990 Research Grants," ed. Education and Training Department of Employment (Canberra: Government Publishing Service, 1989), 27. 47 REF the university policies and letters that say this. 11
  12. 12. In April of the same year, Purple Circle member Robert HT Smith – now head of Dawkins’ National Board of Employment, Education and Training – chaired a review of Higher Education Research Policy. This review focused on enhancing the performance of universities and increasing research output and on establishing and strengthening financial and innovation links between higher education research and industry.48 Then, in June 1989, the Australian Research Council released a report On the Public Funding of Research, making a case for the role of public funding of basic research especially (strengthening its own position) and recommending a review of the whole system of innovation to identify any gaps in the development from basic research to product development. 49 In December 1989 Prime Minister Bob Hawke asked the Australian Science and Technology Council how one might go about setting national directions for research “so that Australia’s research effort will best support the Government’s national policy objectives”. 50 The resulting 1990 report argued that research was not the creative and unpredictable process academics had claimed, and that new ideas about the character of the discovery process justified government interference in the types of knowledge pursued by universities: There has been a significant rethinking of the long-held belief that discoveries are essentially unpredictable… Globally there is now much greater awareness that there must be conscious 51 decision-making about where to put the national emphasis in research. In May 1990, a National Board of Employment, Education and Training committee chaired by head of the Australian Research Council (and another Purple Circle member) Don Aitkin claimed that more of the research funding for universities should be funnelled through the Australian Research Council to be redistributed competitively, which he said would produce better research.52 In 1991, the Department of Industry, Technology and Commerce released a Report of the Task Force on the Commercialisation of Research from (known at the time as the Block Report, chaired by commercial economist, Ray Block). This report advocated a market-driven focus on research commercialisation claiming that 48 National Board of Employment, "Report of the Committee to Review Higher Education Research Policy." 49 Australian Research Council, "On the Public Funding of Research," ed. Education and Training Department of Employment (Canberra: Government Publishing Service, 1989). 50 Australian Science and Technology Council, "Setting Directions for Australian Research," ed. Education and Training National Board of Employment (Canberra: Government Publishing Service, 1990), iii. 51 Council, "Setting Directions for Australian Research," xi. 52 Education and Training National Board of Employment, "The Transfer of Operating Grant Funds to Competitive Schemes after 1991: Advice of the Nbeet and Its Arc and Hec," ed. Education and Training National Board of Employment (Canberra: Government Publishing 1990). 12
  13. 13. market-pull, rather than technology-push, was a more successful strategy for research commercialisation. This was not just a preferred business methodology for the task force members, but was a subtle argument that would see market needs drive national research priorities: The task force believed that Australia cannot afford to let technology drive our business direction; rather, the market must drive the direction of our business growth and innovation behaviour…unless research has relevance to a market it will have no commercial potential. Indeed, the task is perhaps more aptly described as how to bring the market to bear on 53 research rather than how to commercialise research. When combined with the strategic decisions of the Australian Research Council, this approach would certainly have taken the right to choose research activities away from academics – a systematic undermining of academic freedom. The result would have explicitly shifted the control of knowledge to the market. The Australian Research Council in 1992 took the Block Report and a similar document on the commercialisation of Medical Research (known as the Coghlan Report) and provided comment on their recommendations to the National Board of Employment, Education and Training, who then passed these to the Minister. Despite wanting to encourage university-industry links, The Australian Research Council only gave qualified support to the reviews’ recommendations. In relation to the recommendation of targets for industry funding, they said: Universities should be free to determine the extent of their links with industry, again acknowledging that, in most instances, this [Block Report recommendation] target level of 54 commitment would already be exceeded. The Australian Research Council, consistent with the neo-liberalism with which it was formed, preferred financial incentives to regulatory controls. The same applied to externally funded chairs, where: Encouragement of further such liaison [appointment of industry-funded chairs] was supported by the board, which emphasised, however, that specific institutional appointments should not 55 be dictated by government. While appearing, in this way, to support institutional autonomy and thus academic freedom, the Australian Research Council gave universities choice – it just limited the space in which they could choose. According to the Council, Universities should be 53 Department of Industry, "Bringing the Market to Bear on Research. Report of the Task Force on the Commercialisation on Research." 54 Education and Training National Board of Employment, "Commercialisation of Research: Advice of the National Board of Employment, Education and Training and Its Australian Research Council," ed. Education and Training National Board of Employment (Canberra: Government Publishing Service, 1992), 2. 55 National Board of Employment, "Commercialisation of Research: Advice of the National Board of Employment, Education and Training and Its Australian Research Council," 2. 13
