The student estate

It was the age of the student. Even though student radicals were a minority even in the universities, they were loud. The New Left voice could be heard in the rhetoric of Labor politicians in State and Federal parliaments.  Opposition to Vietnam – a signature issue for student protest – was gaining strength throughout Australian society. That students had been right in this instance encouraged a broader invitation to students to take a place in the public sphere.  “The conscience of society” was the soon-to-become cliché.  In Britain, Ashby and Anderson called them the ‘student estate’, articulating for young university scholars a unique structural position in democracy. This role separated students from the institutional protectionism and pragmatic preoccupations of the first and second estates and even from the adult worries of the third. The student estate drew on youthful fervour and flexible, innovative thinking fuelled by rigorous intellectual training. For society, students could display issues of the day in a new light; they could offer different angles of analysis and articulate concerns that went beyond immediate or selfish goals. Students earned a bad name for themselves in the 1960s and 1970s to be sure: but there were also many who welcomed their assertion of this civic role.

How students should be?

University student radicalism is a historical icon of the 1960s and 1970s, but as a revolution its key characteristic often seems to be that it is long over. To many who were there and to those who wished they were, the era defines the way university students in some way ought to be. Youthful intellectuals rebelled against established structures. They challenged conventional thinking, themselves producing new, dissenting and irreverent ideas. Some of these images are truer than the mythic proportions of their telling might imply. Enshrined in memoirs and nostalgic histories that celebrate struggles to overcome various kinds of opposition, the intellectual and social concerns of student rebellion made a lasting imprint on the universities, even if the period failed to permanently shape the (mis)behaviour of students. 

Sweating money

When one commodity replaces another, the money commodity always sticks to the hands of some third person. Circulation sweats money from every pore.

Marx, Capital, p. 208

Do you think he's thinking of lawyers and accountants?

Epilogue: UWA v Gray

In 1985, Dr Bruce Gray was appointed to a prestigious role as Professor of Surgery at the University of Western Australia. A medical doctor, Gray had worked his way up as a specialist surgeon. Also pursuing an academic research career, in 1981 Gray had secured the esteemed John Mitchell Crouch fellowship, offered by the Royal Australasian College of Surgeons. This supported his research into cancer treatments.  In court in 2008, Australian Federal Court judge Robert Shenton French said that he had no doubt that Gray was a very difficult man to work with. Perhaps Gray’s arrogance had been somewhat earned.

As soon as Gray started at the University of Western Australia, he staked out territory: research staff were hand-picked, space was negotiated, equipment purchased; resources to enable some important research. Gray was working on microparticles that could target cancerous cells in the liver. At the University of Western Australia, this research led to the invention of a technology Gray called microspheres.  They worked spectacularly.

Having thus succeeded simultaneously in the aggressively competitive fields of surgical specialization and medical research, Gray next navigated the uncompromising world of medical technology commercialization. Gray worked hard at attracting substantial external grant income. For Gray, this somewhat offset the fact that, paid a university salary, using university resources, drawing on the expertise of university colleagues and trading on the status of a university professorship, new commercial products were developed and sold through a publicly listed company called Sirtex.

In 2010, the Australian Stock Exchange listed Sirtex as sixteenth in the top 100 of the health and biotechnology sector, worth $273 million.  From the early 2000s, Bruce Gray personally owned a $75 million share. He began living like the very wealthy man he now was. The University of Western Australia did not receive a cent.

Leaders of the University of Western Australia tried to talk to Gray, to invite him, in a spirit of collegiality, to share the financial benefits of his research with the university. When that did not work, the university took legal action. The legal fracas that followed was messy. The case UWA v Gray included other claims and cross-claims, for example: the University of Western Australia against Sirtex; Sirtex against Gray; Gray against the University of Western Australia; Sirtex against the University of Western Australia and Gray against a fellow researcher. The central question, however, and that which attracted the higher education sector’s attention, was who owned the intellectual property in Gray’s inventions, Gray or the university?

