Who Owns Digital Learning Resources?–2

We are looking at an article by Hal Plotkin, published a couple of years ago, that argues against the extension of Bayh-Dole to cover educational materials. Plotkin creates a dichotomy between universities wanting to play at being, or pandering to, venture capitalists on the one hand, and open innovation on the other. That’s a worthwhile distinction, to the extent that one sees venture opportunities and open innovation to be mutually exclusive. Plotkin also moralizes this dichotomy by making it appear that venture opportunists are conservatives or Republicans and open innovation folks are Obama-loving modernizers of federal contracting. The policy issues are difficult enough without such superficialities.

Now Plotkin gets into Bayh-Dole:

In practical terms, what the university administrators seek is an extension of the Bayh-Dole Act, . . .

That’s pretty much it. Look at how university administrators–with help from their lawyers–have defined “invention” to include almost anything, even to the point of including non-inventions (“software,” for instance, or “technology” or “know-how”). In many cases, university administrators have already attempted to extend their faux version of Bayh-Dole to apply to everything–and what they object to is that a federal agency might refuse to go along with their grab for intangible assets of all sorts.

. . . a Reagan-era law . . .

Here, Plotkin has things backwards. Bayh-Dole was signed into law by President Carter. The law may have come into effect under Regan, but it was a law Carter approved. Push back further. Latker, the attorney at the NIH who drafted the law, claimed it was a codification of the Institutional Patent Agreement program that he had revived in 1968–under President Johnson, following (in a loose, political sense–meaning circumventing) the executive branch patent policy put in place by President Kennedy. Yeah–Democrats. Nixon kept the Kennedy patent policy in place, making only minor revisions. Reagan extended Bayh-Dole by executive order to companies of all sizes. Gaylord Nelson (D-Wisconsin) led the Senate review to block expansion of the IPA program in 1978. The NIH’s IPA program was then shut down by DHEW director Joseph Califano–who President Carter fired the next year. Bayh-Dole is largely a creature of Democrat administrations. You might expect to find that most of the university administrators advocating for Bayh-Dole (especially in its faux form, with the government decreeing that nonprofit bureaucrats feeding off government subsidies should own and exploit inventions made with federal support without oversight or public reporting) are mostly Democrats.

. . . that privatized the fruits of taxpayer-financed research.

Plotkin has here already extended Bayh-Dole to educational materials. Bayh-Dole does not apply to “fruits”–the law applies expressly only to patentable inventions acquired by federal contractors from the inventors and which were made in projects receiving federal funds. Bayh-Dole did not “privatize” anything. Bayh-Dole provides that if an invention has already been “privatized” in the hands of a university’s designated licensing agent (which were the primary targets of the law) or the university itself (though at the time, that was rare), then the licensing agent could keep the invention, subject to various requirements, such as filing a patent application. Again–Bayh-Dole says that if an organization privatizes an invention made in a publicly supported project, the invention can stay privatized.

Furthermore, Bayh-Dole provides that if an invention is not privatized–and therefore may be subject to a requirement to assign to the federal government–the federal government is authorized to go ahead and privatize the invention itself. Essentially, the federal government is authorized to operate a shadow patent office, by issuing patents to itself and then “re-issuing” each invention (and any patents) to a favored company in the form of an exclusive license that can include the right for the licensee to enforce the patents–and that amounts to an assignment of the invention. Any privatization that goes on comes about because university administrators or federal administrators decide to do that–nothing in Bayh-Dole requires either to privatize anything. In fact, on this point Bayh-Dole is absolutely non-uniform. Any administrative whim anywhere in the country can decide on asserting ownership based on any foolish, bullying, illegal rationalization it wants, on a case-by-case basis. Inventors and investigators and collaborators and company scientists and entrepreneurs and standards organizations and the general public simply cannot know from one moment to the next what each buff of administrative whim is going to decide to do. Bayh-Dole “uniform”? Bah. Nonsense.

Bayh-Dole was one of the first major examples of the way right wing dogma was enshrined into federal law during the ascendancy of conservative economics post-Carter.

No. Bayh-Dole is decidedly “left-wing” dogma (if one believes in political wings–a form of political astrology, as far as I’m concerned). Bluntly–Bayh-Dole enables non-governmental organizations to exploit the “fruits” of publicly funded research to make money for those organizations by preempting the public purposes of federal agencies and university faculty. Doesn’t that sound “left-wingish”? Route resources to NGOs that then can do what they want because whatever they do is supposed to be more brilliantly virtuous than whatever the general public might think to do on its own?

