Employers own their employees’ work
Faculty are employees
Therefore universities own the work of faculty
Is it that simple? Let’s look at it two ways. First, from the perspective that this reasoning is actually how someone comes to the conclusion that, despite anything else, it is only reasonable that universities should own. Then from the perspective of asking why anyone would *want* faculty work to be owned by the state (in the case of public universities).
In a previous essay, I challenged the notion that universities are employers for all of a faculty member’s activities. I argued that they are employers for only a portion–a small portion, actually–of a faculty member’s work. For the rest, the faculty member is something more of an appointee. It is in this role as an appointee that the faculty member provides the greatest service to the public. To make the faculty member more “efficient” about the “official duties” would be to greatly reduce the range of possible action that we expect of faculty, but cannot require because we cannot plan in advance.
The Logic
Here, I’m interested in whether folks should rely on the logical construction of the argument. That is, being led by logic, does one reach a necessary conclusion? There are two problems. First, is it true that employers own all of their employee’s work?
*Does the employer own all of an employee’s *inventions”?
No. Two reasons. First, inventions are personal property under the constitution and federal law. The employer obtains inventions only by assignment, and that transaction is independent of employment though it may be made a condition of employment.
Second, in a number of states laws limit the scope of claim an employer can make in inventions as a condition of employment. These laws reflect the concern that an employer cannot use employment as a job action to take personal property that lies outside the reasonable claims of the employer, with regard to the employer’s actual business.
Next problem. Are faculty entirely within the class of “employee”? That is, can one reason from “employee” to establish the work of the faculty? No. Faculty may be employees, but that is not by any means all they are. The properties of faculty are not a subset of the properties of employee. The set inclusion fails. Faculty undertake work that they are not assigned, is not for the benefit of their “employer”, and is not subject to the review or approval of their employer. So while it is true that faculty are employees, they are not only employees. One cannot apply the properties of “employee” to “faculty” and cover all their activity. Most particularly, “research” and “public service” are not at the direction of the employer. It is not true, therefore that faculty are *only* employees.
We may then restate things:
Employers own the inventions of employees when these are directly related to the employer’s business and within the employee’s scope of employment and there is an agreement pertaining to such inventions beyond that of employment.
Faculty in some of their work are employees.
For that work, the university as employer is entitled to claim in a patent agreement faculty inventions when these are directly related to the university’s business. How is “that work” to be established? The conventional way is by a statement of work in an employment agreement. That is not the “university handbook” or a series of “executive orders”. It is the meeting of minds between the employer and the faculty member with regard to the portion of the faculty member’s activities that will be directed by the employer. For everything else, “that work” is established by a later agreement, under which work is commissioned or is permitted subject to conditions.
In short, faculty are employees only where they have agreed, expressly, to be employees. This agreement cannot change without agreement by each faculty member, with regard to his or her own employment relationship. Otherwise, there is no contract. Agreements to agree in the future are not enforceable, and therefore there is also no foundation to demands that faculty accept, as a condition of employment, any changes that the employer may make in the employment agreement. It is, at that point, not a contract. The essence of faculty “employment” requires changes in policy that are to be enforced to be agreed to by the faculty, not imposed as new conditions of “employment”.
It is therefore not appropriate to reason as if the university is the “employer” and the faculty are “employees”. Faculty are employees, but only for a tiny bit of their service to the public, and for the rest, they are appointees, and this includes the substance of their research and scholarship and instruction, except where each expressly agrees–voluntarily and not on the condition of “employment” to do such work for the university.
The Longing
This is the first prong. One cannot get to the argument that the university should own all faculty work on the basis that faculty are “employed” when they are not “employed” to do the work for which ownership is claimed. So what’s the second prong? Why are folks taken with an argument that is readily torn apart as built on false premises and faulty logic? It must be that the argument really doesn’t matter. What matters is that a person actually *wants* the university to control and direct faculty in their research, scholarship, and instruction, and make them do what management decides. That is, someone wants to impose state control on faculty work by means of an employment argument, and if that fails, then some other argument–any will do, regardless of its substance, so long as it beats back objections.
This is an entirely different sort of dispute, then. It is about deploying words to get one’s way, regardless of the logic, the fallacies, the truth of things. In essence, it is Thrasymachus’s argument in The Republic: that justice is interest of those in power. It is inherent in the Mandate of Heaven: he who succeeds is lord, and he who fails is a criminal. As such, it is an ancient way of arguing. It is not surprise then to find it still operates, even within the university, where it is only human to want to get one’s way. It is also only human to say, all this logic and truth stuff is idealism that’s misplaced. We already know what we want, and the effort is not to persuade with sound reasons, but to defy and disable objections.
There are any number of arguments that would reason against making faculty entirely “employees”, and bringing their research, scholarship, and instruction within the claims of administrative direction and control, their IP under university ownership. For public universities, this means state control of faculty work. Those arguments include:
1) Faculty hold an ancient privilege that frees them from institutional controls so they may pursue inquiry independently–and this is the public interest. It is at the heart of the existence of the university not merely as a place of permitted instruction, but as a place of inquiry, discovery, and publication. Asserting compulsory ownership of faculty work runs against these ancient rights. Things persist for centuries for a reason. Each generation has to make the arguments again for their own needs. Here it is, again, front and center.
