In looking at how the American university administrator’s version of Bayh-Dole has been exported to the world, I came across legislation in India that proposes creating a new class of “innovation” universities. According to a story in the Chronicle of Higher Education, from August of 2010, the idea would be to create 14 universities aimed at addressing “pressing” social issues. So far, so good. The universities will do this, however, by focusing on “cutting-edge technology”. This is less exciting, if only because it is not clear that pressing social issues are particularly remedied by technology, and if they are, whether cutting-edge technology is actually much of the solution set. It is entirely possible that cutting-edge technology–and expenditures to create such technology–may indeed be contributing to pressing social issues. More of the problem in search of a cure to itself, in that case.
If “cutting-edge” technology means “high tech” and that in turn means “stuff made with big, expensive, complex instrumentation that only richer countries can afford and therefore hope to have a “competitive advantage” if anything comes of it, then this is pretty old-hat kind of thinking. Perhaps it has just reached India, but more likely it has come in anew with the export of Bayh-Dole, like ticks in fur. The Chronicle reports that Yale is interested in “mentoring” these universities. University World News adds MIT to the list. No doubt a “new source of revenue” for American universities, getting foreign governments to pay for mentoring. It would be great if the foreign governments did some diligence on just who it is that intends to do the mentoring and what stories they are going to tell about how universities in America are dealing with “pressing social issues” through the use of “cutting-edge technology.” Utah’s field of startup company carcasses laced with cutting-edge technologies comes to mind.
Perhaps, though, “cutting-edge” is just a turn of phrase for something more like “thinking differently than the same-old-thinking by which the current political and technological elite hammer away at their self-interest without an interest to consider anything different, because almost any such difference would put them out of their money, status, and comfort zone.” That sort of use of “cutting-edge” would get closer to the core historical meaning of “innovation”–that is, an introduced change in the established order–any political, religious, social, technological, scientific order. Perhaps a change in the religious order would address pressing social issues. Perhaps a change in the social order would open up new kinds of technology tools to be discovered. Perhaps new technology follows rather than leads changes in the social order of things–and maybe more so than creating those changes. Or, to put it another way, maybe when technology leads and forces changes in the social order, we get a lot more in the way of pressing social issues that have to be dealt with. Technology making a market for itself. Good business if you can get it.
Here is an English copy of the bill in India that would create these innovation universities. It makes for a worthwhile read. The statement of purpose is worthy:
5. Objects of University.- (1) Every University for Innovation shall –
(a) stand for humanism, for tolerance, for reason, for the adventure of ideas, and for the search for truth.
(b) constantly aspire for attainment of the pinnacle of knowledge and learning;
(c) attempt, through research, to provide a path for humankind free from deprivation and want;
(d) seek to understand and appreciate nature and its laws for the well-being and happiness of present and future generations;
(e) seek and cultivate new knowledge, to engage vigorously and fearlessly in the pursuit of truth, and to interpret old knowledge and beliefs in the light of new needs and discoveries;
(f) seek to provide society with competent men and women to meet knowledge needs of the country, in training professionals, specialists, scientists and researchers for the purpose,
who will also be cultivated individuals, imbued with a sense of social purpose performing service to the nation and to humanity and cultivating the right moral and intellectual values;
(g) develop competent and capable youth with the social and environmental orientation to provide global leadership for the future;
(h) strive to promote equality and social justice and to reduce social and cultural differences through diffusion of education;
(i) provide an ambience of learning that has an international flavour; and
(j) enable the fruits of research to be disseminated in society through promotion of robust linkages with economy and civil society.
