We live in a society dominated by the public stock corporation and the manner in which it engages work. It has only been since the late 19th century that the public stock corporation has come to have this role, though corporations have been around much longer. The big boost came with the transcontinental railroad corporations, luring European investors and setting up scams to route money from the railroad companies to the construction and development companies that did the work to build the railroads and their infrastructure. Conveniently, these construction and development companies were owned by the same folks who sold the shares in the railroad companies, and these folks saw to it that the construction and development companies were paid well for their services. So sad that the railroad companies then failed and European investors lost their shirts.
With the corporation came an innovation in the idea of the relationship between the corporation (which was given the status of a fictional person–a big deal under the 14th Amendment to the US Constitution) and its workers. This was the concept of the “employee.” We had the noun “employment” and the verb “employ,” but “employee” is new and distinctive to the corporation. Look at this ngram from the Google nGram Viewer:
While “servant” has had a long run (and decline), and “worker” emerged with the industrial revolution–something Marx worried over–“employee” has arisen much later, and is a creature mostly of the last 100 years.
Compare this with the ngram history of “employ,” “employment,” and “employer”:
It’s clear that employers “employed” workers and servants, and that there was plenty of discussion about employment, but that the idea of “employee”–the abstracted object of the “employer”–is a recent innovation that strips the work relationship of any past societal expectations. A worker works, a servant serves. An employee is employed–what the employee *does* is not discoverable in the word. A worker has a job, a servant has a master. An employee has an employer.
All this matters because university faculty are “members” or “staff” and are “appointed”–and not (until recently) referred to as “employees“:
I have multiplied “university employee” by 10 so you can see it is not merely a flat line after about 1960. But all of this is minutiae when we add “professor” to the mix:
A faculty is composed of members, most of whom are professors. Professors profess. “Profess” is an old word, now mostly out of favor, but in its day 500 years ago, it meant either to “take a vow” (as to join a religious order) or more generally, “to declare publicly” (from whence we get our ideas regarding faculty instruction and publication). Professors do both–they become members of a faculty, and they commit to teaching and publishing. Back in the day, students paid professors directly. This was a most interesting thing, as it had a remarkable effect on professorial diligence. That payment was called “tuition”–the root meaning of tuition is “guardianship” and by the early 19th century means “payment for tutoring.” Faculty were not “hired,” they did not have “jobs,” they professed–they took a vow, they became members of a faculty. Even “joining” a faculty is relatively recent–but not nearly so recent as talk about “hiring” and “jobs,” which dates only from the last fifty years:
The rise of the public stock corporation placed fresh emphasis on the control of work. Marx, in particular, had railed about the bourgeoisie stripping artisans of their skills and hiring them only for their time. Henry Ford notoriously quipped, “When I ask for a pair of hands, why do they always come with a brain attached?” In the early 20th century, Frederick Taylor, with his twisted views on “scientific management” put the matter in order for the corporation, assembling work into management and workers, and then, applying Adam Smith’s division of labor and Marx’s great fear of machines replacing the intelligence of workers, Taylor showed how one could hire less skilled people at the lowest possible wages, if only one had managers that dictated the work. The smarts, by design, were with management. The worker–previously the artisan, the skilled craftsman, the observer, the clever tinkerer–was a source of motive power and repetitive task, to do the jobs that machines could not do, such as keeping machines running and fitting the outputs of machines into final products. And thus was born the modern business school and training for the “officer” class in management. Education for the masses focused on how to be compliant, civil, and have the basic skills needed to care for machines.