  14. 14. able to choose their own percentage of commercialisation and choose who would be appointed to industry-funded staff positions. But they could not question the fact or validity of externally funded appointments and research commercialisation: the Australian Research Council would use its funding power to encourage these. Encouragement was certainly a euphemism. Since recurrent funding had been reallocated to competitive funding through the research council, to be distributed partially on the basis of alignment to national priorities, funding functioned as a form of regulation. The Australian Research Council could well afford to specify instances where institutional autonomy should prevail, for their control of university-based knowledge had rapidly become substantial. Intellectual property took over the research policy agenda in 1993, when the Prime Minister’s Science, Engineering and Innovation Council published The Role of Intellectual Property in Innovation. This report pointed out that: The world intellectual property market represents $600 billion of industrial products and 56 processes annually. It would have only taken this line to prompt action, which was undoubtedly its intent. In the context it would have sounded like serious research world-wide was producing items of sufficient value to consumers and industry to produce this vast trade. A description of the cultural characteristics and influences of intellectual property from the late 1990s suggests the type of products and processes at work in this intellectual property market, however: Our children sleep in Barney® sheets, eat off Aladdin placemats, drink liquids they know only by brand name in plastic cups encircled by Disney characters (protected by copyright laws and character merchandising agreements)…The accomplishment of this expropriation of surplus signifying value if effected by intellectual property laws that restrict the right to reproduce these 57 publicly identifiable texts to those who are deemed to “own” them. Imagining a very different market system to this, one where shares of $600 billion justly find their way into factories of science from who knows where (since children would be unlikely to eat off science-labelled placemats), the report went on to designate lack of intellectual property protection as the reason for current lack of income. The report said “worthwhile participation in this market will often be determined by whether or not there is enforceable intellectual property protection”. Such protection was likened to a fence: 56 (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview," 9. 57 Rosemary J Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law, ed. Stanley Fish and Fredric Jameson, Post-Contemporary Interventions (Durham and London: Duke University Press, 1998). 53 14
  15. 15. Laws for the protection of intellectual property…provide a protective barrier against third parties who seek to appropriate the work of the innovator and take a free ride on that work. Without this barrier innovation is like a crop in an unfenced field, free to be grazed by competitors who 58 have made no contribution to its cultivation. This passage – written for the ‘legal perspectives’ part of the report59 – shows the new way the Prime Minister’s Council was thinking about university-based knowledge. The academic researcher, for one, was now an “innovator”, applying new knowledge to useful product development. The results of their labour were thus inherently commercial. The report’s readers were to understand this, because other people (“third parties”) were “competitors”. What positioned them as competitors was their role in relation to the production of knowledge: they “made no contribution to its cultivation”. This reconfigured the roles of the public, the national economy and any other “third parties” from their position as beneficiaries of the new knowledge universities produced to being knowledge consumers. Leaving knowledge “unfenced” gave those consumers a “free ride”, which in this configuration of university-based knowledge, was unfair to knowledge producers. This language shows that the primary concern of the legal perspective in guiding intellectual property policy development was commercial. This is probably because the framework in which intellectual property exists is a commercial one.60 What is important about the commercial, competitive and commodified nature of knowledge when configured by the Prime Minister’s Council as intellectual property, is the relationship of knowledge to the nation and the economy. Commodified knowledge is not necessarily the same as knowledge that enhances the national economy, even if both value money over other types of good. The “third party” that the report described as having not contributed to the cultivation of research’s “crop” may well be the public. The free and unfettered entry of knowledge to the public in many instances will contribute to economic growth – or some other public good – via, for example, more efficient practices. The “free riders” on knowledge are often needed to ensure innovation has its desired outcome. Positioning research outcomes as a commodity to be traded competitively could delay or limit the benefits of research. A competitive environment where knowledge was a commodity – as the Prime Minister’s Council clearly described innovation protected as intellectual 58 (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview," 7. 59 Prime Minister's Science and Engineering Council (PMSEC), "The Role of Intellectual Property in Innovation: Perspectives," ed. Department of Prime Minister and Cabinet Office of the Chief Scientist (Canberra: Australian Government Publishing Service, 1993). “Legal Perspectives” pp. 59-85 60 Corynne McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property (Cambridge Massachusetts: Harvard University Press, 2001). page 15
  16. 16. property – would be concerned first for the financial benefit owed to the knowledge producer rather than the benefit (which may be economic) of the knowledge itself. This made the language of commodification somewhat contradictory to the economic goals of the Commonwealth for higher education in the late 1980s and 1990s. Busily trying to encourage the universities to make their own money on the one hand, they sought in the same action to impede the flow of the knowledge they hoped would grow the economy. In order to reimburse the public a little, the public would be deprived of research that might enhance its social and economic well-being. The exception to this contradiction was in patented invention, where protection was normally the best way of realising the benefits new knowledge. But universities had long recognised this, as the Wollongong patent policy explained so clearly, and there would have been no need for widespread policy change had a preoccupation with invention only been the case. Government and, increasingly, universities themselves, were concerned to expand the income derived from the production of knowledge and thus needed to expand their policies to encompass intellectual property in its widest sense. Having received the Prime Minister’s Council report in 1993, the new education Minister, Simon Crean, asked The Australian Research and Higher Education Councils to devise ways of raising awareness about intellectual property – in other