Privilege itself must be weeded out

Higher Education is not the privilege but the proper function of the university: privilege itself must be weeded out.

- National Union of Australian University Students War Policy, 1942

Gift culture and the competitive ethic: knowledge and the community of scholars after 1987

This is the abstract for a paper I intend to present in Byron Bay in December

I've been a little quiet here lately I know...marking, mostly! I have also started a document called "thesis full draft": it is a little scary.

Here's the paper abstract: Gift culture and the competitive ethic: knowledge and the community of scholars after 1987

The Australian Research Council, formed with the 1987 Dawkins reforms, transferred $65 Million of recurrent funding from the universities and reallocated it in competitive research grants. It was just one event, one policy decision. But it represents a shift in the structure that regulated academic quality.

Several other 1980s changes combined with competitive funding: the decline in academic reputations, the growth of economic imperatives, and a trust in market values to determine quality.

Competitive funding pushed the problem of financial scarcity from government into the universities. Lack of money would be internalised as academic inadequacy: attracting funding became the evidence and source of academic standing.

This competitive ethic disrupted the community of scholars. An economy structured similarly to Marcel Mauss’ gift ethic had long defined membership in the university. The system of gift obligation extended across international networks of scholars, binding disciplines and individuals in productive ways. It relied on the (knowledge) richness of the community and obliged each member to contribute to it.

Individualised competition destabilised this system. Comparing the gift economy to the competitive ethic emerging in the 1980s and 1990s, this paper examines their implications for the community of scholars and the quality of university knowledge.

Collectivity and currency: draft conclusion

[this is following from the last post, The Death of the Author]

Of course the institution did not assume all the functions of the author in the production of individual texts, such a claim would be silly. The analogy is imperfect, to be sure: its value is that it reflects the marginalisation of the community of scholars. The wrongness of institutional claims over intellectual property was not in its contrast to the rights of the individual author or originator, but in its failure to acknowledge collectivity. In fact, the appropriation of rights by the university paralleled, even enhanced, the individuality and authority of authorship. In claiming the singularity of the institution as the rightful owner of knowledge and intellectual property, it confined the plurality, the organic richness of the community of scholars to its narrow and increasingly impoverished being.

The university did own knowledge. The community of scholars were the university and their knowledge, collectively, enriched the places where they gathered. The community of scholars was like a living, breathing library, wealthy (as the cliché describes it) with knowledge. This explains why the universities had thought it would be so easy to claim intellectual property from staff and students: the knowledge they had was the university’s all along. But in the community-based gift economy that knowledge, while tradeable as a gift, could not be converted to currency.

Currency was the wealth universities were definite that they needed. Collectively they had constructed what Elizabeth Garnsey called a “consensual vision”, a fantasy in which teaching and research, reconstructed as a trade in intellectual property, would solve their pressing financial problems.  Government policy not only supported their belief it also structured a system that required their compliance in it. Government had been advised that 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, they thought, could surely 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.

It would also help the universities, so their leaders were persuaded, since they were grossly underfunded. Moreover, since the early 1980s they had been looking for more diverse sources of income in an attempt to regain autonomy from the ever-encroaching Commonwealth. Indeed, the Commonwealth had been moving, inch by barely observable inch, to undermine academic freedom in the universities. But the transfer of knowledge towards short-term, achievable national and market priorities was still not as severe an attack on academic freedom as that which the universities unwittingly launched themselves. In the obligation to report and protect commercial potential, universities posed a direct threat to the right to publish and the priorities of research. The new structure of ownership – appropriation of intellectual property rather than ownership of knowledge by virtue of membership – structured the possibility for institutions to suppress research.

As it turned out, the potential for wealth had been overstated. 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 now suggest that only a tiny percentage (0.03%) of the new ideas generated within a university will ever successfully find their way to market. 

In this chapter I have not made any moral claim for where income derived from university intellectual property should go. I not only consider that to not be my job, but I am also genuinely agnostic about the problem. That it is a problem – as result, actually, of the changes in policy between 1986 and 1996 – I have no doubt. But there is nothing satisfactory in saying that, in the interests of academic freedom all intellectual property rights should be given to individual academics. On the other hand, that ownership by institutions did nothing good for university knowledge is clear. It is the emptiness, the poverty of the singularity of the ownership of knowledge that is the problem, whether institution or individual author. The collective knowledge of scholars could not be converted to currency, but it was what had made them rich. Rather than provide the universities with a new and reliable income stream, intellectual property robbed the universities of their wealth. 

[as always, blurb about footnotes here, email me if you want them blah blah blah. Also a note: I still have a couple of days before this chapter will be properly finished and this conclusion is likely to change. Any suggestions, now is the time!]

