Let’s talk about “free agency”. Institutions hate it, players love it. Fans, they are not sure. When it comes to university innovation, however, we need to work through a number of issues. Let’s start with a few considerations.
Universities have made their way when it comes to instruction on the strength of faculty independence from institutions, whether political, religious, or financial. As a result, universities as social institutions have been remarkably adaptable and have provided a counterpoint for consensus thinking. The question we might ask is whether it is time to change that, and make faculty subordinate to the institution of the university. I don’t think we should. That is a premise of what follows.
University faculty have been a source of innovation through research and other creative activities. They have done this without being told to do this, without being organized and directed by administrators, and have shown themselves capable of arranging their affairs to work things out with each other and to keep commercial activity out of the university. Faculty have also innovated in innovation management, creating much of the technology transfer approach that we see (sometimes in ruins) today, including the use of the patent system, research foundations as agents for engaging industry, and giving back a share of any licensing revenue to scholarly work and to their institutions. They have done all this without being forced to do it.
Innovation in many areas depends on what Steven Johnson calls “networked, non-market” activity. Universities have been a tremendous source of such activity, feeding the commons through instruction, publication, conferences, and public access. Especially in areas of compound technologies composed of multiple parts, a robust commons means that the assembling of new technology platforms becomes possible without any single organization controlling the process, taking the entire financial risk, and seeking a monopoly to recover its investment. While there are times when such a monopoly approach is indicated, for the vast majority of the things that university faculty, staff, and students discover, invent, build, imagine, and write, feeding the commons is much more important than providing a welfare incentive to monopolist investors. Things simply stagnate if the sources of the commons are cut off by a dam created to divert research assets to monopoly uses under a rationale of “commercialization”.
Institutions have a lousy track record with regard to innovation. Innovation has throughout its history extending back to antiquity been used to denote changes initiated by persons in the established political order, along with anything that might happen to be entwined with that order, including at various times, rhetoric, the arts, religion, forms of government, science, and technology. Institutions derive much of their strength from the political order, as they are organized under it, and often obtain their funding from it. Thus, institutions tend to favor incremental change that improves efficiency and consistency, allowing processes to be regularized and managed from increasing distance. At some point, an institution with sufficient strength would prefer to coax or compel people to change to adapt to its desires than to respond to changes in society by adapting itself. In short, institutions seek change that preserves their status as leaders of the status quo.
Innovation comes in a range of flavors, from high tech that requires translation to less expensive and specialized equipment, to disruptive innovation that forces changes in business models, supply chains, and manufacturing methods, to innovation outside the status quo, which may appear as a shadow economy, piracy, black market, or even criminal behaviors. Innovation may also be incremental, adding function and features, while eliminating costs. Incremental innovation tends to move up a local maximum, seeking improved value points, but also by the success of its products and their widespread adoption, can also entrench itself against competing technologies and their approaches to innovation. Universities, by taking an independent approach to instruction and research, may in their turn serve any and all of these approaches to innovation.
In the US, one of the inflection point documents in the development of university innovation approaches is Science the Endless Frontier by Vannevar Bush. This report formed the basis for the creation of the National Science Foundation and spurred the government to consider university faculty as a strategic source of expertise and innovation by which public well-being might be advanced. Critical to Bush’s argument in favor of university-based research was the importance of an independent faculty, able to work outside of corporate controls, and therefore able to engage industry interests without being beholden to industry roadmaps or controls. There are, of course, many points at which companies and faculty investigators share common interests, vocabularies, and goals, but the strength and distinctive value of university work to industry is precisely that it is independent. Independence is one thing that money cannot buy. With it comes a sense of perspective, a willingness to challenge claims, and freedom to explore alternatives.
As Carl Sagan has put it, “We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology.” The practice of science and technology as part of a university is, in essence, a credence profession. We have to believe it because we typically lack the capability to verify. It is therefore critical that where possible, claims made regarding science and technology should be readily available for evaluation, characterization, and confirmation (or dis-confirmation). Anything that holds back data, metadata, tools, and findings from such evaluation increases our dependencies and moves us closer to a priesthood of technologists. Dwight D. Eisenhower, in his farewell address as President, warned as well about giving over control of technology decisions to a technological elite. It is altogether too easy to institutionalize all research findings and then rationalize that the most important thing is to find moneyed individuals willing to pay for access and to develop findings into paying products. Faculty independent of their institution with regard to financial power, but with safeguards for the engagement, is one of society’s safeguards for evaluating technology.
Markets are vital to our economy, if not our civilization. Matt Ridley argues that is in fact trade that establishes civilization, not the other way around. Barter provides the foundation for mutual economies of scale and specialization, and it is specialization that provides a foundation for rapid innovation. However, markets come in many forms, and the commercial markets of today controlled as they often are by dominant technologies are not uniformly the best guides to the technologies, practices, or products that people desire. Certainly as interest moves from companies to the investors and speculators that seek to profit from the activity, we find infrastructure attempting to control the pathway of knowledge at the expense of innovation and adoption. A culture dominated in this way is doomed to stagnate, not innovate. Universities, abandoning the value of an independent faculty, feed stagnation while making a virtue of aligning with the dominant industry leaders of the day. The future, however, is unlikely to belong to any of them, while universities have shown a thousand years of resilience. Referring all university research findings for consideration by dominant companies (in the form of exclusive licenses) or speculators (in the form of startup companies) contributes more to cultural stagnation than to institutional financial benefit or economic development.