words, ways of encouraging universities to exploit more of it.61 This request led to the 1995 document, Maximising the Benefits: Joint ARC/HEC Advice on Intellectual Property that the Royal Melbourne Institute of Technology intellectual property committee was so cautious about. Their caution was framed by the Australian Vice Chancellors’ Committee discussion paper from 1993 and it is clear from the minutes that the committee considered the Vice-Chancellors to be a more trustworthy source of guidance than the potentially self-interested Commonwealth. This makes sense, since the Australian Vice Chancellors’ Committee was the universities’ own body. The only surprising aspect of this apparent opposition between government advice and the recommendations of the Australian Vice-Chancellors, is that both seem to have been authored by the same person. The Vice-Chancellors’ Committee 1993 Discussion Paper was signed by the Committee’s president, Robert HT Smith, former head of the National Board of Employment, Education and Training and Purple Circle author of the 1989 Review of Higher Education Policy. 61 National Board of Employment, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." page 16
  17. 17. Indeed, as might be expected under Smith, the Australian Vice-Chancellor’s Committee discussion paper reflected government sentiments. Several pages are devoted to the rationale for universities to be concerned with the protection of intellectual property and a theme, with some variations, was that it was in the interests of institutions to ensure that: Financial return is obtained from activities which have potential for commercial exploitation in 62 order to lessen the contribution from public funds Through the judicious protection of intellectual property, universities were admonished to seek an “appropriate return for the use of facilities”, to provide incentives for staff to commercialise research (including commercialisation as performance criteria) all of which would somehow increase institutional accountability for the use of public funds, encourage the furtherance of “knowledge for its own sake” and foster esprit de corps in the institution. 63 None of this would be possible, the discussion paper warned, without institutional ownership, because ownership was the determinant of control: Ownership enables an institution to exercise control over decision-making relevant to the 64 subject matter. This control, traditionally in the hands of academic experts under traditions of academic freedom, could have been something that institutional leaders did not feel entirely comfortable assuming. For these doubters, the discussion paper offered a threat: It is possible for an institution to be faced with considerable liabilities in respect of intellectual property with which it is associated but over which it has not exercised a great deal of control. It may not be easy to disassociate itself if problems arise and it is suggested that it is better to 65 exercise prudent control from the outset. The Australian Vice Chancellors’ Committee discussion paper, however, was not primarily a polemical piece of work seeking to persuade universities to protect knowledge from competitors. Its contrast to government documents is that it gave pragmatic advice to institutions so they may ensure institutional ownership in as many cases as possible. This was not easy, according to the document, because the legal status quo (from the theory attaching property to labour, reaping to sowing) is 62 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 9. 63 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 7-8. 64 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 29. 65 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 29. 17
  18. 18. that knowledge “naturally” belongs to the person who produced it.66 The claims of an employer under commercial conditions could be somewhat difficult to make and this was even more the case in universities, since academic staff were not, as a matter of tradition, quite like normal employees. Academic work and its relationship to knowledge was not traditionally a matter of discovery in exchange for salary in the same way that commercial research and development had been. The traditions of membership in a community of scholars and of collegial forms of governance, then, made it all the more difficult for universities to claim ownership as an employer over the intellectual property produced by its members. The Australian Vice Chancellors, therefore, offered a variety of possibilities for university intellectual property policies, to cover both corporate and collegial models of governance. To further support institutions, the discussion paper also provided a range of arguments for why the intellectual property produced by academic staff should belong to the university. These arguments did not form one coherent thesis, but were designed for institutions to cherry-pick as needed, saying: Whatever factors are used, they should be articulated as a foundation for policy and thought 67 through to enable them to be used effectively in any given situation. The arguments given included that the institution deserved a return, if it was possible, on the use of its equipment; that building on the base of pre-existing intellectual property gave the university some right to commercial benefits; and the difficulty of extricating individual authorship and invention from the environment in which they were conducted.68 These were added to the imperatives to ensure someone else did not profit for free from the university’s work, and that society received a return on public investment. Furthermore, just as the Commonwealth claimed that university research priorities should align to national priorities, so, according to the Australian Vice-Chancellors, should individual academic research align to institutional objectives: Control is exercised over the development of intellectual property to ensure that programs of 69 research and teaching comply with institutional policies and objectives. The ownership of intellectual property was not only a question of commercial gain, but was also an attempt to resolve the question of the control of the production of knowledge. 66 Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law. 219 67 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 10. 68 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 9-10. 69 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 9. 18
