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.TRANSCRIPT
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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
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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
intellectual activity have some intrinsic claim to be treated as property.4
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 http://www.usyd.edu.au/alumni/about/in_your_view/articles/carol_odonnell.shtml.(PDF file in author's possession)
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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
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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
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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.
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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
practice, abstraction and aggregation, ideas and data.22
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.
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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).
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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."
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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
practices to capture and harness the knowledge that a firm’s workers create.38
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
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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
has been established.43
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
University and the inventor/s, should be patented.44
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
intellectual property.45
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).
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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
right…and no amount will be payable by the Commonwealth for any such assignment.46
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.
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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
decision-making about where to put the national emphasis in research.51
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).
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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
research rather than how to commercialise research.53
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
commitment would already be exceeded.54
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
be dictated by government.55
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.
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
processes annually.56
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
publicly identifiable texts to those who are deemed to “own” them.57
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
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
have made no contribution to its cultivation.58
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
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
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
order to lessen the contribution from public funds62
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
subject matter.64
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
exercise prudent control from the outset.65
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.
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
through to enable them to be used effectively in any given situation.67
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
research and teaching comply with institutional policies and objectives.69
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.
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
…as one of their aims the maximisation to Australia of the benefits arising from research.73
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
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
university.75
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
using resources and facilities provided by the University, also belongs to the University.76
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."
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
rights77, 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).
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
Year
Staff Required
to Report
Student Visitor Collaborator
or Grant body
Australian National
University
1986 University claimed
all IP83
Yes. University
claimed.
University
claimed.
Not specified
Adelaide University 1989 University claimed
all IP84
Unclear
from the
policy85
Not
claimed.
Claimed
substantial
ownership86
1993 policy on
research
contracts
shows
University
would
negotiate87
Macquarie
University
1990 University claimed
all IP but waived
traditional
scholarship88
Yes89 University
claimed as
condition
enrolment90
Not
specified
University
claimed all91
University of New
England
1995 University claimed
some IP92
Yes93 Not
claimed94
Not
specified
Not specified
RMIT 1995 University claimed
all IP95
No, but
financial
incentives
in place
Not
claimed.96
Not
specified
Not specified
UWA 1996 University claimed Yes, but.98 University Not Not specified101
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.
23
all IP97 claimed99 specified100
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
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
is produced in the institutional employer’s time or in the staff member’s time.105
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,
and hence the sole right to use such intellectual property, belongs to the university.107
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
approach and direction, and the conclusions. This is the very essence of academic freedom.109
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.
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 things115), 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).
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
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
common.122
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
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
formally assign to the University his or her interest to any intellectual property.127
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,
indicates something is fundamentally wrong.128
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."
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
what we produce.129
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 http://www.anu.edu.au/commercialisation/intellectual-property.php.
30
Arena and Carreras’ 2008 book The Business of Intellectual Property, like many
university intellectual property policies, looks beyond the boundaries of the set of
rights attached to intellectual property:
Knowledge resides in the human brain, and unlike plant and equipment or other physical
means of production, knowledge is easily replicated and transferred to others. With knowledge
generally equating to value, not only does it matter who owns what is in a person’s head but
also harvesting that knowledge and controlling its dissemination is critical in a competitive
environment.130
Since universities and government saw knowledge as so valuable (in a financial, not
social, sense) then owning the substance even on the inside of an academic’s mind
might also be important. We have seen that government was convinced that
universities could enter a $600 billion global marketplace on the basis of the
substance that sat at the core of the university. This, they felt, might alleviate some of
the public financial burden attached to higher education. Universities, struggling
financially after a decade of systematic under-funding, were also looking to harness
this substance for financial gain. The belief in knowledge for profit was contagious.
The preamble to Macquarie University’s research management plan said:
Because of the increasing importance of intellectual ownership and enjoyment in the higher
education sector, the University is now reviewing its policies in this area overall.131
“Enjoyment” seems to be an odd word to use – I suspect it was Macquarie University
being a little coy about the term profit, which as we have seen was long construed as
the opposite of university endeavour. Nevertheless, widespread (if anecdotal)
“enjoyment” of the profits of knowledge in the sector meant that Macquarie felt it
needed to stake a claim too. All were keen to protect intellectual property from
someone: the government wanted it protected from those who might profit from it,
universities wanted it protected from the government. In addition, universities felt that
they needed to protect this substance from exploitation by their own staff.
