The primary concern for universities, contrary to Monotti’s and Ricketson’s claims, was not to clarify the question of who owns intellectual property in a collaborative research environment. Of the eight policies sampled, only three mentioned external partners: both Monash and Macquarie Universities specified that they would claim 100% of intellectual property from externally funded research and Adelaide said they would negotiate each case. Even in those three documents, concern over the ownership of intellectual property by collaborators or funding bodies were never central to the policy’s goals. This suggests that, despite growing interactions with industry and the commercial world, universities were not initially concerned about them. The key concern for universities in the 1980s and 1990s was to ensure the institution, rather than its staff, were the rightful owners of intellectual property.
What is this about? What were universities trying to establish with their staff? A close examination of the wording and the reasoning reveals ambivalence and uncertainty in the ways universities attempted to protect the knowledge that they were just starting to suspect contained a valuable commodity. The wording of universities’ claim was quite variable, highlighting some uncertainties about the nature of academic work. Some universities claimed ownership of intellectual property that “arose” (as if by accident) from an academic’s work. Some claimed work that was “produced” by “originators”, using language of agency and intent. In every case, universities used their status of employers to claim the products of the labour of their employees. While this sounds straightforward enough, even a cursory investigation of the character of academic work reveals it was not.
Ann Monotti points out that organisations cannot easily go around claiming other people’s property. The law of intellectual property generally considers it to belong most naturally with its originator. If universities wished to claim that they own intellectual property produced by their academic staff, that intellectual property must be created as a direct requirement of their employment. For universities, unique in the knowledge-producing world, this caused a problem. The policies implying that intellectual property might be developed by accident were right: research can be unpredictable. Protectable intellectual property may well come about as a result of serendipity rather than intent. Moreover, any policy attempting to make the production of intellectual property a requirement of academic employment encountered a tangle of problems. Research did not look the same for every person, project approach or discipline, so the policy descriptions were difficult to frame. The sample policies resorted to awkwardness to close as many loops as they could. 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.
Unsure that ownership via employment would be sufficient, the university may require staff assign rights individually, to be safe. Universities’ claims were quite weak. Their real strength was not a legal claim, rather relying on the likelihood (especially for patented inventions) that staff would accept a generous profit share in exchange for the university to carry the risk. Profit sharing was a tacit admission that they were trying to claim property belonging to someone else. That staff and the National Tertiary Education Union accepted it shows that it was framed as a trade union determination to maintain financial rights. Both sides had it wrong.
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.
Most (six of eight) intellectual property policies claimed 100% of intellectual property. In order for staff to receive royalty income on publications those universities specified that the university waived their rights to publication. This is very different to what Monash and the University of New England policies did, which was simply not claim ownership of that kind of copyright: academics would own it themselves. It sounds like a subtle distinction, but it is not. When universities in the United States had tried this approach, the American Association of University Professors took serious exception. Their objections were based firstly on the relationship of the academic to the institution and secondly on the character of academic work.
Academic work was not work for hire, they said. It was not work done explicitly for and under the guidance of an employer:
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.
For inquiry to be free in this sense, academics must own the copyright, they claimed, not only enjoy its financial benefits. Theoretically, where universities own copyright instead, they could decide where it would be published, edit it at will or use it to create something else. Most importantly, the American Association pointed out, where the university owns copyright they could censor or suppress research.
[footnotes removed for the purposes of this posting. contact me if you want them]