The idea is, identify problems of significance, and then build “ecosystems” of research and training around these problems. There is something very pragmatic about it: that by studying the problems, one will come to solutions. It’s how math gets taught. Can’t have solutions without problems. Except that in math classes, the problems one is given have solutions, and the solutions are found by applying methods. The purpose of the exercise is to demonstrate the power of the methods. Here, however, in addressing pressing social issues with problems of significance, there is nothing to indicate that the solutions will come from the study of the problem. A deep understanding of the problem may not lead to any epiphany about how to “solve” it, or “resolve” it. It may well be that the cause of the problem is deep in history or our assumptions, not in technology. It may be that the resolution of the problem comes by making it obsolete rather than futzing with it on its premises. That is, the “solution” comes from a direction that has no regard for the problem at all. It is the ordered mind that delights in planning and rational deployment of resources that considers the solution to a problem to be found in the analysis of the problem. Perhaps. But when it comes to social issues, it may well also be that the analysis of such problems–especially poorly done analysis–is one of the causes of these problems. Oh boy, wouldn’t that leave a mark.
Let’s look then at Chapters IV (Research) and V (Intellectual Property) of the Universities for Innovation Act. Chapter IV says that the government shall provide grants to these Innovation Universities to meet their research and higher education. Interestingly, the Board of Governors for each university will create an “Expert Group for Research Audit” that will evaluate the research using public funds undertaken at the university. This Expert Group will prepare a report with an “explanatory memorandum” regarding actions to be taken as a result of the report. The idea of an expert group evaluating another expert group could be quite interesting. Which expert group should win out? Is this something of a battle among scholarly peers, set up so that one group gets to do research and another gets to pick at it? Or is the Expert Group to be a rah-rah team to show how wonderful the research is, to ensure that the university keeps getting its government funding? There’s really nothing to guide how this battle of expert wits is to play out.
One could see that a kind of “peer review” may be intended, but when it comes to innovation research, the best one can do is ask someone working for you to critique the claims and practices made by someone working for someone else–and make sure they have incentives to provide you with the best evaluation they can, with some assessment of whether they feel competent to evaluate the competency of the elites doing the research. It is apparent that large portions of the peer review systems in the US for awarding of grants and publication of papers simply fails the broader interests of scholarship and discovery, resulting in the consensus dominating choice of research and coteries of reviewers dictating what makes it into conferences and publications.
How will India’s “elite” evaluation of “elites” play out? Will “elites” be willing to be critical, knowing that they will be subjected to the same sort of treatment should they stoop to do their own government-funded research? And if the outcomes of the research are, really, to be found in practices that address the pressing social issues of the day with cutting-edge technology, then is a group of experts needed for that? Can’t one just say–“here’s the pressing social issue, here’s the cutting-edge technology, and whoop!, that social issue is disappearing by the minute”? Wouldn’t take an expert to see that. Anyone on the street could see it. What would take an expert would be if the research hadn’t produced cutting-edge technology, but everyone was asserting that they were trying to, or that the cutting-edge technology so produced turned out to not be particularly useful, and so it represented advances in machines that were destined to do nothing, which is not a particularly good way to address pressing social problems with technology, though building a huge such machine–like a giant statue of a Buddha or a Sphinx (India would have its own version, something even better) that one could climb up in, with lights that shone out across the plains at night, laser lights sweeping the horizon to show the extent of the sublime and the reach of the imagination (or some such, beyond my Western mind)–might be pretty cool for tourism, which in turn might create jobs, bring an influx of new talent and ideas, and open up trading partners and a revitalized local economy. But then that wouldn’t really be using “cutting-edge” technology.
The problem is that it is really difficult to evaluate innovation research, and it is really difficult to find experts to do it, because, in its own way, it is really difficult to know who is an expert with regard to innovation. Yes, one can identify folks who can audit research records to see if anyone was fabricating data or was messy and disorganized, or made sloppy mistakes in analysis, or was cooking the financial books to cover up foolish or corrupt expenditures. Grammarians and actuaries. All well and good, as far as it goes. But is discovery a creature of proper processes? What expectation of discovery is implied in an “Expert Group for Research Audit”? What is the assumption about the moral character of those proposing and doing the research? It may all be very pragmatic, born of experience. For all that, then, one might wonder if research by untrustworthy elites sequestered in Innovation Universities is really all that keen a way to go about innovation-as-change-introduced-in-the-established-order.
