Suppression of research findings was an early fear as the values attached to research commercialisation and intellectual property entered the universities. The Higher Education Supplement reported that sometimes commercialising research prevented it from getting to the parts of society who most needed it. The fear that those with the money would control the way knowledge was used had for centuries fed academic freedom. University knowledge was protected from systematic skewing to the sole benefit of patrons and their financial interests by closely guarding the right to publish and present research findings. Some intellectual property policies changed this whole apparatus. Five out of the eight policies required staff to both inform the university of a potentially commercialisable discovery and protect its commercialisability. For example:
The staff member shall notify his/her Head of Department and the General Manager of ITC (Uniadvice) Ltd that intellectual property has been created. Where intellectual property has been created all reasonable care must be exercised by staff and students not to disclose, publish or use the property in any way which would prejudice its protection.
This says a researcher is not allowed to discuss their research without approval by the university. The decision, moreover, regarding commercialisation and publication would belong to the institution. In fairness, most universities have changed this now and academics own the decision (if not the property). Commercialisable intellectual property in its narrow sense turned out to be a very small proportion of any university’s research output, so no real financial hardship was attached to maintaining academic freedom, in the end. But in the 1980s and 1990s, universities had reason (some of these reasons will be discussed a little later in this chapter) to expect that research might be converted into a vast and lucrative body of products. And when they held that belief, the desire to own knowledge was ardent.
While it permeated negotiations on all sides, more than greed underpinned these policies. Collectively they demonstrate just how deeply the universities assumed that, in a sense similar to the books in its library, any knowledge existing within their metaphoric cloisters belonged to the university. 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 students’ legal rights, claimed student intellectual property as a condition of enrolment. Believing that all intellectual endeavour that went on in the university somehow “belonged” to it, this claim was derived from nothing more than their position of power (remembering institutions can not just claim property as their own, irrespective of their right to enrol or not enrol a student). Students were certainly not employed to produce intellectual property for the university. I understand that universities have also stopped doing this. It is nevertheless significant that they tried. The Australian Vice-Chancellors Committee thought it was a very good idea: in 1993 they suggested all universities use their power over enrolment to acquire students’ intellectual property.
The Australian National University 1986 intellectual property policy contained a very odd clause:
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.
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.
Academic work tended to resemble the task-oriented peasant work that EP Thompson described back in 1967: the task, rather than the length of the workday, was important. For better and for worse, in academia less distinction existed between “work” and “life” than the Australian National University’s legal team would have liked. Academic work as they well knew, was not only difficult to define it by its tasks, it would also be insufficient for their purposes to define it by the length of the workday. Academic time, especially research time, was spent doing their “own” work, pursuing knowledge in the way they saw fit, finding truths along untrodden and therefore unpredictable pathways. How could an employer define it in order to claim it? The Australian Vice-Chancellors saw the problem immediately:
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.
This explains why the Australian National University was so careful to claim everything an academic staff member ever did. “Time was now currency”, to use EP Thompson’s phrase, and whatever its exchange rate the universities, as if they were the same as any other employer, wanted it.
But the universities were not just any other employer. Industrial capitalism had claimed time as money as Max Weber, EP Thompson and so many others have shown. But not in the universities. This had to do with both work and knowledge. Firstly, academics were not employees in the same sense as others because their role required them to be free from many of the constraints of employment. For an academic to do their job they could not be told exactly what knowledge to pursue or exactly how to teach it. And yet this exactitude was what claiming intellectual property as an employer required. Secondly, knowledge-based (rather than market-based) research led to knowledge that had distinct qualities. University knowledge was inseparable from the knower (inalienable in a way that goes beyond epistemic belonging): what the person knew and discovered and their membership in the community of scholars was inseparable from the university itself. Institutions could not easily make the claims other employers could then, for protecting intellectual property contradicted their mission to protect academic freedom. So what universities tended to do was to claim that they were the same: that the pursuit of knowledge and the protection of intellectual property held only a semantic distinction.
[footnotes removed for this posting. email me if you want them]