University of Misery’s IP Policy Scam, 3

But there’s more, of course. Under University of Missouri policy, faculty are not ordinary employees. The Collected Rules and Regulations call out faculty for special treatment. Here’s a concise statement of this fact from a policy on an employee’s ability to work (330.100):

Faculty members have rights that stem from the University’s Collected Rules and Regulations, from the application of the general principles of academic freedom, and from the role of faculty members in the shared governance structure within the University of Missouri.

Faculty Bylaws, Collected Rules and Regulations 300.010 goes into greater detail on the special rights of the faculty. Let’s start with “Academic Rights” of the faculty:

Academic Rights — Faculty members have the right to freedom of inquiry, discourse, research, publication and teaching. These rights are accompanied by their correlative responsibilities as noted in 300.010.C.1 [this part] and C.2 [on faculty responsibilities] in this section (Also Ref: Sections 310.010-310.070).

Faculty have the right to “freedom of inquiry” as well as “freedom of research” and “freedom of publication.”  What do these rights mean for the ownership of inventions? First, that the university does not assert a right to assign faculty to inquiries. Faculty have freedom of inquiry–it is faculty who decide what they will study. Faculty also have freedom of research. To the extent that we can differentiate research and inquiry, the university also disclaims any right to assign or control faculty-conducted research. Think about that. The university disclaims the idea that faculty are “employees” for the purpose of inquiries or research. That is, faculty are not agents of a university master for the purposes of inquiries or research. That’s the necessary result of the university asserting that faculty have these academic rights.

Now consider the freedom of publication as it relates to inventions. There are two elements that must be considered. The first has to do with publication and preservation of patent rights. If faculty have freedom of publication, then unless they have agreed otherwise–voluntarily–they also have the freedom to publish an invention rather than seek to acquire a patent on it. That is, just because a faculty member happens to invent does not mean that the university suspends academic freedoms in order to claim ownership of the invention and forbid publication until the university has filed a patent application. This will become ever more clear in a moment as we move through the Faculty Bylaws and statement on academic freedom.

A second element regarding publication and inventions has to do with the nature of a patent itself. A patent is, in its essential social exchange, a publication. The exchange is: an inventor publishes a complete account of his or her invention and in return receives an exclusive right to the invention for a limited time–that is, a patent. The patent is awarded in exchange for publication of the invention through the patent system. Now the Missouri Faculty Bylaws in the Collected Rules and Regulations states that faculty have freedom of publication. A patent is a publication. How much extra logic do we have to apply to this point? Faculty–unlike other employees–are assured that they have the freedom to decide when to file a patent application, just as they have the freedom to decide what other publications to pursue.

The Faculty Bylaws also assures faculty of their “civil rights”:

Civil Rights — Faculty members do not relinquish any of their constitutional rights by virtue of employment with the University of Missouri (Ref: Sections 330.020, 330.030 and 90.050).

Actually, the Bylaws here insist that the university does not force faculty to “relinquish” any constitutional rights “by virtue of employment.” That is, employment, for faculty, does not mean that faculty may only speak or act as directed by their master, the employer, the university, for the benefit of their master, the employer, the university. More importantly, however, is the fact that the right to obtain a patent is a constitutional right, established by Article I, Section 8 of the U.S. Constitution. This statement on civil rights, then, is entirely consistent, with regards to inventions, with the statement on academic rights. The university by its own policy can make no general claim on invention ownership based on employment of faculty members. And as we have already seen in the patent policy, the university restricts its interest to assigned inquiries and use of certain university resources in a substantial degree.

The statement of academic rights in the Faculty Bylaws references “responsibilities” in two following sections. These provide further light on the matter of inventions:

Professional Ethics and Academic Responsibilities — The professor, guided by a deep conviction of the worth and dignity of the advancement of knowledge, recognizes the special responsibilities placed upon him/her.

A faculty member has special responsibilities based on the advancement of knowledge. That is, these responsibilities are directed not to special service to an employer, but to a broader goal having to do with knowledge.

His/her primary responsibility to his/her subject is to seek and to state the truth as he/she sees it.

The faculty member has a primary responsibility to state professional judgments regarding “the truth.” This primary responsibility is not qualified to mean “to state the truth in a manner that preserves the money-making interest of the university from dealing in patents on inventions made by the faculty.” No doubt it could be, but the fact is, it isn’t.

To this end he/she devotes his/her energies to developing and improving his/her scholarly competence. He/she accepts the obligation to exercise critical self-discipline and judgment in using, extending and transmitting knowledge. He/she practices intellectual honesty.