  19. 19. The Australian Research Council was explicit in their belief that research priorities should enhance the income derived from university knowledge production. The title, Maximising the Benefits, of the 1995 joint Australian Research and Higher Education Councils advice to the National Board of Employment, Education and Training, tells of this priority. By this, they meant setting research priorities and developing a policy framework that would maximise the financial benefits of research through commercialisation, which – by lessening the taxpayer’s burden, they assumed would maximise knowledge’s social benefits too.70 50% of university-based research, the report said, was classified as either ‘strategic’ or ‘applied’ “and therefore could potentially lead to commercial outcomes.71 This belief that strategic and applied research was all potentially commercialisable shows how extensively government thought intellectual property policy development might augment universities’ income. The report recommended raising awareness of intellectual property and its management throughout institutions as a part of promoting the maximisation project and to encourage collaboration with industry.72 It also recommended that a condition for the award of Australian Research Council grants be that institutions have an intellectual property policy that has 73 …as one of their aims the maximisation to Australia of the benefits arising from research. The perceived need for education of academic staff in intellectual property arose from the reports’ advocacy of what they called the Cambridge model of intellectual property management. The appeal of this model, according to the report, was that the management of intellectual property was linked to individual staff entrepreneurial behaviour, which was rewarded as a part of their academic work. It did this by opening up the scope of what academic work was considered to be, removing restrictions on outside, commercial work. The integrity of traditional academic work was maintained, claimed the report, by the pressure of expectations from students and colleagues rather than by workload regulation. Probably the element that had the Royal Melbourne Institute of Technology so concerned, however, was that this Cambridge model did not automatically invest the ownership of intellectual property in the institution, for it was this that was contrary to the discussion promoted by the Australian Vice Chancellors. Instead, in the Cambridge model, ownership was signed over voluntarily, if at all, to the university’s commercial arm by individual academics. 70 Australian Research Council and Higher Education Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property," ed. Education and Training National Board of Employment (Canberra: Government Publishing Service, 1995). page 71 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property," 2. 72 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property.", 21, 23 73 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." 11 19
  20. 20. The Cambridge model connected commercial activities to academic freedom – that is, academics were free to develop their knowledge along commercial as well as non-commercial lines as they saw fit. That university encouraged commercialisation, not by regulation, but by openness, allowing commercialisation’s inherent incentive act as the driver for researcher behaviour.74 The alignment of this model to the neo- liberal faith is obvious. For university intellectual property committees, however, the potential for decentralised (lack of) control over this new theoretically valuable knowledge lode was threatening. Moreover trust, between government and universities, was at a low point, and the likelihood of institutions electing to follow the advice of the Australian Vice Chancellors was especially high. What did the IP Policies have in them and why? Consistent with the Australian Vice-Chancellors’ discussion paper, each of the sample universities claimed all of the intellectual property produced by academic staff in the course of their duties as employees of the university (see Table below). The wording of this was quite variable. It could refer to intellectual property that arose (as if by accident) during their work, or to intellectual property that was produced by originators using a language of agency and intent. The 1986 policy of the Australian National University was most cautious about this issue, specifying: The whole of the professional time of an academic staff member is required to be devoted to the performance of the duties of office of that staff member. Thus, any intellectual property developed by staff members in the performance of the duties of their office belongs to the 75 university. Academic staff were thus expected to have no intellectual or inventive life beyond their academic duties. This clause would suggest the university could claim ownership over patent rights to an invention made in the course of an academic’s hobby, even if unrelated to their academic field, since all professional time (which income, the policy implies, indicates) belonged to the university. General staff were different: In contrast to academic staff members, general staff members have fixed times of working: however, any intellectual property developed by them in the course of their employment, or 76 using resources and facilities provided by the University, also belongs to the University. Other universities did not make this distinction, generally preferring to claim any property arising from work in the university, whether or not staff were specifically employed to produce it. Macquarie University claimed intellectual property produced 74 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." 7-10 75 University, "Intellectual Property Policy." 76 University, "Intellectual Property Policy." 20
  21. 21. by academic and non-academic staff equally but most policies failed to make any distinction between staff types at all, clearly considering their employment sufficient reason for claiming all of the intellectual property they produced. Half of the sample policies claimed all intellectual property produced by students, the remainder offering students the option to assign their intellectual property if needed (for example, if the student wished the university to assist in commercialisation). Macquarie University, despite documented advice that it may infringe their legal rights 77, claimed student intellectual property as a condition of enrolment – a clause suggested in the Australian Vice-Chancellors’ discussion paper. 78 Those universities that did not claim student-produced intellectual property made special provision to negotiate ownership with students in particular instances, such as when students were working as a part of a team including staff and, from the team, commercialisable research was likely to emerge.79 Two-thirds of the sample policies required staff to report commercialisable research to a central body – normally an intellectual property committee or the Pro-Vice- Chancellor (Research). One policy did not specify whether staff were compelled to report such research but another – The Royal Melbourne Institute of Technology – specifically stated that staff were under no obligation to report commercialisable research unless they wished to pursue commercial possibilities. That policy also gave financial incentives to report such research, but the committee considered it to be a matter of academic freedom that staff be granted the ability to choose. 