Discretion in research and ownership of IP

UWA v Gray Paragraph 195-197

"The insuperable difficulty in UWA’s submissions is that Dr Gray’s employment duties did not even require him to perform tasks from which inventions might result. The subject matter and the manner of discharge of his duty to research were in his discretion. He was not employed to invent."

196 UWA has sought to circumvent his Honour’s conclusion in the following way.

Though Dr Gray was entitled to determine the subject and manner of his research, if what he

chose to do required him to bring his inventive faculty to bear, then the doing of that research

should, it is said, be regarded as that which he was engaged to do and for which he was paid.

Any invention resulting from his so doing should, in consequence, attract the implied term.

197 Such a deemed, contingent duty to invent requires an untenable implication. It is

not what Dr Gray’s terms of employment required; there is no “necessity” for it being implied

by law into the employment contracts of university academic staff; and, importantly, it is

inconsistent with the researcher’s freedom to share and to publish research results.

Money and academic freedom - more on UWA v Gray

Someone in twitter this week said: "One reason UWA lost was academic freedom - court thinks that means freedom to make private $millions". I don't think this is accurate, but it should be said that Gray acted pretty shabbily in this. If you are going to make a lot of money out of your research, it is the right thing to do - either through formal profit sharing or through substantial gifts - to share that with the university. To me, this is a part of academics' membership in the university.

What worried me substantially though, amongst this week's chatter about UWA v Gray, was the patent attorney who made the following argument: The court, he said, claimed that if academics had the right to publish, they basically had the right to destroy the patentability of their work (once knowledge is in the public sphere it is no longer patentable). If they have this right, then they must own it. This is indeed one of the many nuanced arguments in the case.

The worrying thing is the construction this patent attorney put on the right to publish. He said that academics are custodians of public funding, since this is at least partly how their work is funded. I don't dispute that. He claimed that this makes them responsible to provide a financial return on investment. This is a very new idea that I traced in my recent chapter draft as emerging in the 1980s and it has substantial problems. Academics prior to the 1980s were also custodians of public funds. But more importantly they were custodians of knowledge and the intellectual integrity of the community, with a primary responsibility to protect, pursue and disseminate knowledge, not to maximise the public's financial investment. I believe the court is correct in declaring the financial return aim to be contrary to the Acts by which universities exist. And, more importantly, their purpose in society.

The patent attorney (whose name I've unfortunately forgotten, but the link is above) then said that an academic destroying the patentability of their work by publication was wasting public funds in the same way as if they had taken a sledgehammer and destroyed their own laboratory. This is the sentiment I find particularly alarming. The right to publish is central to academic freedom and if financial return is valued over this, then the purpose of the university is at risk.

Why? Because the pursuit of knowledge needs to be, as much as possible, uninfluenced by financial gain, political goals, religious taboos and other threats, otherwise knowledge becomes skewed, narrowed and sometimes false. This is the trust we put in universities. Other organisations do research. But we don't expect them to further knowledge. Take, for example, a pharmaceutical company. They benefit from general developments in pharmaceutical knowledge, but it is not their job to move that forward. Their job is to make a profit (sadly, since we'd hope their priority was to provide medicine to people who need it, but that is another story). They will fund often substantial amounts of research but it is directed at profit-making. If universities had those same priorities, the general moves forward wouldn't happen. And the general moves forward won't happen if there is no academic freedom. Academic freedom is the intangible substance that makes us believe the claims of the university more readily than the claims of a pharmaceutical. And it is why the universities exist. Without it, we might as well just have a lot of commercial and political R&D. And the consequences of that, for society, are too terrible to contemplate.

Who would've thought lawyers would care more for academic freedom than the university?

I have only read about half of the judgement of the appealed UWA v Gray case, but the findings are far more wide reaching, I think, than The Australian has given it credit for.

The judgement acknowledges the changes that have faced universities since the 1980s, making them increasingly entrepreneurial. But the finding is clear that these pressures do not excuse the university from complying with the Act that enables its existence.

That Act requires the university to pursue knowledge and disseminate it. Commercialisation that necessarily – even temporarily – requires secrecy is a contradiction to this requirement by the University’s Act. They acknowledge that universities are likely to still pursue commercial goals and that there are significant forces compelling them to. But commercial goals will never obviate their requirement to fulfil their original mission.