Universities, using their intellectual property policies, attempted to claim knowledge
from their knowers: harvesting what was in their heads.
Perhaps this is why, as discussed at the start of this chapter, the language of
intellectual property slipped so easily from discussions of rights to expansive uses.
Wollongong University’s policy alone of the sample consistently specified ownership
of narrow rights. That policy at one point described staff identification of “what
appears to be intellectual property”, but it did so to provide a procedure for reporting,
130 Arena and Carreras, The Business of Intellectual Property. 29 131 Macquarie-University, "Research Management Plan (Draft)," in File P37 Intellectual Property (Sydney: Macquarie University Archive, c1989/1990 (undated)).
31
not to make a claim to intellectual properties’ potential.132 The remainder of the
sample intellectual property policies each start with the narrow, legal definition but in
various ways reveal more expansive intent. The Australian National University, as we
have seen, claimed 100% of academic staffs’ professional time. The employer’s
claim over time, long recognised as a part of their claim over labour,133 in the case of
academic staff also attempted to function as a claim over knowledge. Adelaide
University, as we saw, slipped linguistically from claiming intellectual property rights
to claiming the yet-to-be protected knowledge that underpinned it. The University of
New England, Macquarie University and Royal Melbourne Institute of Technology
policies did the same.134 Like the Australian National University’s claim over time,
Macquarie University claimed ownership of labour, describing “work owned by the
university”.135 In addition, both Macquarie and the University of New England claimed
any intellectual property that arose from using university-owned resources, which
included background knowledge.136 The University of New England’s current policy
(approved in 2007) attempts to ensure this expansive claim by also asserting
ownership over what they call “knowledge assets” which is “meant to encompass any
result of intellectual effort…the term is meant to express the breadth of knowledge
which the policy is aiming to cover”.137
This was how they did it, though it was probably not premeditated. By configuring
knowledge as intellectual property, the system could imagine a financially viable
trade emerging from the ordinary business of the university. Universities, in this
“consensual vision”, as Elizabeth Garney described the shared intellectual property
fantasy of the entrepreneurial university, would continue to teach and conduct
132 Wollongong, "Intellectual Property Policy." 3: “In all cases where a member of staff has created what appears to be intellectual property, therefore, the staff member must report the invention as set out in Section 4” 133 EP Thompson, "Time, Work-Discipline and Industrial Capitalism," Past and Present 38 (1967). 134 Macquarie-University, "Intellectual Property Policy." 2: “where a university member or members believe they have developed…an intellectual property right”. Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy." 2: “Where preliminary assessment indicates that the intellectual property…should be protected…” University-of-New-England, "Intellectual Property Policy." 24: “An originator must not apply for any form of protection for…intellectual property which is the property of the university” and 25: “Where the university owns intellectual property which may be the subject of a patent application…” 135 Macquarie-University, "Intellectual Property Policy." 3 136 Macquarie-University, "Intellectual Property Policy." 2: “…using the resources or facilities of the University material to the development of those rights” University-of-New-England, "Intellectual Property Policy." The University of New England’s policy was a little contradictory: it claims all IP from employed staff, but restricts the definition of IP to quite narrow terms. This would have excluded quite a bit of academics’ research output, making them its owner. As a result, the policy reads “Where the originator is the owner of intellectual property created in the course of employment…”, despite the first clause claiming all of it. The definition does include “projects which have incorporated intellectual property belonging to the university”. 137 University-of-New-England, "Knowledge Assets and Intellectual Property Policy Http://Www.Une.Edu.Au/Policies/Pdf/Knowledgeassets&Intellectualproperty.Pdf [Retrieved 28 July 2009]."
32
research – only those activities would become commodities in a vast knowledge
economy.138 This knowledge economy was not the same global economy where
knowledge gave a competitive edge and thus became the differentiating value in the
system139 but was rather closer to Lyotard’s description of a commodified university
system, where knowledge itself flows like money.140 Intellectual property policies and
the systemic framework in which they were formulated were based on a conviction
that the value of knowledge could be exchanged, like currency, into its financial
value. However, owning intellectual property was like owning knowledge’s shadow.