Academic freedom has been at the heart of faculty independence. In the past, in various formulations, this freedom has been concerned with freedom from institutional interference in instruction in the classroom, with the importance of allowing students the freedom to learn without being compelled to accept any particular political or religious doctrine, with the value of permitting open publication of scholarship and exchange of knowledge. Academic freedom also means that the intellectual property rights that may attach to various research findings cannot become a means to constrain the instruction and practice of new technology, nor a way to undermine publication by turning articles into a kind of indirect advertisement for institutional licensing of patent rights, nor a way to badger faculty into handing over permissions regarding who has access to new findings, and who may practice those findings, to university administrators. Independence, if one is going to have it, also extends to choice of where research will take place, who may be involved in collaboration or competition, how results will be announced and made available, and who might benefit. While an institution may provide resources and infrastructure for preferred strategies by which intellectual property might support instruction, publication, and adoption of findings, independence, and academic freedom, are lost when an institution compels the transfer of ownership in scholarship and aims to hold a monopoly on the practices by which that intellectual property is released.
Scholarship by its nature seeks to make the unknown known. Thus, its subject matter of choice is the unknown. As with an explorer in uncharted territory, faculty research is provided with tools that may not be adequate to the exploration. Advances are made not only in the discovery of new geographies but also in developing the tools appropriate to those geographies. Access to the tools is as important as access to the findings themselves. Failing to differentiate between findings and tools and hold all under a claim of intellectual property denies access to practitioners and suppresses the creation of variations, the extension of practice into new areas, attempts at new applications, and the validation of both the tools and the findings. That an institution might make a great deal of money by withholding access to practitioners in favor of the development of a commercial product is not so much an astute business idea but rather a fatal institutional conflict of interest that deliberately disrupts the course of scholarship in favor of an attempt to profit from speculative behaviors.
A university operates by governance not management. By governance I mean, the mediation of competing independent claims on resources and standing in order to permit ranging activity undertaken by independent faculty working in close association. Governance is appropriate to communities. Democratic governance recognizes a collective voice of the people. Management, in contrast, uses command and control to enforce decisions on a workforce, whose job and duty, is to carry out those decisions. Intellectual property policies that assume management rather than governance will in fact disrupt the capacity of faculty and others who innovate to consider and choose among alternatives. In doing so, such policies create much of the complexity and disorder that they then seek, with the grant of greater authority, to grapple with or eliminate. Such policies are a medicine that aims to treat its own side effects, mistaking the side effects for the condition of the undisturbed system, when in fact they are the consequence of an ill-conceived assertion of management.
A university administration has a critical role to play, that of the trustee or steward. A university administration does not own the university or its name or its reputation. A university administration does not assign faculty to tasks, tell them what to study, who to work with, where to obtain funding, what facilities to use, how to design projects or evaluate results. The administration does not decide what to publish, approve what is published, endorse what is published, or decide who is going to do the publishing, or when, or in what format. These would be the tasks of management, not governance. As a steward, an administration looks out after the commitments made by the faculty, in their research and their teaching, and seeks to ensure the integrity of these activities by providing safeguards against undue influence, whether political or financial, that would undermine the public’s confidence in the independence of faculty scholarship. When a university administration demands ownership of intellectual property for the purpose of financial exploitation of intellectual property rights, it abandons its critical role as steward and becomes a thing to which it is ill-suited, a self-interested entity, not a king, not even a landlord, but something more of a pawn shop operator dealing in stolen goods.
I, for one, am committed to developing strategies of governance within universities, adapting governance to the requirements of technology development, as technology comes to play an increasing role in the products of scholarship. I am committed to developing strategies and resources that provide creative faculty, staff, and students with choices that align with the registers of engagement that they desire with their colleagues, with the practice community, with the general public, with industry, and with entrepreneurs, investors, and speculators. I am committed to the idea of freedom and its role in fostering innovation that jumps beyond the prescribed and expected boundaries of the status quo, of industry leaders, of professional investors hoping to make a financial bet, often with other people’s money, that returns a fortune. I am committed to the idea that the smarts of a university, when it comes to innovation, are on the periphery, and the role of IP management is to provide services under the direction of that intelligence, where management is appropriate, and can get things done.