This pattern of thinking has become widespread, and is now seen as normal, as once having a plantation operated by foreman and slaves was seen as normal, if not natural. Korzybski, in Science and Sanity, quotes Aukland Geddes, who in 1920 worried that the West was on the edge of change: “A realization of the aimlessness of life lived to labour and die, having achieved nothing but avoidance of starvation, and the birth of children doomed to the weary treadmill, has seized the minds of millions” (4th ed, 49). Put in the form of a Calvin & Hobbes/Dune mashup, it goes something like this:
University faculty members do receive pay for their positions–one could slip and say they get paid for their work, or for doing their duties, but that would be to participate in the innovation in which faculty are called employees, as if they did the bidding of their corporate masters, er, managers, er, administrators, er, senior university officials. But the pay is not compensation for the work they do by assignment; rather, it is a stipend, to permit them to pay for their daily needs, and thus to get on with instruction, research, and public service without having to have a distracting side job to grub for money.
The university does not pay faculty for their time (as if the university were run by anti-Marxist industrialists); the university does not pay faculty for their work product (the university historically has been notably disinterested–by policy, no less–in acquiring for its own benefit faculty work product). Of course, once one adopts modern, innovative words and the mindset that goes with them, then it might seem only “natural” for the employer to take, own, and have the benefit of what the employee produces on the “employer’s time” and using the “employer’s resources.”
There are others in this same class with faculty: legislators receive a stipend to participate in political representation, but the state does not demand to own everything the legislators do that might be related to their activities, nor does it attempt to distinguish between political activities and private activities, other than for using one’s political position for profit. The reverse just doesn’t happen–to induce people capable of things of value to run for public office, in order to claim whatever they do in their area of expertise as an asset of the state, to be sold off to help to pay for, say, elections, or more likely, to support the salaries of executive branch administrators. Similarly, independent contractors receive pay for work product, but what they learn, what they develop by way of tools and methods, what they invent, remains their own. Students who receive scholarships are, in a sense, paid to go to school, but the donors of the scholarship do not claim to own the student’s work, or ideas, or inventions.
The provision of money on its own creates no “natural” mandate that everything–or anything–the recipient might learn or develop of value should pass to the party with the money, commissioning the work. Deliverables are negotiated, not a natural right vested in the party at need for services. Most any paying instructional relationship–tutoring, private music instruction, coaching–follows the same pattern. A high school football coach receives pay, but the high school does not demand to own the “know how” the coach develops, nor seek to control the playbook the coach develops, the practice routines, the ways of tracking the development of players, the talks on character and concussion protocols. Artists and musicians, working with the support of patrons, also do not expect that the patrons will own their entire output, or even works the patrons have commissioned and provided money for. Sale of a work, let alone sale of the copyright in a work, is entirely removed from the mere exchange of money to permit work to take place without distraction.
It’s principally in the world of public stock corporations that an employer presumes a natural right to the work of the employee. In for-profit settings, corporate management, it is asserted, has a fiduciary duty to look after the interests of the owners of the corporation, the shareholders, who conveniently are arranged to enjoy a potentially unlimited upside and protected from the illegal or damaging acts of the corporation (as slave, or golem, or machine, or “person”) that should seek at every instance the owners’ best financial interest, even if how this interest might best play out is left to the corporate board to decide. Dodge v Ford puts it all in perspective.
Intellectual property–and in particular patents and copyrights–come from a different time, and IP law maintains the distinctions and practices of the time before the use of “employee” to strip the nature of work, and the work relationship, from individuals who work at a place, work on behalf of others, or work by commission. As is clear in the discussion of University of Michigan’s goofy mashup of policy, employment, and intellectual property, employment in intellectual property law is not what is presumed in the use of “employee.” Employment involves the common law of agency. Intellectual property expectations follow on the nature of the employment. What’s critical is the scope of employment, not what arises in the activities of the employee.
We will take this part slowly, because we have to work outside the paradigm of “employee” that so easily volunteers its patterns of discourse and thought. “Scope of employment” means something very different for risk management. If a worker is the servant of a master, then if the servant causes damage, the master is liable, respondeat superior. A worker driving to the store to buy supplies for the office has an accident. If the worker is the servant of the company, and not an agent (the difference lying in the company’s right to control the worker’s actions), the company may well be liable for the accident. Masters and employers are liable under respondeat superior; principals that engage agents generally are not. In the analysis of whether a worker is a servant (or employee) or an independent contractor (or agent), scope of employment matters, as do the tests of agency.
