Wednesday, 8 September 2010

Introducing intellectual property

For Australian universities, intellectual property was the get rich quick scheme of the 1980s and 1990s. Like many schemes of its type, its financial successes did not tend to match its promise. But as all who work in universities will attest, there are far more ways of measuring success than financial return. The impact of intellectual property, for all its financial failures, was spectacular.

Between around 1986 and 1996 universities all chose to invest (sometimes heavily, depending on their legal fees) in intellectual property policies. Most of them already had a patent policy of some sort. However, something was changing. The change was represented, though not entirely captured, by the move to property-based terminology. The University of Wollongong’s 1979 patent policy, for example, had read:
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.
Sometimes a patent was the best way of making research available. A decade later Wollongong University’s intellectual property policy expressed a different set of values:
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.
The focus had shifted from knowledge to profit. This is not in itself surprising, considering the other 1980s changes. But this particular change is important. It transformed the substance at the core of the university. It was intellectual property that made knowledge seem ownable in a new sense.

While important, the changes intellectual property policies made were subtle, often seeming uncontroversial – or perhaps just incomprehensible. Intellectual property is a slippery concept, even among lawyers.  The language surrounding intellectual property, especially in universities where discussions about knowledge happens on many levels and for a thousand purposes, ensure meanings could and did slip from one person’s noble intention to another’s self-interest (and vice-versa). Legally, intellectual property refers to a set of rights temporarily granted to enable commercial exploitation of particular kinds of products of intellectual labour. Some of its slipperiness derives from its diversity. Vastly different legal histories are attached to (for instance) the development of copyright, protection of artistic works and music, patented invention, the keeping of trade secrets and protecting computer software.  The kind of language this diversity spawned led to a crucial mistake that McKeogh and Stewart point out:
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.
Knowledge is not intellectual property. However, policy changes of the 1980s and 1990s may represent an attempt to make more things tradeable – in this case knowledge – than the law of intellectual property really permitted.

Monotti and Ricketson, authors of Universities and Intellectual Property: Ownership and Exploitation, say that recently (they published in 2003) Australian universities had all discovered that intellectual property was important to them. It was like finding one has “been speaking prose for over forty years without realising it”, they said.  They see it as not an actual change, more a kind of legal awakening. The change that did underpin it, they claim, was the development of what has become widely known as Mode 2 research.

Research had changed worldwide, so that by the 1990s new patterns were observable. In their 1994 book The New Production of Knowledge, Michael Gibbons and colleagues described a shift from Mode 1 patterns of research, where knowledge found its way from discovery to industrial application in a linear path, to Mode 2 research where industrial and academic problems were encountered and tackled in more integrated and collaborative ways. This initiated two key changes, according to Gibbons et al. Firstly, the previously distinct spheres of university and commercial knowledge were conflated, complicating the purpose of the production of knowledge. Secondly, the new relationships that Mode 2 forged led to complications in the ownership of intellectual property.  Faced with uncertainties around who owned rights to what, Monotti and Ricketson claim, universities were compelled to develop policies regulating their intellectual property.  It sounds plausible. However, taking a historical rather than legal perspective on this change raises questions that their explanation does not address.

I have selected a sample of eight intellectual property policies from Australian universities, largely based on which universities readily made them available.  In each case the sample is the first policy of that institution to include the phrase “intellectual property”. The earliest of these was from the Australian National University in 1986, the latest from the University of Western Australia in 1996. These policies frame my date range, seeming to represent the period for new policy development. It is quite a specific set of dates, suggesting that, as well as a larger evolution towards Mode 2 research (which might be expected to result in sporadic changes over a longer time) new policies were perhaps triggered by more specific events. That being said, universities had all moved quite rapidly into research commercialisation in the 1980s, changes that might have facilitated a kind of Mode 2 (and thus intellectual property) growth spurt.

How did the changes in the focus of research as commercialisation commenced transform university knowledge? Contemporary concerns demonstrate the reach of the question: should biotechnologists patent the genes they identify?  What responsibility do developers of pharmaceuticals have to the public on the one hand and to investors on the other?  What of claims, like Yochai Benkler’s and Lawrence Lessig’s, that the world is richer when knowledge is shared?  And finally, the finding by the Australian Federal Court in 2008 that university claims over intellectual property might violate academic freedom?  These substantial tensions have their origins in this moment in university history. They give urgency to my overall question: in what conceptual ways was intellectual property deployed and how did it impact the ownership of university knowledge?

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