Let’s dive in and ask a heretical question: Are contracts for research or technology access necessary?
Here’s the thing. Companies all the time provide gift funding for research at universities–huge amounts come in, and research gets done without a contract to do it. Technology gets developed and published and people read about it, implement it, and live good lives, without taking a license, without signing a contract. More to it, licenses can be granted without forming a contract, just as I can agree to meet you for lunch and not make it a contractual commitment. Even though we may feel committed to the date, and determined to get there, it’s nothing that will be enforced in a court as a binding promise–offer, acceptance, and consideration, in writing to last more than a year, signed off by authorized parties.
So what is the case for sponsored research contracts with industry, and license contracts to industry? What is really on the line with these instruments, if collaboration can readily take place without them? Who wants them and why? If we come at it from this direction, we have a chance of seeing where improvements in *collaboration* can be made without getting caught up in thinking that improving negotiations on a given kind of *contract* will get us very far. I’ve been thinking about how less contracting might serve collaboration better–thinking about what the sweet spots are for such work. My premise is that sweet spots are actually hard to achieve–they aren’t the normal snap to grid stuff that is easy or defaults–they are often unstable, maybe not even replicable, but are the peculiar transactions that make the rush of everyday stuff worth it.
Consider, in addition to imagining there are no contracts (it’s easy if you try), that we have a class of quasi contracts, of lightly papered transactions. Then what are the control points? Clearly, in a research collaboration, the control points are primarily with the interaction of the technical lead personnel. Those arrangements, like agreeing on where to meet for lunch, can be stable, iterative by way of exchanges, and highly productive. Research personnel are adept at setting ground rules for their collaboration, monitoring exchange conditions to be sure to be getting what is expected, and adjusting things as stuff works out or doesn’t. Sure there can be bad behavior–laziness, mean-spiritedness, co-opting, exclusion, error-ridden, indifferent, spotlight hogging, malspending nastiness. There are remedies for these things, too–being careful to choose partners, having more in common than an arm’s length transaction brokered by folks you never want to see socially, being able to break things off or reposition if things are not working out. And since those involved all have these options, there’s a positive dynamic to find ways to work things out once common ground has been established.
If a contract diminishes this research governance, then the contract increasingly has to take up more and more of the relationship. Not to wander too far, but this is analogous to Milton’s argument in Aereopagitica regarding morality –if a choice is forced, then making the choice is no reflection of the morality of the chooser. Similarly, if the contract stipulates a behavior, it actually can disenfranchise the goodwill of the participants. Sure, there’s an implied “good faith” obligation in a contract–but if the good faith is shifted from individuals to a corporate entity with the power to command and control its personnel, the contract has done a heck of job in diminishing the importance of personal commitment. In fact, by seeking to displace personal commitment in favor of enforceable certainties, a contract could as easily end up delivering only what it demands, and not necessarily anything else that otherwise might be freely offered.
This sense of personnel goodwill binding creative relationships should not be underestimated. The “four corners” approach to contracting–the contract displaces all other understandings and communications and represents the “entire agreement” has a huge effect on a proposed research collaboration. Why on earth would anyone think that a contract should do this? Well, there are rationales for it. But from a heretical point of view, which is what this post is all about, there’s huge damage in disabling the personal engagement of one’s research folks with a four corners approach. Once one has done this–then one has to pile in clause after clause to substitute for the life that was drained out of the deal formally by imposing a contract.
One can also take this another way. We can imagine partially contracted positions–the contract does not represent the entire arrangement, but only a portion of it, such as how money contributed will be handled, without address a number of other issues that easily can come up–lead personnel, publication, risk, and the like. Making it all over simple: “Since we’ve decided to collaborate, this bit of contract covers the provision of funds to the university. We’ll pay this amount quarterly, and you invoice us to get our finance people to cut the check, and if at some point we decide to end this arrangement, we will let you know. If there is money left over in your accounts at the end of it, you send it back to us unless we indicate otherwise.” I know, hopeless plain. But ignore for the moment that legalese may not add any meaningful “precision” and may indeed force creating a comprehensive, disenfranchising contract. If the core of the relationship is the mutual agreement (but not enforceable promise) to work together for a time, then why not have a contract that handles only that portion that involves exchange of funds and stays entirely out of the overall project governance?
The big kick against all this thinking will be the three virtues of regulatory thinking: compliance, consistency, and avoidance of risk. These are not the virtues of top end research collaborations, but they show up and it’s hard to say they don’t matter. You can’t contract with companies for sponsored research using accounting methods that differ from the federal rules governing research awards. That would be inconsistent. Circular A-21 to rule us all! Once you’ve set up for volume work, it’s just uninteresting to explain to an auditor why industry arrangements might be different–so rather than making industry arrangements different–you force industry arrangements into the federal mold. This isn’t so much negotiation as it is putting pants on an octopus.
Going at it along the lines of heresy, however, it should be obvious that there’s a lot of room in building research collaborations for no contracts at all, for quasi contracts that touch only lightly on certain elements, and for partial contracts that do not aim to fully specify the relationship, but to be adjunct to it. If one sets up one’s contracting to maximize collaboration, innovation, and the entrepreneurial energy often needed to move ideas from lab to application (even if in another lab, as a tool), then it’s these sorts of strategies that should come to the fore. If, however, contracting is about maximizing the income to the institution with the minimal work necessary to meet the technical requirements for the money, then these broader outcomes simply cannot matter–the contract has to be a certain way, and whatever collaboration is going to happen has to take place within those bounds. At best, we are reduced to arguing over ownership, rights, publication, and risk–which while also important aren’t nearly so as whether creative talent will organize around a line of investigation with sufficient smarts to find something out that matters.