80 The fact that such a choice contravened the requirements of the Australian Research Council’s grants may have reflected the Royal Melbourne Institute of Technology intellectual property committee’s generally mutinous attitude towards the Commonwealth government. The University of New England, while claiming all intellectual property and requiring staff to report and assist in the commercialisation of research, narrowed their definition of the intellectual property they claimed to quite narrow terms.81 This made it paradoxically possible for staff to own some intellectual 77 Macquarie-University, "Extract from Council Minutes of the Meeting Held on Friday 23 August 1991," in File P37 Intellectual Property (Sydney: Macquarie University Archives, 1991). 78 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper." page 79 University-of-New-England, "Intellectual Property Policy." 80 Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy." 81 Generally this intellectual property (unique among the policies) is defined as research outputs that the university had substantial (and special) contribution to, either by internal grants or significant additional resources. University-of-New-England, "Intellectual Property Policy." 23. This contrasts markedly with the claims of the later 2007 policy, which is quite expansive. University-of-New-England, "Knowledge Assets and Intellectual Property Policy Http://Www.Une.Edu.Au/Policies/Pdf/Knowledgeassets&Intellectualproperty.Pdf [Retrieved 28 July 2009]," (Armidale: University of New England, 2007). 21
  22. 22. property. To accommodate this, the policy made space for both university and staff to use intellectual property owned by the other without cost or application.82 University Policy Staff Required Student Visitor Collaborator Year to Report or Grant body Australian National 1986 University claimed Yes. University University Not specified 83 University all IP claimed. claimed. Adelaide University 1989 University claimed Unclear Not Claimed 1993 policy on 84 all IP from the claimed. substantial research 85 86 policy ownership contracts shows University would 87 negotiate 89 Macquarie 1990 University claimed Yes University Not University 91 University all IP but waived claimed as specified claimed all traditional condition 88 scholarship enrolment 90 93 University of New 1995 University claimed Yes Not Not Not specified 92 94 England some IP claimed specified RMIT 1995 University claimed No, but Not Not Not specified 95 96 all IP financial claimed. specified incentives in place 98 101 UWA 1996 University claimed Yes, but. University Not Not specified 82 University-of-New-England, "Intellectual Property Policy." 23 83 The Australian National University did not claim traditional scholarly output. 84 University of Adelaide claimed all IP produced within the university and a proportion of staff IP produced when on study leave or secondment at another institution. It did not claim IP of part-time staff for work done outside of university duties. (Adelaide 1989) and not less than one half of IP of honorary or unpaid staff, all surviving the termination of employment 85 The University of Adelaide 1989 policy pointed out that 86 University of Adelaide claimed one quarter of IP of visitors from research conducted while visiting Adelaide on leave from another university (Adelaide 1989) 87 Adelaide University amended, in 1993, its policy on Outside research grants, contracts and consultancies, which included items that other universities included in their IP policy. 88 Macquarie University normally waived all right to traditional scholarly output (MQ 1990) 89 Macquarie policy requires immediate reporting for potentially patentable research (MQ 1990) 90 Macquarie university made student assignment of IP rights to the university a condition of their enrolment (MQ 1990) In 1991 it was pointed out that this “may be at variance with what is considered to be the individual’s rights at law” (MQ Minutes Council Meeting 23 August 1991). However, the policy remained until a much later policy was approved (post-2000) 91 Macquarie university policy was to not normally sign research contracts unless all IP assigned to it. (MQ 1990) 92 The University of New England claimed staff IP when it had made a specific financial or resource contribution; if it was patented; if it was course material; if software etc. All other IP belonged to the originator who was required to grant the university a royalty-free licence to use it. (UNE 1995) 93 (UNE 1995) Required to report patentable or comercialisable research 94 (UNE) Except in working with “a particular” supervisor who may require the student to assign IP. 95 Royal Melbourne Institute of Technology defined IP more broadly than other universities, as “any confidential information or any rights resulting from intellectual activity”. RMIT also specified that it would own copyright only when net income from copyright exceeds $15,000 in any calendar year. (RMIT 1995) 96 The RMIT 1995 policy did make provision for owning work using considerable quantities of the university’s pre-exiting IP or working in collaboration with staff. 22
  23. 23. 97 99 100 all IP claimed specified We can see, then, that the policies were concerned with the ownership of intellectual property emerging from labour conducted within universities. These policies did not have any of the characteristics we would expect if they were a result, as Monotti and Ricketson claimed, of more complex relationships with collaborators and funding bodies. 