The Expert Group is just one of many layers administrative oversight proposed for the Innovation Universities. There are also Boards of Governors, Academic Boards, Auditors, Officers, Research Councils. Lots and lots of management structure, layer on layer, to ensure that whoever it is down under it all who is charged with futzing until epiphany is properly futzing and properly reporting each and every epiphany. Perhaps it is in the nature of legislation, but the conception of a university “of innovation” still appears to be a depiction of the management layers of a university, to which “of innovation” is added to the name. There appears to be nothing that would suggest how a new university might attract talent (other than by means of offer of pay and status), or position itself to be an agent of introduced change in the established order. Certainly the 14 new universities are a change in some established order–that of all the other universities–but will 14 more make a big difference?
“We have pressing social issues!” “Then we need more universities!” What does one get for all that? More well trained folks who have a glimpse of what could be done, but without the means to do it, becoming jaded and bitter? More substantively, consider whether there is a fundamental flaw in the reasoning that if universities are associated with areas of technological innovation, then adding more universities will create more technological innovation. What makes that even sound reasonable? What else is needed? What about industry, what about a city that values talent, what about nice climate, what about an area where money flows freely, without a lot of actuarial bean-counting oversight? What about the problem of creating a pile of “ideas” all fighting to get through the same doorway for more funding, in turn creating a paperwork nightmare for all those diligent reviewers of research proposals, publications of claimed discoveries and epiphanies, and reports of inventions? I suppose then one needs a lot of experts to sort through the work of other experts. A whole economy built just for experts by experts. I guess that’s expectable.
In the analysis of “more” consider what happened when the US government set out to stimulate the economy by pumping prodigious quantities of funding into university research for two years. What did the NIH and NSF do? Did they design whole new programs to focus work into areas that would stimulate the economy? Not hardly. They funded more of the same grant proposals than otherwise. The ones that had scored worse. Imagine a distribution of reviewed grant proposals. What might that look like? Are a few clearly important, and then there is a long shoulder of roughly the same quality? Are all of them mind-bending and folks just throw darts or play politics to get at which get funded? Or is it just politics from the get-go? The NIH and NSF behavior suggest it’s politics, for the most part. More funding means more politics, and that’s good for anyone expanding an agency’s sphere of influence, because then if someone does get lucky and agency money has touched their work, why then the agency can claim credit and be assured of more funding.
Cynical? No, please. Don’t get all fussy about the world being a place of roses and unicorns wherever there’s lots of government money. And this is not about assuming everyone is corrupt and therefore deserves to be supervised, or better, imprisoned in order to do their work. Aside from all this, why should more universities create more technological innovation? An epiphany is not innovation. An invention is not innovation. Innovation is change in an established order. More competitors for changing an established order may create more options for change–fine, so far–but also may create a logjam that makes it difficult to choose any one of them, or for even a set of them to attract enough investment to become economically viable–not because there is a “funding gap” (oh, please!), but because the mere presence of a host of similar competing such claims for invention spreads attention and investment too broadly to be a useful way of going about it. Worse if the various inventions are all bits of roughly the same thing, as has apparently happened in swaths of nanotechnology. Some neat ideas come along, some researchers turn their attention to these things, and then there are buckyballs and carbon nanotubes and quantum dots–and then there is a ton of government money going to more and more universities that all stake out there claims on every bit of how to make a carbon nanotube, how to covalently bond something to it, how to characterize the properties of the thing so constructed, how to manipulate the thing constructed, how to apply that thing to some application. And so it goes. A government-created mess of claims, rights, demands, expectations. You wanted a coffee shop conversation and got a coupon crazed crowd overwhelming the shop, the street, the town. More can mean worse. Show how that is merely cynical.
Perhaps the thing with the greatest possibility in the Universities for Innovation Act is this little bit (Chapter III, 12(4)):
(iii) to create academic posts other than that of Professors Emeritus or Professors, and to define the duties, terms and conditions of service of teachers and other academic staff,
other than Professors Emeritus or Professors:
Perhaps in an Innovation University, these other academic posts, not professors or post-professors, is the wild thing, the crazy jewel in the whole mess of actuarial order–perhaps this clause is buried away to allow the universities to create a class of mischief-making, free-lancing, rogue academics with posts that let them get out and see the world, futze with stuff without having to write proposals, and make things happen to the shock and awe of the proper academic consensus. Then again, perhaps not. But it would appear this is the one place in the whole Act where there’s a chance to do something really different.