The University of Western Australia argued that, as an employee of the university, Bruce Gray’s work was the property of the institution. The court found that, while Gray was certainly contracted to teach and conduct research, there was no requirement – or even implied expectation – that he would invent. That is, invention was not what he was paid to do. If he invented, which he clearly did, he owned the intellectual property himself.

The university submitted their intellectual property policy, demonstrating they had claimed the whole of an academic’s professional time. This was the source of some embarrassment. Like other universities in the confusing post-Dawkins period, the process of developing the policy had been patchy, the responsibilities for intellectual property protection unclear. While developed and even officially adopted by the time Gray patented the microspheres, the new policy had not been properly communicated to the university community – it had not been ‘promulgated,’ as the court called it.

This did not help the university’s case. But it was not the main issue, according to Justice French. In fact, he described it as “the least of their problems”.  The university argued that, even if the policy may not have been entirely in force at the time, ownership of intellectual property was implied in Gray’s employment contract. The policy merely demonstrated the inherent rightfulness of their claim. The court was not persuaded. Justice French found that “UWA cannot, by regulation, acquire property from its staff members”. 

The University of Western Australia pointed to Gray’s responsibilities as an employee. His ‘fiduciary obligations’ required him to protect the university’s property, university lawyers argued. But this too was a problem. Not only was Gray’s invention not the university’s property, the court found that there was also some doubt about Gray’s status as an employee. Gray was not really an employee in the sense used in other cases of failed fiduciary obligation. Properly speaking, Gray was a member of the university. Gray was not under managerial direction, indeed it was necessary to the work that he controlled his research himself. Gray’s membership in the university, Justice French found, was a precondition to his academic freedom. And that academic freedom was what enabled the university to fulfill its legal obligations.

Theoretically, if the purpose of the university was the commercial production of intellectual property, Gray might have some fiduciary obligation to protect it. Was this the purpose of the university?

It was understandable, said Justice French, that lawyers for the University of Western Australia were reluctant to discuss something as abstract and contested as the purpose of the university. French was willing to do so, however, based on that legal document defining this particular institution: the Act of parliament that created the University of Western Australia. In examining that Act, Justice French found that the protection of the commercial value of intellectual property was clearly not a primary obligation of either the institution collectively or any of its individual members. Knowledge, not intellectual property, was the legal purpose of the university.

It was the obligation of the university – and the court – to protect the university’s capacity to foster knowledge. This required academic freedom – that is, the truthfulness of the university’s knowledge was dependent on expert members individually and collectively, pursuing and communicating knowledge without interference or bias from the institution. If the university – as it appeared to do in the case of UWA v Gray – prioritized the protection of financial interests over academic freedom, it failed to accomplish its task as outlined in the Act.

Therefore, as a member of the university, Gray’s obligation to knowledge superseded any responsibility to protect the institution’s financial interests. This obligation required that Gray own the intellectual property: as owner, he could do with it what he wished. Choosing to use that knowledge for personal financial gain might be morally dubious, but it was nevertheless his legal right.

To the shock of the Australian higher education sector, Justice French found, in a 544 page decision, for Bruce Gray. The $75 million was Gray’s alone. Universities were shaken, but none were as traumatized as those who had the most to lose from the decision: the sector’s intellectual property lawyers. Legal commentary declared the judge to be out of touch with the realities of the modern university. Justice French is imagining universities to be ivory towers, they ranted. Of course universities have a commercial purpose, they screamed in the media, where have you been? 

University technology transfer units rightly assumed that the University of Western Australia would appeal. The decision seemed so obviously erroneous that many also assumed that the university would win.  They were wrong. The 2009 decision of the full bench of the Federal Court confirmed everything Justice French had said. Justices Lindgren, Finn and Bennett even went a little further in contemplating the relationship between academic freedom and academic ownership of intellectual property. A fundamental attribute of academic freedom, they agreed, was the right to publish. The kind of knowledge that was the university’s responsibility  – what in old-fashioned language might be called truth – was defined by this public attribute. 

