A Bill of Rights strategy is about limiting the claims of government and institutions in favor of personal freedoms. By contrast, a Geneva Conventions strategy is about being decent to captives once they have become captive. Most everything about improving the productivity of university tech transfer offices these days is so GenCon-style. That way means office expansion and quest for efficiencies in a never-ending cycle. We should be talking BillyRights instead, and break the cycle.
For public universities, a claim to ownership of faculty scholarship, whatever the form, amounts to state control of scholarship. No amount of interest in “monetizing” IP that happens to be tangled up in such scholarship justifies such state intervention. Faculty do not work for the state as employer, but as a steward. The state does not assign or direct or approve their work. A state claim on faculty scholarship amounts to an eminent domain taking of personal property. And institutional claims to ownership are notorious ways of suppressing, not encouraging, innovation.
The strength of a university faculty is its independence, not the effectiveness of its subservience. The advantage of independence is diversity and responsiveness. These in turn feed a vast array of commons, relationships, and opportunities. If one wanted to devise an approach for university faculty involvement in innovation, it would start with liberty, would champion diversity, and would expect that *most* scholarship feeds the public commons by creating platforms, libraries, standards, and networks–and these intangible assets are vital sources of subsequent opportunity. An institutionally mandated, compulsory, speculative monopolist model, whatever its money attractions, is exactly the worst approach one could devise for a public university. It is so GenCon-style, so, er, passé concentration camp.
Faculty, staff, and students engaging their community as they see fit is a tremendous contribution to an environment favorable for innovation. No amount of central control can possibly be responsive to the changing conditions understood by individuals. The smarts of a university are at its periphery, not its center. There is no point in making every inventive idea journey, then, to the dull, dark pit in central administration to be thumbed by bureaucrats before it can be released into the wild. There is no point in making such journey into a virtue or trying to persuade the public that the state will provide by shopping scholarship to speculative investors, seeking to share a profit with them. Nor money nor control nor preservation from mistake justifies such a thing.
There is a role for patents in the deployment of faculty scholarship, and there is in that role for patents good reasons for exclusive licenses. There are, also, great reasons for a university to provide resources to enable such things. But there is no reason for such things to be made compulsory, any more than requiring all faculty to publish through a university press, or to rent their homes from the university. Compulsory institutional ownership, combined with compulsory use of a university-controlled licensing office, combined with a pea-brained idea that university licensing should default to exclusive licenses, preferably with speculative investors, while the rest of whatever is claimed goes to the junk heap of “good intentions” makes for a perfectly awful concoction of ineffectual, expensive, exasperating bureaucratic rainbow chasing. Isn’t it time that folks just accept that the present monoculture of technology licensing operations at American universities is just awful, that the idea that Bayh-Dole advocated the abolition of faculty rights to their scholarship in favor of bureaucratic profit-seeking, and that such profit-seeking was a grand proxy for actual innovation, is just awful, and that no amount of prettying up with aspirations about the public good, or new sources of revenue, or the potential for economic development can change the fact that we are talking about bureaucratic state control of faculty scholarship. State-mandated rainbow chasing. What could be worse?