Now we come to Chapter V. These are innovation universities. They are to be something new, at least as far as “other academic posts” is concerned. How then do you think they will handle intellectual property? Surely some new way that opens up opportunity and excites talent to work at the university and use it as a springboard into the stream of pressing social issues. Brace yourself.
25. Disclosure of intellectual property created out of publicly funded research and vesting of title of such property .– (1) Where a University for Innovation creates new
knowledge from research which is funded by the Central Government, or by any body under the Central Government, and leading to an intellectual property, such University shall immediately as the fact of actual realisation of the public funded intellectual property comes to knowledge, make a disclosure thereof to the Central Government or such authority designated, by notification, by the Central Government.
(2) The University for Innovation shall within the period required by any law for the time being in force for protection of public funded intellectual property, intimate to the Central
Government, its intention to retain the title of the public funded intellectual property and the Central Government shall allow the title of such public funded intellectual property to vest in
such University:
There you have it. The secret American university administrator version of Bayh-Dole–government funds, report inventions, choose to “retain title” and the inventions vest with the institution. This is not Bayh-Dole, but the distorted reinterpretation of Bayh-Dole that has stagnated research in the US, interfered with industry collaborations, and built up a huge uncompetitive monopoly of university administrators all full of public spirit but doing very little. Let’s call it “Bligh-Doel” in honor of the over-demanding captain of the Bounty and the Old French word for pain and anguish. (Again, just to be tearfully clear: the activity of technology brokering is worthy; the intentions of many university tech transfer folks are sincere; and a number of them are very capable–but that is not the point. A monopoly consensus of sincere, well paid folks is no defense for what is taking place in the US with regard to innovations arising from university research.)
Following the “provided” there is a list of conditions that track nicely elements of Bayh-Dole, down to declarations of “exceptional circumstances”. The universities are then given the authority to do anything they want with the intellectual property:
The University for Innovation retaining the title to a public funded intellectual property shall protect and utilize it in such manner as it may deem fit.
This is well beyond the Bayh-Dole Act proper. Under Bayh-Dole, agency funding agreements must include a patent rights clause that directs those obtaining title to inventions created with federal support to use the patent system to promote the use of the inventions, with reporting requirements for date of first commercial use or sale. Under that patent rights clause and the funding agreement, an owner of a university-originated federally supported invention is but the steward of the patent right, acting on behalf of the public as represented by the government. (Check it out–see 2 CFR 215.36 and .37–the fundamental clauses of most funding agreements the US government forms with universities). Under Bayh-Dole’s standard patent rights clause, inventors, not their university employers, own their inventions, and it is inventors that agree to protect the government’s interests and thus become parties to the funding agreements. (Again, check it out at 37 CFR 401.14(a)). The US Supreme Court in June 2011 made this stuff clear enough for anyone who wants to work it through.
But the India version of Bligh-Doel is much worse than all this. Bayh-Dole applies only to inventions which are or may be patentable. The India version applies to all intangible property for which there can be construed “rights”:
(g) “intellectual property” means any right to intangible property, including trade mark, patent, design, and plant variety as defined under the Copyright Act, 1957 [14 of 1957], the
Patents Act, 1970 [39 of 1970], the Designs Act, 2000 [16 of 2000], the Semiconductor Integrated Circuits Layout-Design Act, 2000 [37 of 2000], the Protection of Plant Varieties and Farmers’ Rights Act, 2001 [53 of 2001], or any law governing right to intellectual property and related rights for the time being in force.
Stripped down it reads thus:
(g) “intellectual property” means any right to intangible property, including . . . any law governing right to intellectual property and related rights for the time being in force.