My work over the past two decades, along with the work of others, has shown that approaches that develop governance, provide choices, respect freedom, and move into the field can be successful, profitable for those involved, beneficial to the public, acceptable if not desirable for industry, with plenty of space for entrepreneurs and investors as well–often because they have a robust library of available technology with which to work. Whether the model is open source software or venture-backed, patent-based startups, none of it has required a comprehensive, compulsory ownership policy imposed by a university administration–even when that, in fact, has been the case. Creative people choose to cooperate, work out the arrangements under which I or others might assist with matters of intellectual property, contracting, or operating strategy. As a result, we have built projects, such as Phrap and DIDB, we have created commons such as the Rosetta Commons, and frame agreements that have allowed large and small companies alike to open a standing contractual relationship with enough flexibility that in any given situation only a small portion of the relationship has to be negotiated for any particular task.
We have supported, and learned how to support open source and creative commons approaches, how to develop programs that mange research assets to serve collective investment, and how to start companies around ideas, technologies, inventions, and service requirements, regardless of whether the university gets a financial cut or not. Typically faculty recognize good service and when given opportunities to give back, they do so, whether to the university, or to their students, or to the profession, or to the community. Those that do not are by far a rare exception.
From all this I–and I think I speak for others who have worked with me, and no doubt many who have not–have realized that faculty are creative not because they are employees serving in some dutiful position, but because they have chosen independence while making a commitment to benefit others through their teaching, their research, and their scholarship. They do not join a university to work for the university, but for these other things. Intellectual property policy and practices must respect their choice. There are huge challenges in doing so, but they are for the most part excellent challenges. Certainly the challenges of freedom are to be preferred to the challenges of captivity, the more so when the institution involved is a university, and even more so when the object of effort is innovation arising from the study of the unknown.
A false dichotomy therefore is presented when someone argues that the issue is whether an institution should own or a faculty inventor should own. These are not the only choices, certainly, but beneath it all is a deeper assumption that university administrators should frame the issue in this way at all. Ownership is but one of five core components to any intellectual property relationship, the others being control, money, attribution, and risk. The dichotomy ignores a fundamental fact: in the US, at least, inventors and authors own the inventions and works of authorship they create. For work made for hire, that oddity of US copyright law, this same situation still holds. An employer does not own because an employee creates a work, but does so when the employer does those things that assert the control that meets the test of authorship. For faculty, that simply does not happen for independent scholarship, but only in express agreements in which the administration is ceded authorial control.
If inventors and authors in an independent environment own their inventions and works of authorship, then there it is is. Individuals, not institutions, own. The question is not “who should own?” as if there is some choice, but rather “who has standing to compel creative people to give up their ownership?” And further, “why is everyone so fixated on ownership, when control is the operative element for innovation?” If individuals, choosing university work for its independence, choose to assign ownership of their IP to the institution, they are free to make that choice. And they may choose to do so voluntarily for any number of compelling reasons: so that the institution may benefit, to work with talented IP specialists, to take advantage of funds available to fund patent or similar IP work, to aggregate their IP with that of others to obtain a critical mass, to distance themselves from financial or business concerns, to mitigate the appearance of personal conflict of interests, to set an example for others, to help their students or research staff, to provide a neutral platform from which to manage rights for a number of companies, because they can work out an arrangement with confidence that’s better than the wild world of invention brokers, or purely for convenience.
Compulsion disrespects all such motivations. Compulsion says: it does not matter what you think. Compulsion says: all that matters is that the institution takes the rights, as expeditiously as possible. Compulsion says: you are only as good as the rights you produce, not for your insights or your future interests. As Milton would have it, Compulsion says: we do not care one bit for your character or your commitment. Compulsion says: it is our breakthrough network (regardless of whether we have one or are capable of making one), not yours, that must be used if the most substantive parts of your work in technology is to be made available to others.
Call it “duty” or “respect for authority” or “employer should have the fruits of the employee’s labor”–it’s still compulsion that destroys the independence of the faculty, staff, and students and undermines the fundamental motivation for universities to be involved in publicly funded research. Rationalize compulsion any way one wants, as efficiency, expertise, convenience, consistency, fear of liability, fear of the “race to the bottom”, fear of faculty indifference or incapacity, or desire for financial benefit, love of status, test of respect for authority, or even “public benefit” and it is still compulsion.
That’s the case for freedom. There are challenges. There are particular rebuttals to the case for compulsion. But one has to see the big picture. There is a battle for the soul of the university. Freedom or captivity? Governance or compulsion? That’s the operative dichotomy. Choose freedom. Reform university policies to reflect independence and choice. Provide attractive, capable, responsive resources. Show a willingness to develop working relationships. Use innovative approaches that align with university registers of engagement. Be prudent, honest, forthright, and diligent.
It is still a hugely difficult task, but it is a very rewarding one, worthy of respect. Choosing freedom will open up opportunities and relationships that are otherwise not seen, have stagnated, have been shut off. Choosing freedom will expand the range of university engagement in community many times over, relieving bottlenecks, distrust, defensiveness, and bitterness. Choosing freedom will result in benefit for institutions, advance for science, improved working relationships. Doing so restores the heart of university scholarship in the service of the community. Be a part of doing it, and your heart–and the heart of the university–will grow three sizes that day.