For universities to attempt what they hoped, they needed to own more than legal,
temporary rights. They needed to own knowledge.
Conclusions: intellectual property and the idea of the university In the late 1980s and early 1990s the ‘consensual vision’ of intellectual property
development made the solutions to higher education’s most pressing problems seem
clear. There was a global $600 Billion market for knowledge. Knowledge was what
universities did, the substance that they ‘traded’ in. While acknowledging that
universities, by their nature, did a lot of ‘pure’ research, approximately half of it was
useful – strategic and applied – and therefore, surely, could plausibly be added to
this vast global knowledge market for a profit. If universities could be encouraged to
be more entrepreneurial and to consider their knowledge to be a type of intellectual
property, logic deemed that universities could be potentially funded from the
knowledge they produced. This would help the government by relieving the public of
some of its responsibility for funding higher education. And it would help universities,
which were grossly under-funded and seeking more diverse sources of income in an
attempt to regain autonomy from the ever-encroaching Commonwealth.
Of course, a $600 Billion intellectual property market was not suddenly likely to be
dominated by the types of (even strategic and applied) research outcomes that
universities were good at. The idea that anything close to 50% of university research
outcomes had commercial potential shows a clear misunderstanding of the market
for knowledge – commercialisation specialists suggest that a tiny percentage (0.03%)
of the new ideas generated within a university will ever successfully find their way to
138 Garnsey, "The Entrepreneurial University: The Idea and Its Critics." 229 139 Arena and Carreras, The Business of Intellectual Property. 27 140 Lyotard, The Postmodern Condition: A Report on Knowledge.
33
market.141 Nevertheless, the inevitable failure of these first two assumptions is offset
by the remarkable success of the rest of it.
Between 1989 and 1995, tiny pieces of policy and guidance were released to the
universities from the Commonwealth and the Australian Vice-Chancellors
Committee. Collectively, through these, the ability to determine research priorities
was subtly shifted from academic staff under traditions of academic freedom, to the
market, facilitated by competitive incentive schemes via the Australian Research
Council. The Commonwealth established incentives for universities to claim the
intellectual property produced by the staff within them and the tools to make it so
were provided by the Australian Vice-Chancellors Committee. Very often these
documents passed through the fingertips of the same two former Purple Circle
members, Robert HT Smith and Don Aitkin. Universities, fearing that the
Commonwealth was attempting to reclaim more of their financial resources,
scrambled to prepare intellectual policies that would maximise the income to each
institution from the new knowledge market.
As universities thus sought to enter the international knowledge market, the idea of
intellectual property was deployed to work beyond its legal capacity. Intellectual
property came to be another phrase for knowledge, new and entrepreneurial
terminology for the substance at the core of the university. For universities to harness
this substance, it required more than just a name change. It required universities to
finally be explicit about ownership. Intellectual property policies would certainly have
been the most appropriate mechanism to discuss ideas about ownership, but
universities could not afford to only own intellectual property. Thus, as much as
knowledge was reconfigured as intellectual property, so too was the language of
intellectual property expanded to encompass all intellectual activity conducted by all
types of staff in universities. The master-servant relationship in which academics
were paid to provide intellectual services to the university was extended to all of the
time and all of the products of their labour: attempting, even, to own the inside of
their minds. This changed the character of academic work, shifting the flow of
knowledge from a gift to market economy and placing academics in an adversarial,
rather than collegial, position in relation to the institution.142
With the control of research moved to the market, facilitated by government’s
national priorities, and knowledge now a market system, the idea of the university
141 Greg A. Stevens and James Burley, "3,000 Raw Ideas = 1 Commercial Success!," Research Technology Management 40, no. 3 (1997). 142 cf. McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property, 102.
34
was also subtly, and yet absolutely, readjusted. The inward focus of the gift economy
was redirected to focus outwardly towards the market, directing effort, like any other
commercial organization, to the production of commodities. The exceptional position
that the idea of the university had held, directing its energies to the pursuit of
knowledge and guardianship of society’s intellectual integrity was unravelled in this
discursive act. In intellectual property, universities reduced the hallowed idea of the
university to just another element in the knowledge economy, barely distinct from
commercial organisations. Universities reconfigured the business of the university –
the free development and dissemination of knowledge – as a trade in intellectual
property.
35
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