If Bayh-Dole were merely dedicated to allowing the patent system to be used as “it was intended,” then Bayh-Dole should have no apparatus other than to prevent all organizations involved from asserting any claims over what inventors invent. But no–Bayh-Dole has a complicated, unworkable apparatus that serves only two purposes–1) to make it appear that whatever the NGOs do with the “fruits” they expropriate from public projects is subject to public oversight and possible intervention; and 2) to make sure that public oversight can never operate–too cumbersome, easily appealed, easily waived, easily ignored, with no enforcement mechanism and no penalties for nonuse or unreasonable use. Does that sound like “right-wing” dogma? Crazy Democrats creating right-wing dogma that sounds left wingish.

The bipartisan law granted universities patent rights to federally-funded inventions created on their campuses.

No. That’s faux Bayh-Dole, and garbled faux at that. The Supreme Court made it clear in Stanford v Roche that Bayh-Dole does not grant rights in patents to universities. That’s for the Patent and Trademark Office to do. Nor does it grant ownership of patentable inventions to universities. The Supreme Court ruled that Bayh-Dole applies only after a university has acquired ownership of an invention made in work receiving federal funding. However those universities get ownership, it has nothing to do with Bayh-Dole or right-wing dogma created by Democrats. Bayh-Dole’s role is to allow university administrators preempt federal public policy as well as faculty investigators’ intentions simply by gaining ownership of inventions made in publicly funded work.

With their latest filings, the colleges now seek to extend their claims of ownership to works financed by the public past those that can patented, such as new inventions, to those that can only be copyrighted, such as digital books, tests, and other online learning resources.

Sadly, Plotkin doesn’t know about 2 CFR 200.15(b):

The non-Federal entity may copyright any work that is subject to copyright and was developed, or for which ownership was acquired, under a Federal award. The Federal awarding agency reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.

You see, “non-Federal entities” such as universities already have the right to deal in copyrights on works developed with federal funding. University administrators don’t need to extend Bayh-Dole to do this–unless by extending Bayh-Dole everyone means the faux version of the law, that somehow universities should have copyright vest in them even though they are not the author of the work and have not commissioned the work with an agreement that the work will be a work made for hire. As it is, if a university acquires an original work of authorship, then it can keep that original work of authorship. What’s even more amazing is that for copyrights, there’s no “public interest” apparatus whatsoever. The federal government gets a royalty-free, non-exclusive license for “Federal purposes.” That’s it. No fussy, ignorable preferences for small businesses or United States manufacture in licensing. No march-in for nonuse or unreasonable use. Why would university administrators bother to try to extend Bayh-Dole, given what they already have? No–many university administrators were upset by the Department of Education proposal on open distribution because they believed (and still do) that there could be patents on some aspects of “digital” works and if so they, ahem, want to be assholes.

University administrators for the most part cannot get clear the difference between copyright and patent. Copyright–original expression; patent–new, useful, and non-obvious article of manufacture, composition of matter, method, or device. Yes, one can create, say, software that embodies a method that’s patentable. And thus, the Department of Education proposed open requirement amounts to a declaration of “exceptional circumstances” under Bayh-Dole (35 USC 202(b)). Shock: a federal agency decides that it is in the public interest that stuff created in the public interest with public money ought to be made available to the public for use, modification, and redistribution. We might refine the point–the requirement is that the “best mode” of practicing the inventive, patentable stuff be made available for use, modification, and redistribution. No one is required to permit independent exploitation of the inventive, patentable stuff other than as based on this “best mode.” That is, if universities want to be assholes, they can be only partial assholes. AAU and APLU argue that universities should have the right to be complete assholes.

Worse, university administrators don’t want to see the limitation of their “only monopolies allow stuff to be used” rhetoric. Unlike prescription drug candidate compounds, stuff that is developed for use under a Department of Education grant is already fit for use when it has been developed. No commercial monopoly is necessary for development or use. Yes, a publication contract might bring in typesetting or a whole lot of user interface redesign, but on the whole, publication of this sort can take place in the context of the use of the “stuff” by most anyone–including educational professionals and their programming friends. The university administrators are reduced to arguing that if they don’t hold monopolies to exclude people from using what is ready to be used, then private speculators won’t be attracted to invest money to develop in some more elaborate way what is already ready to be used. “If we let people use what has been developed for use, then we cannot do exclusive deals to prepare these things for use.” Administrators must not have nerves in their tails–even biting their tails this hard, they feel nothing.

Plotkin has a point, then, about whether patenting has much to do with making educational resources available for general use. A university-developed resource–a digital work, software, a printed guide, a standardized test, an assessment rubric–may not be the most polished thing, may not work on all platforms, may be full of bugs. But most any educational professional can adapt most such things for use without a lot of bother or expense. There are other considerations–forked development, validation of changes, attribution, palming off, and the like–but these aren’t well addressed by patenting.

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