102 Of the sample intellectual property policies, only Macquarie University specified the ownership of intellectual property derived from collaborative or externally funded research.103 The contents of the policies suggest that if universities feared the claims of external bodies over intellectual property produced by staff, that fear was most likely directed at the Commonwealth. Since the Australian Research Council, as we have seen, had given some indications that it might be interested in exploiting university research for its own financial gain this was probably not surprising. The best defence for the universities was to ensure that the efforts of its staff belonged to the institution, not the public. In order to underline this, universities emphasised the position of academics as employees – as in any other knowledge industry – rather than as members, as in the traditional collegial sense. All of the sample policies relied on the legal obligation of academic staff as employees for the ownership of intellectual property. The difficulty with this approach was that it was essential that the intellectual property produced must be a result of work that as firmly within the duties of the employee for the employer to own it.104 This difficulty would have been avoided had universities followed the “Cambridge model” that the Australian Research Council suggested, since although they would have had no necessary obligation to assign intellectual property rights to the 97 The University of Western Australia did not claim ownership over copyright, except for computer programs. This is the equivalent of not claiming traditional scholarly output. (UWA v Gray, 2008, pp46- 47). The UWA v Gray judgment found in 2008 that the University of Western Australia had no right to claim all IP of a staff member and that this (1996) policy was invalid in that respect. 98 The UWA v Gray case found that while there had been a requirement to report there had not been a functioning mechanism to do so 99 The segments of the 1996 policy reproduced in the UWA v Gray judgement suggest the policy did not differentiate between student and staff originators (see pp. 45-48) 100 Not specified in the segments replicated in UWA v Gray. Specification in original policy unknown. 101 Not specified in the segments replicated in UWA v Gray. Specification in original policy unknown. 102 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. page 103 This does not need to imply that Macquarie was uniquely positioned to care about this nor were they likely to be the only university to be concerned. The Australian Vice-Chancellors published guidelines on the acceptance of research contracts, which, according to the Macquarie file, informed their intellectual property policy. The University of Adelaide also discussed the ownership of intellectual property derived from these conditions, but in a different policy (also with much more flexibility than Macquarie). Australian-Vice-Chancellor's-Committee, "Conditions of Acceptance of Research Contracts (Draft)," in File P37 Intellectual Property (Sydney: Macquarie University Archives, 1989). 104 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper." Page See also French, "University of Western Australia v Gray (No 20) [2008] ". page 23
  24. 24. university, staff would have had substantial incentives to do so. However, universities obviously preferred the certainty attached to employee obligation since the policies uniformly rely on this mechanism as the basis for their claim. The 1993 Australian Vice Chancellors’ discussion paper pointed to the potential difficulty in claiming the intellectual property of staff of this basis: It is not always clear whether the activity which produces the property is one which comes within the terms of the contract of employment. It is difficult to determine whether the property 105 is produced in the institutional employer’s time or in the staff member’s time. This explains why the Australian National University was so careful to claim everything an academic staff member ever did and indeed most policies attempt to be similarly expansive. The diversity of activities in university research made it very difficult to specifically define the type of duty that might lead to the production of intellectual property. Furthermore, despite the best efforts of the Prime Minister’s Science and Engineering Council, even potentially commercialisable research continued to be unpredictable, making it just as impossible to predict in a contract of employment. So, universities chose to develop expansive intellectual property policies, claiming all intellectual property of all staff. Traditional scholarly outputs (publications) were normally excluded either from ownership by the institution or the institution stated that it would not assert its rights in relation to copyright of such work.106 However, the logic in many university intellectual property policies was derived from an apparent need to firmly assert ownership over all intellectual property so that any negotiation functions from a position of strength: The ownership of intellectual property created in the course of employment by the University, 107 and hence the sole right to use such intellectual property, belongs to the university. The approach of claiming all intellectual property and returning it (or the income from it) to staff as a matter of generosity caused a great deal of debate in the United States. 108 The claims of the American Association of University Professors were based on what McSherry calls the “academic exception”, which derives from the contrast between typical work-for-hire under close managerial direction, explicitly for an employer and academic work that is not under such direct guidance: The faculty member rather than the institution determines the subject matter, the intellectual 109 approach and direction, and the conclusions. This is the very essence of academic freedom. 105 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 10. 106 policies 107 University, "Intellectual Property Policy." p6 108 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. page 109 American Association of University Professors (1999), cited in McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 24
  25. 25. The claim over intellectual property in all of the sample policies from 1986-1996 confirm the master-servant relationship – the academic as employee – that had caused so much controversy in the Orr case in the 1950s.110 In so doing, it also reduced the differentiation of academic work from other types of labour. Corynne McSherry discusses the collision of values when the logic of the market economy (which informs intellectual property law) is used to regulate universities, traditionally characterised by gift economy values. The gift economy, she claims, was based on the guild-like structure of academia.111 In this guild structure, academic staff were members of a community of scholars, which, as Eric Ashby showed, was a privilege that carried responsibility to the university body, resembling a monastic community.112 Universities obviously positioned academic staff as employees in order to claim legal ownership of intellectual property in a similar way to commercial research and development organizations. It is worth briefly considering the character of this gift economy, which McSherry shows is not as much utopian community as economic system, but with a non- market focus. Marcel Mauss’ work on the gift consistently demonstrated the way gifts function in an alternative economy.113 Gifts, imbued with the characteristics of the giver, are an obligation in a complex social system of exchange.114 Publication, for instance, is an obligatory gift given by the knower, and the system of peer review is also evidence of gift-economy structures. McSherry shows the way authorship credit in multi-author works, is informed by gift traditions, awarding authorship to supervising staff who may not in fact contribute to a work and denying it to non- academic laboratory staff who may. Authorship credit shows the gift economy’s capacity to reproduce hierarchical standing – a standing that is also based on ownership. Authorship, as legal theorists point out (among other things 115), functions 110 R.H. Thorp and K. Buckley, "Report on a Visit to the Tasmanian Association," Vestes 1, no. 5 (1958). 