For patents, however, “scope of employment” has little to do with the disposition of inventions. One has to contract for an invention in order to gain an interest in it. Mere employment creates no natural right of the employer to an employee’s inventions. Even the use of the employer’s resources creates no such natural right, any more than using a student’s piano to write a new song gives the student a natural right to the copyright in the song. The situation does not change if the employer creates a policy that asserts that the employer does have a natural right, despite the law. Or follows the policy up with the claim that the policy has the force of law (as some public university attorneys claim) or that the policy has the force of contract, that by contracting for employment, the employee gives up all right to inventions.
To put it in silly, but stark terms, imagine that you draft a notice and publish it on the internet that asserts, as a matter of contract, that you shall own the clothes of anyone who walks in your yard, that walking in your yard constitutes objective acceptance of this contract, available publicly, as if the yard is posted not just against trespassing, but with an asserted contract for payment for the benefit of walking in the yard. Imagine that you have a policy (and post it) that if anyone should park a car in your driveway, they have agreed that you have the right to own their car. In either case, the outcome is beyond reason–there is no contract, no meeting of the minds, no consideration, nothing equitable about the offer relative to the personal property sought.
Patents disavow this pattern, by design. To pass to an employer, the employer must negotiate separately for the invention rights. It may be a policy of the employer that a condition of employment is the assignment of rights to inventions, but for that policy to be implemented, there must be some agreement between the employer and employee other than that of employment. Asserting that the employer shall own, or that the employer has a right to own, or that the employment agreement includes acknowledgement of these assertions does not get at the fundamental relationship–an individual is, unless expressly hired to invent, always an independent contractor with regard to patentable inventions. The employer, should the independent contractor use the employer’s resources or information or “time,” gains a “shop right”–a freedom to practice the invention. That’s the equitable exchange, that’s the “natural” right, if there is one. Anything else requires something more than employment, more than an assertion by the employer, more than an assertion that the assertion is contractual in nature.
Look at it this way. If the scope of employment expressly includes “inventing” and the employer provides direction and control for what is to be done to invent, then the employer has contracted for the rights to the invention. If the employer has not done so, then there will be two agreements, one for employment and one involving patentable inventions. The conflict comes if the agreement for employment conflicts with a claim regarding rights to patents. If a faculty member is “hired” to (let’s call it) “profess,” then any added claim to patents is in conflict with the employment relationship, and is not a “supplement” to it. The two agreements cannot co-exist. Which one is superior? Which one follows a meeting of minds, with consideration? One would think, the professorial relationship. Otherwise, the sections of policy on academic freedom and tenure, and open publication–at the heart of the faculty relationship with the university–are made void (or, are claimed not to be central to faculty appointments at all, despite what faculty members might *think*. To argue this way requires disavowal of the idea that a contract involves the meeting of minds with an intent to be bound. It is as if a contract benefits from “ignorance of the university’s true intent in the relationship with you is no excuse.”)
Copyright runs in a similar, but distinct pattern. The Supreme Court has made clear that for a work to be made within the “scope of employment” one has to look to the common law of agency with regard to the work that is produced. A university, unlike most for-profit employers, disavows the right to direct and control scholarly work, and does not. So there’s not even the starting point for a claim that a university, when it calls itself an “employer” and its faculty “employees,” that it has magically through the use of new terminology rescinded the mutual understanding of the relationship it has with members of the faculty.
A faculty member is not employed for scholarship, and not generally for research, even if scholarship and research are general expectations of the university and the public. If a university wants the benefit of specific work, the university contracts for it specially, on a voluntary basis, not as a “condition of continued employment.” That contracting carries with it its own offer, acceptance, and consideration. Such provisions are found routinely in pre-Bayh-Dole university patent policies, and their remnants are often retained in current patent policies, and these provisions are routine even now in university copyright policies. It is just that university patent administrators keep pounding away at changing the fundamental relationships at play in order to gain ownership of ever more assets to attempt to sell off.