A mania for self-improvement, but with judgment and intellectual honesty in matters of knowledge. These are good things, in their way. And a concern for competing interests:

Although he/she may follow subsidiary interests, these interests must never seriously hamper or compromise his/her freedom of inquiry.

We return to “freedom of inquiry,” which now is associated with the pursuit of truth, intellectual honesty, and judgment in “extending” knowledge–and what is an invention but the “extending” of knowledge? The faculty member uses “self-discipline,” then, in extending knowledge, including inventing. That is, the faculty member is not expected to use university discipline in inventing, but rather the member’s own discipline. The critical element here, at the end, is that other “subsidiary interests” are also permitted, and may even “hamper” or “compromise” freedom of inquiry, but never “seriously.” Again, these subsidiary interests are ones of the faculty member’s own choosing (“may follow”) and not ones dictated by the university. Further, it is clear here that the university recognizes there may be conflicts of interest and commitment, but so long as these conflicts are not “serious,” they are acceptable activities. We might consider in the list of such subsidiary interests obtaining patents, starting companies, consulting with industry, providing technology to the general public, serving on editorial boards, serving on company boards, and advising government.

The Bylaws then discuss faculty responsibilities in the context of teaching, collegiality, institutional membership, and as a “member of his/her community.” For our purposes, the responsibilities for institutional membership are most important:

As a member of his/her institution, the professor seeks above all to be an effective teacher and scholar.

Again, another statement that the faculty member’s primary duty (“above all”) is to scholarship (and effective teaching). That is, this duty comes before any employment duty, even a fiduciary duty to benefit the university “as an institution.” We might pause, then, over the use of the term “member” rather than “employee.” Whatever status “employee” has, a faculty member’s activity as a “member” of the institution rather than as an “employee” of the institution takes precedence. The academic and civil rights announced by the Bylaws would mean nothing if university employment meant that the university could limit any of these rights by fiat whenever an administrator wanted to do so.

Although he/she observes the stated regulations of the institution, provided they do not contravene academic freedom, he/she maintains his/her right to criticize and seek revision.

We have here a remarkable statement with regard to a faculty member’s responsibilities. The faculty member’s obligation to “observe” the “stated regulations”–that is, the Collected Rules and Regulations–does not extend to regulations that “contravene academic freedom.” “Academic freedom” has been addressed as “academic rights” in the Bylaws and gets its own treatment as well in a separate policy of the Collected Rules and Regulations. Clearly, the use of “above all” and “primary” are not random. Academic freedom permits a faculty member not to observe university regulations that would “contravene” or conflict with that freedom. Consider, then, again freedoms of inquiry, research, and publication–among the other freedoms set forth by university policy–in the context of invention ownership. If the university claimed by policy ownership of an invention, and in doing so contravened a faculty inventor’s academic freedom, the faculty inventor is not obligated to observe the policy. That’s what policy itself states. Makes sense, if one is going to be serious about academic freedom. It also makes sense for a policy directed at innovation: freedom is to be preferred over institutional control, as a general rule.

We then get another statement with regard to “subsidiary interests” and “primary responsibility,” which is to seek and state the truth, practicing self-discipline and intellectual honesty:

He/she determines the amount and character of the work he/she does outside his/her institution with due regard to his/her paramount responsibilities within it.

Not only does a faculty member have no obligation to observe university policies when those polices contravene academic freedom but also a faculty member decides what work he or she does outside the university. That is, it is a faculty member’s decision whether work will be inside the institution or outside, whether for the university or for others. This choice is entirely consistent with the academic rights set forth in the Faculty Bylaws. Any discussion of faculty “employment” must start with the fact that for inquiries, research, and publication, faculty are not employed unless they expressly agree to be employed, to invent for the university, to take direction from university administrators. To find that the university has a claim to own inventions made by faculty, there must be, somewhere, the record of a voluntary choice made by a faculty inventor.

When considering the interruption or termination of his/her service he/she recognizes the effect of his/her decision upon the program of the institution and gives due notice of his/her intentions.

This bit has to do with faculty considering leaving the university. Notice that here, too, the word used is “service,” not “employment.” The Faculty Bylaws is careful to avoid “employment” in all discussion of faculty activity. Here, at least, the policy is consistent. These statements are repeated in the Collected Rules and Regulations, 330.110, Standards of Faculty Conduct as a “Statement of Professional Ethics.”

 

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