This is really important, because it goes to what an academic does. Academics research and teach. They may also disseminate knowledge in other ways. They could possible patent things but this is not central to their role. It can’t be central to their role because it is not a part of the role of the university, that the Act requires.

The judgement says that UWA has been reluctant to say what the role of the modern university is. This is not surprising, since the UWA’s lawyers have been allowed to betray every tradition that the university form has upheld for hundreds of years.

The UWA stressed, apparently, in their appeal, that the only consideration of import was Gray’s obligation as an employee. The Federal Court, however, guided by the University’s Act, has nevertheless insisted on considering (a) the role of the university as explicated by the Act and (b) the role of the academic in fulfilling the university’s mission – this role being one of membership, not subjugation. The fact that UWA stressed Gray’s employee status over his membership is a betrayal to the university tradition and to academic freedom that shocked me: it suggests that the UWA values the income potentially derived from Gray’s inventions more than the special position the iuniversity holds in society. This special position – a position that, not incidentally, gives the university the right to declare authoritatively over a wide range of issues, since the separation of commercial values from knowledge production gives it this authority – is central to the university’s traditional mission.

The Federal Court obviously was not amused either and showed that the Act made the university different to other commercial employers – a difference that, thankfully, the court appreciated, even if the university did not.

UWA not that appealing

The Australian Higher Education Supplement has seemed a little short on news lately. But today they reported that the judgement of the appeal by UWA v Gray has been released.

The HES said:

"In a joint judgment, the court refused to read an implied duty to invent into Dr Gray's contract, stressing the distinct public role of universities, the fact that academics were not only employees but members of their university, and the freedom of researchers to choose the direction of their projects as well as to share and disseminate their results."

Like many others, I'll read it before commenting further. Unlike the HES, I have that privilege.

Privatisation and public universities: the decade that commodified knowledge

I don't think I have posted this yet: This abstract was just accepted for presentation at anzhes - my actually being there will depend somewhat on the outcome of my application for postgraduate assistance.

One of several 1980s attempts to offer fully private higher education in Australia, Tasman University was intended to have a presence in New Zealand as well. The brainchild of Michael Porter at the Centre for Policy Studies, a hub of neo-liberalism during the decade renowned for the commodification of higher education, Tasman University collapsed even before it opened. It was not alone. Tasman and other private universities – most famously Bond University in Australia – struggled, despite the faith their founders expressed in the improvements to be found in a user-pays higher education system. Few survived at all, and none became the immensely profitable Australian version of Harvard University that Don Watts, the first Vice-Chancellor at Bond University, anticipated.

The trials and failures of private universities, however, do not reflect a failure in the privatisation project. Scholars of higher education in Australia consistently affirm the 1980s as the decade when universities became commodified and deregulated – where privatisation flourished.

For Australian academics recalling the 1980s, the Dawkins reforms, commencing with the instatement of John Dawkins as Minister for Education 1987, stand out as the shock, precipitating a massive move towards a commodified system. Despite the uncontested significance of those reforms, the moves to privatisation were stirring from the earliest parts of the 1980s – and they were not all the result of government policy. Tasman University failed due to competition – explicit, marketised competition – from fee-paying private courses in a public university led by a vocal opponent of Dawkins: David Penington’s University of Melbourne.

Why did the public universities show such complicity in the commodification process, despite their vocal opposition to privatisation? This paper, a part of a postgraduate work in progress entitled “The ownership of knowledge in higher education in Australia” considers the roles public and private universities had in the causes and processes of the commodification of higher education in Australia in the 1980s.

My thesis in 24 words

This is an edit of my posting last week "my thesis in 23 words". I forgot a word, so it is now My thesis in 24 words. Obviously.

Knowledge is:

1. Purchasable
2. Delegitimised
3. Commodified
4. Controlled
5. Privatised
6. Tradeable

This changes the role and nature of the university.

The end.

Tradeable knowledge: the development of intellectual property policies in the 1980s and 1990s

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.

Click here to read the rest of this first draft chapter.