That’s much broader than anything in Bayh-Dole, or even in the American version of Bligh-Doel. It amounts to state control of scholarship. The connection is clear–any knowledge that can be controlled via any claim of right under intellectual property laws or any “related” theories of rights (which may easily include trade secrets–perhaps too dark to be stated expressly in legislation intended to be so bright and hopeful) is under the control of the Central Government, which vests ownership of any controlling interest in that knowledge with the administration of the University for Innovation. The only apparent role for the “intellectual property creator” is to agree to a sharing of income or royalties, should there ever be any:
(2) The income or royalties arising out of the public funded intellectual property shall be shared by the University for Innovation with the intellectual property creator in accordance with the provisions of any agreement which may be entered into in this regard between such intellectual property creator and such University.
It is not even clear what the nature of such an agreement might be. If it follows the trending US approach, such intellectual property creators will be required to sign such an agreement as a condition of employment on whatever terms the University for Innovation decides to impose. Not really an agreement at all. And there’s really nothing for it if the intellectual property creator objects, because federal law has already stripped him or her of any ownership or other right in whatever new knowledge he or she has created. In all, this looks like India has jumped ahead of the US, and has adopted the dream-world vision of the ultimate version of Bligh-Doel–that the government just pours money into the university without the need for all the piddling, wasteful, expensive, mind-numbing grant proposals, the government vests title in all scholarship having rights of any sort with the university, and the university does whatever the heck it wants to. It is the triumph of administrative control over scholarship. The new knowledge is not even constrained to “cutting-edge technology”.
At best we have this odd definition of “utilization”:
(u) “utilisation” along with its cognate meanings and grammatical variations thereof, means the manufacture of a composition or product, the practice of a process or method, operation of a machine or system, or commercialisation thereof;
This definition would appear to include the usage “utilize it in such manner as it may deem fit.” That is, the University of Innovation is given authority to manufacture, practice, operate, or commercialise the new knowledge as controlled by whatever possible right there may be. If there is no possible right in the new knowledge, then it isn’t within the definition of intellectual property.
What then is the idea of new knowledge is within the ambit of this legislation. It cannot simply be that new knowledge is the inheritance of all people, for then there would be no purpose in securing institutional control of it. Nor can it be that new knowledge is somehow best cultivated for a time with those that have created it, to see what they can do–no, this law requires prompt disclosure and efficient stripping of personal rights. It would appear that new knowledge is envisioned as something like gold nuggets in a stream bed, with the government allowing university administrators to stake claims and hire prospectors to move along the stream, at some bit of personal misery for which they are compensated, to collect these nuggets and bring them to managers for weighing and sorting and subsequent use. Bonuses for bigger nuggets. Not much at all for standard nuggets.
It is these nuggets that will become “cutting-edge” technology, and that technology will solve the pressing social issues of the day. And 14 more universities with nugget-gatherers headed up by a person with international reputation for nugget gathering will do the trick. It all sounds so happy and possible and doable. And maybe something will come of it, like doing rain dances and breaking chicken legs and starting 125 mostly moribund companies over five years. Any action in the world could disturb some sleeping beast. Maybe we all live in the mines of Moria. One little cough could startle a ballrog. And ballrogs do have a way with changing what counts as a pressing social issue!
But beyond this faith in the luck of even the dumbest plans and ill-timed coughs, it appears that the Universities for Innovation is really more like the Construction of a New Island of Administrative Happiness With Government Funds Built on the Currently Trendy Proposition that More Such Islands Will Create Technology That Will Solve Poverty and the Like. The proposition does not have be sound, or proven out, say by starting with one such U f I, and seeing how it goes–all the proposition has to do is deflect criticism of the plan. If one is against the U f I’s, then one is against addressing the pressing social issues, a do-nothing cynical person for whom nothing can be good enough. Or something like that. One is also against “cutting-edge” technologies, which apparently come preferentially from government funded research at universities where administrators take control of everything early and often, to their glee and great delight, all of course properly supervised by panel upon panel of experts to ensure that everything is proper and goes according to plan, all the way out to the bit where, um, administrators really have no idea of what to do with the new knowledge stuff they have been in such a good way to own and control.