The Death of the Author

Intellectual property could not accommodate the structure of the community of scholars: and yet it also relied on the collectivity of university knowledge to justify institutional claims. In 1993 the Australian Vice-Chancellors Committee released advice to universities, a how-to guide for claiming staff and student intellectual property. Research was almost never a purely individual act, they suggested. Even when research had been individually constituted, academic association with the university demonstrated their reliance on the institution to be able to conduct research. The infrastructure: “rooms, electricity, gas, water, telephones”, were just the beginning. Science relied on expensive laboratories, the humanities on expensive libraries.  The scholarly environment, claimed Macquarie University, though intangible and unquantifiable, acted as the inspiration and enabler of quality research, validating their claim to income derived from it.  Furthermore, in much contemporary research, it was simply “not possible to identify one person as the author, inventor, creator, maker or originator”, asserted th Australian Vice Chancellors’ Committee.  As George Eliot had said in Middlemarch:

There was no need to praise anybody for writing a book, since it was always done by somebody else.

Unlike Eliot, the Australian Vice-Chancellors’ Committee did not think it was funny. They were concerned that its complexities carried the potential for exploitation. Students and research assistants, they said, might “have difficulty in claiming any rights if a person of comparative power is permitted to claim sole ownership or to assume control”.

They had a point. Critical legal studies have long noted connections between power, constructions of the individuality of authorship and legal claims to financial proceeds. Many of the legal approaches are influenced by Foucault, who identified authorship as an eighteenth century instrument of surveillance: the ability to locate an individual to blame for a transgressive text.  Mark Rose traces the construction of the individual author as a part of a long political struggle to establish the autonomous political subject in a parliamentary system.  It was also a claim to power: the result of a long financial struggle between authors and booksellers. The “valorization of original genius”, he demonstrates, coincided with both a mass market for books and the possessive individualism articulated by John Locke.  However, Pamela Long argues for a longer history, not only suggesting antecedents to intellectual property in antiquity but also claiming that individual authorship and its connection to intellectual property is evident in the fifteenth century.   She specifies that the concept of authorship extends to making, designing and inventing material things: but by modernity, each is considered the work of an individual, rather than the product of collaboration. 

All this was collapsing by the end of the twentieth century.  The heroic ideal of the hermit-like humanities scholar scribbling in her sandstone garret had been largely superseded by collaborative teams of scientists agonising over findings in laboratories.  In 1967 Roland Barthes had disputed the Romantic pre-eminence of authorship in the construction of knowledge:

The Author, when believed in, is always conceived of as the past of his own book: book and author stand automatically on a single line divided into a before and an after. The Author is thought to nourish the book, which is to say that he exists before it, thinks, suffers, lives for it, is in the same relation of antecedence to his work as a father is to his child.

The ascendancy of science, especially since the Second World War, changed the dominant research culture in universities so that discovery towards the end of the century was rarely a truly individual endeavour. Changes in pedagogies and epistemologies that had their roots in 1960s and 1970s student protest movements also transformed dominant scholarly practices. Knowledge acquisition became knowledge construction.  Individual achievement became collaborative problem solving.  The individual mind was transformed into a participant in a network.  Indeed, knowledge was inseparable, some educational theorists claimed, from its environment.  If originators were to own intellectual property themselves, exactly who that meant was becoming very difficult to identify.

This is how the transformation of the research environment internationally impacted university intellectual property policies. In a Mode 2 environment it was not (at least not initially) complications out of questions of ownership, but rather questions about the individuality of knowledge production. Knowledge was collaborative: indeed the existence of the community of scholars affirmed it. Just as the community – and thus the university – could not exist without academic members, nor could the scholar be truly scholarly without the community.

The new policy framework, however, indicates a subtle, unspoken restructure. The community of scholars, as the last chapter showed, was on the verge of collapse as the gift economy was supplanted by an exchange-based system. But Romantic constructions of individual genius were also disintegrating: the author, inventor and scholar were increasingly difficult to locate. The Australian Vice-Chancellors’ Committee claimed that this complexity bolstered the universities’ claims over the ownership of intellectual property. Institutional ownership placed the control of property in the hands of a single entity, cleaning up the mess of trying to locate originality. The Vice-Chancellors suggested that institutional ownership of intellectual property meant it would be managed in “the best interests of all concerned”. The university’s role was now paternal: it was the antecedent, the father. Rather than embodying the community of scholars, the institution assumed the role of the author.

[footnotes have been removed for the purposes of this posting.  they are available on request]

Membership and the ownership of knowledge

It was as members of the university that staff and student knowledge had belonged to the university. Their membership of the community had created the university itself. 


When universities refigured themselves as employers like any other and as providers of an educational service rather than community of scholars, they lost all claim to the ownership of knowledge. 

Time, labour and academic freedom

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]

Claiming Property

[The following section, in my thesis as it is currently drafted, follows some detailed and not really bloggable analysis of university IP policies]

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]