2) The state not an acceptable owner of faculty scholarship when that ownership is obtained by compulsion–it is a sign of loss of respect for the role of faculty in serving as a check on the authoritative claims of the state, including authoritative claims made with respect to technology and science. Even companies claiming everything have a tough time with innovation. Stuff leaks out anyway. The non-strategic stuff ends up being the hot stuff. The institutional ability to pick winners is dangerously suspect. Steve Jobs at Apple is no counter-example: he defied management by committee, and led the products he produced. The faculty are in this same position. It is their leadership, their identification with their work that influences change and captures the imagination, not dutiful administrators hawking goods.
3) Freedom has always been a better friend of research innovation than institutional or state ownership. A university should understand this better than anyone. Why a technology transfer program should get a free pass for making compulsory claims to the entire research output of the faculty, as if this somehow will be better this time. Even if a plantation is “making money” for its owners, or is “more efficient” than others, or “more orderly” than others, are we then fine with using captive workers? Are these the same arguments that support sweat shops in developing countries? Are those the arguments that will be used to ensure faculty hand over their research to the institution for attempts at profit-making?
4) Eisenhower warned against government-led technological domination of free inquiry. Whether that domination is rationalized by a need to make money, a love of authority or order, or simply an unsubstantiated claim that the government knows better how to do innovation than the public that elects it–the warning stands, and ought to be heeded, if not from Eisenhower, then from Hayak, or Coleridge, or any of those that have championed personal liberty over state central control. One can see in this argument a position that can be shared by both liberals and conservatives.
5) The history of university invention and innovation points to a long tradition of faculty-led initiatives to create the resources needed to address their vision regarding how their work may have its best impact on society. They have created university presses and journals. They developed and adapted the internet and web. They created the idea of foundation agents to manage patent rights in the interests of further research. This led to the idea of technology transfer offices, and the National Science Foundation, and Bayh-Dole. This has been the work of faculty, following their lights, supported by those that saw the light–often industry. Companies agreed with Stanford that it should pursue patenting of Cohen-Boyer. Stanford in an act of genius made the prosecution of the patents open to industry. Dupont and others worked with Cottrell to create Research Corporation. The licensing of inventions was itself the work of collaboration. The initiatives that built technology transfer were overwhelmingly voluntary. If folks want to make money, win public support, and show a huge impact on the economy, then they should be demanding a voluntary approach.
Just because faculty are not employees does not mean they are without responsibilities. Because faculty are not watched each moment by a Taylor-like manager determined to get the most out of them does not mean they are not working on the public’s behalf. A faculty member who works out of the public eye for twenty years may produce an amazing discovery, though it is not in a trendy area and not preceded by hundreds of publications. A faculty member who works diligently to see that her graduate students do quality work and get placed in positions of responsibility may have more impact than the one with 20 unlicensed patents. A faculty member who enjoys wild commercial success but shares none of it with the university may yet share–no one knows what is in his will.
The responsibilities that faculty take on may be diminished and suppressed by attempts at administrative management. Some things–like parties, friendships, playtime–collapse under management demands. Research, composition, invention, and creativity are also among these. If one knows the specs and wants something built, there is a role for management. If one wants exploration of the unknown and a fair accounting of the efforts, then discipline and best effort cannot be confused for management for avoidance of risk, illusion of success in all things, efficiency, and profit-making. When faculty are front and center, reporting what they have done, for all it is, with negative results as important as positive ones, with helping students as valuable as chasing research funding–then the responsibilities become more significant, and the outcomes of work become clearer. This stuff is practical. This is the baseline. This is no idealism. It is how things have worked. Trying to impose ownership and state controls on it do not deepen faculty responsibility–they co-opt it and create disincentives to act.
For research, scholarship, and instruction, faculty are not employees, but appointees. For the disposition of their work, they must be responsible. A university may make their activity visible, may through governance ask that some work move off campus, and may regulate power relationships between senior faculty and junior, and between faculty and students. But making compulsory claims to ownership of faculty intellectual property runs against reason, innovation, and even making money for the institution.
If all this is about finding more ways for universities to “make money”, then there are better ways to do it–even for technology transfer offices! The technology transfer office that works the closest to a voluntary approach is indeed positioned to make a lot of money. The one that also is selective of the technologies to work with and creative in the approaches to a range of licensing situations will make a lot of money. The office that builds good will in a wide range of relationships that create opportunities and benefits for others will, over time, make a lot of money. In the university licensing business, people make the university a beneficiary because they want to, not because it bullies them into it. Licensing income, despite the claims of attorneys and prudent experts, is for the university primarily another form of donation. It can be distorted into other things–payment under threat of litigation, for instance, or even merely a duty established and enforced by a contract. But it is, essentially, a donation, a beneficence–an action to promote the well being of the university. Any attempt to transform such goodwill into payment under threat–no matter the rationale–carries tremendous consequences. Universities, and those that want them to have money, would do well to think carefully before adopting compulsory IP ownership policies that treat faculty as directed employees and companies as targets of infringement claims.