111 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 70-71 112 Eric Ashby, Masters and Scholars: Reflections of the Rights and Responsibilities of Students, The Whidden Lectures for 1970 (London: Oxford University Press, 1970). Also Jaroslav Pelikan, The Idea of the University: A Reexamination (New Haven: Yale University Press, 1992). pages 113 Marcel Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies, trans. Ian Cunnison (London: Cohen & West, 1954). 114 Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies. Page McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 75 115 Foucault argued that authorship was a mechanism for identifying and punishing the ‘author’ of transgressive discourse. Michel Foucault, "What Is an Author," in Language, Counter-Memory, Practice : Selected Essays and Interviews, ed. Donald F. Bouchard (Ithaca, New York: Cornell University Press, 1977). Henry C Mitchell dedicated a chapter to “The Author Metaphor”, detailing Romantic, Foucauldian , Labour-theory and other ways of frames authorship Henry C Mitchell, The Intellectual Commons, ed. James P Sterba, Lexington Studies in Social, Politicl and Legal Philosophy (Lanham: Lexington Books, 2005). 25
  26. 26. as a declaration of the ownership of knowledge.116 Lack of authorship credit, McSherry continues, positions an employee as worker, rather than owner.117 For example, the University of New England 1995 Intellectual Property policy says that the university will acknowledge authorship of any of its intellectual property that it publishes, an undertaking that certainly does not apply to administrative documents – the author of that policy, for in stance, is not acknowledged.118 However, while not as utopian as perhaps it sounds, a gift economy is always internal in focus, its obligations directed to the growth of the community – and in the case of universities, the growth of knowledge. By contrast, trending the university towards market economy values directed its focus outwardly, to commodity production for external consumption. 119 Intellectual property, based on a market system, could not easily so- exist with the gift culture that imbued university norms, claims McSherry.120 This shift in focus, of course, was the conscious wish of government policy-makers in the late 1980s and early 1990s – a wish that failed to consider the consequences to knowledge of dismantling academia’s gift-economy structure. The act of implementing these intellectual property policies then, also further dismantled any differentiation of the university form from commercial organizations. In so doing, they removed incentives for academic staff to contribute commercial good – to gift their knowledge to the university community – since intellectual property policies removed the privileges attached to membership in the community of scholars. It repositioned academic staff to an adversarial relationship to the institution, with legal obligations rather than opportunities for gift-giving in a community structure. The regulated obligation to report commercialisable research also shifted the choice about research outputs away from the researcher, as already discussed. When combined with national research priorities and a reallocation of public funds from recurrent to competitive funding through the Australian Research Council, it would appear to be a massive structural shift that would remove academic freedom and transfer the control of research outcomes (including the decision to transform knowledge into intellectual property) from academic staff to the Commonwealth. Far from protecting academic freedom, however, universities and their Vice-Chancellors, fearing Commonwealth incursions into institutional income sources tried to use their intellectual property policies to transfer the control of 116 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Massachusetts: Harvard University Press, 1993). 133 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 82-87 117 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 83 118 University-of-New-England, "Intellectual Property Policy." 24 119 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 75 120 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 70-72 26
  27. 27. research outcomes to the institution as employer. While this might have protected some of the financial interests of the universities, academic freedom was only protected by the impossibility of enforcing the obligation to report. The acquisition of the control of research outcomes via university intellectual property policies was offset by granting a proportion of the income from any commercialisation activities to the researcher, even though as property it belonged to the university. Research, however, was not the only part of the higher education system then being commodified. Full-fee postgraduate coursework was permitted from 1987 and in the discursive environment of the late 1980s and early 1990s was seen in the sector as commercial activity (rather than, say, a non-public means of covering teaching costs).121 This deliberate commodification of some aspects of university educational “products” meant that, at The Royal Melbourne Institute of Technology some staff felt they should be entitled to the same percentage of personal financial benefit (one third of net profits) from course material as from commercialised research. Since fee income simply shifted the cost of running a university from government to student “consumers”, the allocation of 30% of this income to the staff who prepared the course material in addition to their salaries would rapidly deplete a university’s financial foundation. Nevertheless, the logic was sound, since the mission to educate – like the trade in intellectual property – was increasingly described as a commercial transaction, which intellectual property policies had committed to sharing with originators: My personal belief is that the only basis for arguing that a developer of courseware should begin the negotiation on economic benefit expecting less than one third of net profits would be that more material (as opposed to intellectual) input is made by the university to courseware than to applied research and technology transfer. My experience is that the reverse is 122 common. Corynne McSherry dedicates an entire chapter to the ownership of course material, even though course material would normally be created as a part of an academic’s duties of employment and would seem to belong to the university. The difficulty in the Unites States seems to have arisen from the nature of the classroom. Unlike distance education courseware123, on-campus course material can be more ephemeral, raising questions about whether lectures are in the public domain or the 121 Craig McInnis, Richard James, and Alison Morris, "The Masters Degree by Coursework: Growth, Diversity and Quality Assurance," ed. Education and Training Department of Employment (Australian Government Publishing Service, 1995). page 122 A Henderson-Sellers, "Intellectual Property Policy - Comments by a Henderson-Sellers," in Intellectual Property File (Melbourne: RMIT Archives, 1996). 