The structure of the U f I dream, if it can be called that, comes in two parts. The first is a vision of government investment in a wonderful, ordered, administrative structure dedicated to everything that is good and virtuous. This first vision consists of a financial action–the allocation of money for administration–and a dedication, much like breaking a bottle of bubbly on the prow of ship, associating that administration with something we all would like to have. The second part of the structure is the part in which this administration in action actually produces the desired results. This is where the thing all breaks down. Administrators have a terrible track record doing anything at all, except where they are bungling, negligent, corrupt, and given to profound accidents. Then maybe something happens. We do not have a literature in which administrators preside over cutting edge technologies. We don’t even have much of a literature on how cutting edge technologies solve our pressing social issues. Maybe some do. I, personally, am very fond of anesthesia and metal-wound guitar strings. It’s just that these kinds of things come from many sources, and universities are just one, and research at universities is just one of those bits, and government funded research is just a bit of that. Now wrap that little bit up–forget how much money is spent and consider the outputs only–and ask how much of that would you like running through the thumbs of administrators as the key, legislatively mandated first step toward solving pressing social problems. I just don’t see it. But I do get the part about the excitement for administrators, faculty, and students alike for government spending on new universities. That part is interesting. Why 14? But hey, that’s a commitment to higher education rather than jails and bombs, so it’s a good thing in its way. But as for the part about innovation, I’m not impressed. I’m sad. It’s the dullest, most boring use possible of the exported Bayh-Dole Act in its Bligh-Doel form, its Bah!-Dolts! form, the form that a coterie of university administrators, their patent happy attorney friends, second-tier speculative investors, and a few wealth-hopeful faculty want to push on the world as the salvation for pressing social problems.
Surely folks can do better with just a little effort. And surely folks in America can speak up to defend the Bayh-Dole Act in its original form and put everyone on notice that the Bligh-Doel Act is not available for export from America, and if other countries want to hold new knowledge captive for administrative thumbing, well, it’s in their own hands to do that. If India wants universities for innovation, then start by setting the new knowledge free, and letting the talent that actually does something with pressing social issues and technology to explain how the university can help, and how the government can help. That would mean, however, an environment with the smarts at the periphery, not under a central thumb. Hard to imagine–but there it is–idiographic, not nomothetic. A few grammatical rules, but not control over the expressions formed by the grammar.
At the bottom of this, perhaps, is a kind of government worship. In a world of uncertainty and rampant corruption, where gods have fled, perhaps government presents with the best visage. Government can step in where corporations seek their own profit and leave broken workers and pollution in their path; government can step in where there is poverty and tax the rich and play Robin Hood for the poor; government can bring order and integrity to the world of innovation, where public funded investigators may be tempted to run off and profit on things that the government properly should own and deploy for the rational greatest good. These are all high thoughts, and one might hold out these hopes for government. But government, too, has its own forms of inability, corruption, foolishness, and waste. One would do well not to entrust such government with the control of scholarship, or to impose processes for the deployment of that scholarship into the world of technology or social issues.
It may be the problem is not tractable. Institutional worship, however, is not a remedy for pressing social issues nor for the production of cutting edge technology, nor for the dream of getting wealthy by getting to where the government money is going, and if that is on the premise of social issues and new technology, then so be it. While the people around may be filled with self-interest, incompetence, indifference, corruption, and foolishness, we are not better off taking the scholarly part of the crowd and subordinating its work to the power of the state, or the institution. A world that corrupt has no place for universities. Much better then, to affirm a faith in individuals working in association, to provide resources with accounting for use, without dictating that use, and see what happens. It may be that unplanned things in our future, from unexpected sources, provide the things that address the problems we face. Maybe even cutting-edge technologies developed at universities expressly dedicated to innovation.
For that, folks should think again about what it means for a university to:
a) stand for humanism, for tolerance, for reason, for the adventure of ideas, and for the search for truth.