They try to limit the scope of these provisions with the loose concept of “traditional works of scholarship”–with no clarity of thought with regards to what “traditional” might mean and when a “tradition” begins or ends, as if “traditional” is a period of art history. They try to limit the scope, too, by claiming that patent policy trumps copyright policy, so if some work is called an “invention,” then patent policy controls, the university claims ownership, and all rights under copyright are taken along with any patent rights. They then expand the definition of “invention” from “is or may be patentable” or “potentially patentable” to “whether or not patentable” and then throw in all manner of know-how, show-how, data–anything, really.
So the patent policy is manipulated by operation of definitions to trump copyright and furthermore expand into the domain of ideas, information, expertise, awareness. One ends up with a patent policy that claims non-patentable assets, asserting these are to be treated as if they were patentable. It’s all administrative fiction and cleverness and bullying and bullshit. But it is also quite real, costly to resist for any individual, and keeps its existence through a combination of chronic fraud, trading on greed and fear of noncompliance and visions of sparkling futures, and complexity of the subject, for which only self-styled experts can have a voice. The patent policy becomes an instrument to destroy the faculty relationship with the university (and with the public) and replace it with corporate employment. The claim is that doing so is necessary to change the “culture” of the university to one that is “entrepreneurial”–but what they actually do is just the opposite of their words. They culture they create is one of bureaucracy, of complex rules, of everything that’s anti-entrepreneurial. They create a nest for themselves. They “eat the brain” of the organization, to use Matthew Stewart’s turn of phrase in The Management Myth (especially pages 68-69).
Unlike a for-profit corporation, a university is not “in business” of producing scholarly or technological products; it does not control “research” or “information” regarding that research. The university may be in the “business” of managing accounts holding funds for faculty-led research; the university may be in the “business” of receiving tuition payments from students. But it does not generally hire for invention. It’s much the reverse. It “hires” (appoints) faculty for their qualifications to teach and investigate, to train and publish. If it expects inventions, it contracts expressly for that purpose. Tucking a claim to own inventions made “within the scope of employment” or “resulting from educational activities” or “within the scope of the area of practice for which one has been hired” runs against the facts of “employment” as well as reason as well as public policy.
A university, in appointing faculty, exists to provide the faculty with resources with which to do their work, their professing. The provision of those resources is part of the employment relationship. No one would work at a university that refused to provide resources–classrooms, laboratories, shops, libraries, information systems, clerical assistance, parking. The same is true for students. They pay tuition, and with the matriculation relationship comes the freedom of the university’s resources. They may create, compose, make, invent, and learn, and graduate in full possession of their work, without any claim on it by the university. Except, of course, now university patent administrators have advocated for policy assertions just the opposite, denying this fundamental relationship.
The use of “employee” in reference to faculty in university documents is loose, not precise, language. It is the language of analogy, metaphor, of people wanting to be current, ready to adopt any ready volunteer term that might show up. “Employee” is a usage of dull HR managers who lost interest long ago in faculty standing, and of senior administrators who don’t think words mean anything, until it becomes useful to reason from the word itself rather than what the word was originally intended to stand for, what the word in use meant.
What do we get to? Faculty are not “employees” of the university for their scholarship and their research. For intellectual property, the university does not control their work or contract for ownership of it. Patent policies that appear to claim otherwise deny what the university has already established as settled policy and commitment. Faculty should–really, must–challenge the current batch of patent policies, get them voided, tossed. There’s no room for trying to fix them–most of them are written by incompetents, a mish-mash of borrowings of legal-sounding wording, clever disguises for later administrative nastiness, effective only by isolating individual faculty members from the rest and shaking them down for their creative and inventive work.