2 123 This was one of the reasons the University of New England gave for producing their intellectual property policy. University-of-New-England, "Intellectual Property Policy." 21 27
  28. 28. possession of the lecturer – questions generally only raised when students started to sell their lecture notes.124 However, while teaching and research are clear academic duties, the production of tradable intellectual property is less clearly a responsibility of a university employee125 and intellectual property law would normally incline the natural ownership to the originator – a point acknowledged by the Australian Vice- Chancellors. 126 Sharing the profits of intellectual property might even be an admission of unfair acquisition of staff property, functioning as a disincentive for academic staff to object to institutional claims over the intellectual property they produce. The Royal Melbourne Institute of Technology policy highlights this possibility when, on the first page it claimed all intellectual property produced by staff in the course of their duties (Section 2a) and then went on to say: Notwithstanding subsection (a) the University may require that member of staff or student 127 formally assign to the University his or her interest to any intellectual property. Unsure, perhaps that ownership via employment would be sufficient, the university may require staff assign rights individually, to be safe. However, staff were unlikely to object that the university or a commercial arm of it would carry the costs and the risks of initially developing and protecting the research that may or may not result in some personal profit. Policies including the sharing of net profits enticed academics to overlook any loss of academic freedom or control of knowledge in exchange for commercial assistance and a share of the profits. Commercialisable intellectual property in its narrow sense turned out to be a very small proportion of any university’s research output, so control of the decision to commercialise invaded only slightly the tradition of academic freedom. However, in the late 1980s and early to mid 1990s when these policies were being considered, the expectation was that university research had the potential to be converted into a vast and lucrative body of products. The failure of universities to date to support themselves on the knowledge products their employees created, at that time suggested a structural and cultural flaw in university research management. The Prime Minister’s advisory committee said: The fact that such a miniscule part of the activities of universities involves IP protection, in contrast to the very large level of public funding of universities and university research, 128 indicates something is fundamentally wrong. 124 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 101-143 125 French, "University of Western Australia v Gray (No 20) [2008] ". page 126 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper." page 127 Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy." 28
  29. 29. This type of rhetoric, supported by figures such as $600 Billion of annual trade in intellectual property globally, changed the way institutions and government saw the knowledge held and produced. This rhetorical imperative was combined with the sense emanating from neo-liberal advocates in Canberra and from the pages of the Higher Education Supplement that the evidence for the value of knowledge was that someone would pay for it. As a result, universities started to talk about knowledge as property, giving intellectual property a meaning far broader than its narrow legal usage. The university intellectual property policies thus attempt to regulate knowledge prior to its protection as intellectual property, also referring to that research as intellectual property. For example, rather than specifying research with potential for commercialisation, the University of Adelaide policy said: It is essential that intellectual property with potential for commercial development should be appropriately protected before it is published. We know what the University of Adelaide meant here, but as established at the start of this chapter, intellectual property refers to the rights attached to knowledge, not the underlying substance. But universities’ hopes in commercialisation were based on a fantasy about the financial value of that which sat at its core: knowledge. Universities were reconfiguring the idea of knowledge as a market system, a trade in a vastly expanded discursive concept of intellectual property. The Australian National University’s 2008 website, which gives some background to intellectual property, captures this sentiment: Intellectual property lies at the centre of all basic, strategic and applied research conducted across Colleges and disciplines at the ANU. Put simply, IP is the ANU’s core business: it’s 129 what we produce. Intellectual property was beginning to sound like the business of the university. If universities were already conducting large amounts of research that presumably could be commodified, traded and reap financial rewards for all, then it was essential that universities own more than legally protected intellectual property. Moreover, it was very difficult to predict which research might have commercialisable outcomes, so it was far safer for universities to claim ownership over everything even – or perhaps especially – before it existed. Universities thus used their intellectual property policies to claim ownership, not just of property, but also of knowledge. 128 (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview." pge 129 Australian National University, Research Office: Intellectual Property (Australian National University, 2008 [cited 22 July 2009 2009]); available from property.php. 29