Publishing research findings prior to commercialization destroys the patentability of a piece of knowledge. The criterion for a patent is that the knowledge in question is not in the public domain – it must necessarily be privately owned. If, under principles of academic freedom, an academic has the right to publish and thus the right to destroy the commercial potential of knowledge, the court considered this to be firm evidence that they own it. Patent attorney Rob McInnes said that the destruction of commercial potential through publication was just like an academic taking a sledgehammer to their own laboratory. Publication in this sense was a destructive behaviour that amounted, he argued, to a waste of public money. 

But the court had shown that academic freedom was not just an antiquated tradition. It was the legal responsibility of the university.  The universities had for some time been behaving like commercial entities, Justice French acknowledged. But the law required that they protect knowledge first. If the universities were not going to uphold this primary purpose, the court, it seemed, would do it for them.

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References have been left out for the blog and are available on request. I would like to add this footnote, however, which I think addresses one of the most worrisome pragmatic implications of the case:

Justice French’s 2008 judgment is excessively long partly because he offers the higher education sector a great deal of advice along the way. Universities could not claim automatic ownership over invention as an employer’s right, he shows, but they could, in their employment contracts, require staff to assign their intellectual property rights to the university.

Knowledge, democracy and the Russel Ward Case

conference abstract: comments welcome.

In 1961, Australian Prime Minister Robert Menzies sent a short note to economic historian Max Hartwell, arguing “that the extent of government interference in university matters in Australia has been grossly exaggerated … much time is being wasted in defending something which is not in danger in Australia – academic freedom.”[1]

The time-wasting issue, in Menzies’ view, was the Ward case. In 1955 historian Russel Ward had applied for a job at the NSW University of Technology. He did not get it. The scandal that followed was deemed the highest profile case of Cold War political repression in Australian universities. That is, until 2004 when Frank Crowley wrote a short article for Quadrant where, based on recollections of a conversation with University of NSW Vice-Chancellor Philip Baxter nearly ten years after Ward’s application, he said Ward’s exclusion was about his sex life, not his politics.[2] When Keith Windschuttle took the opportunity to ridicule Stuart Macintyre’s continued reference to the Ward case, the Cold War found renewed expression in our own history wars.[3]

Beneath the veil of cold conflicts over history and politics however, the Ward case embodies important questions about academic freedom. New trust had been invested in university knowledge after the Second World War. Knowledge was to support democracy, academics to prevent its collapse into totalitarianism. In reconsidering the evidence around the Ward case, this paper also considers the changing relationship, in the 1950s and 1960s, between democracy and knowledge.

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[1] Menzies, Robert G. "Letter to Max Hartwell 6 November 1961." In Hartwell File: Ward UNSW/CN99A81. Sydney: UNSW Archives, 1961.

[2] Crowley, Frank. "The Ward Fabrication." Quadrant 48, no. 5 (2004): 30-33.

[3] Windschuttle, Keith. "Stuart Macintyre and the Blainey Affair." Quadrant 52, no. 10 (2008): 30-35.

Three ways that democracy needs knowledge

As far as I can glean, there are three ways that democracy needs knowledge:

1. If citizens are to rule themselves, they must be competent to do so. This requires knowledge. And this is why we have universal education (this is Dewey and many others)

2. What makes democracy democracy is the diversity of knowledges that inform self-rule. Society thus needs to encourage thinkers as well as knowers. Dissent is important to democratic processes and it is enabled by this diversity of knowledges (Habermas and lots more)

3. Not every member of society can know everything there is to know, so democracy needs to be able to draw on experts (Dahl). This is linked to Plato's Philosopher Kings - rule is enabled by knowledge see earlier post. When we can print and distribute it easily, it functions nicely as a shared resource (Dewey). But after the Second World War, experts (not just their knowledge) were also seen (by Keith Murray) as a mechanism to prevent the collapse of democracy into totalitarianism.

The guardians must recognise each other as owners

"Commodities cannot themselves go to market and perform exchanges in their own right. We must, therefore, have recourse to their guardians, who are the possessors of commodities...In order that these objects may enter into relation with each other as commodities, their guardians must place themselves in relation to each other as persons whose will resides in these objects, and must behave in such a way that each does not appropriate the commodity of the other, and alienate his own, except through an act to which both parties consent. The guardians must therefore recognise each other as owners of private property."

Guess Who?