Penn State’s policy on entrepreneurial activities opens with this claim:
Technology transfer must be effected within the framework of an individual’s obligations to the University.
Given what we have learned about Penn State’s policies on academic freedom, we might revise the opening argument of IP06 to provide a sense of what is in play. Consider, instead, this opening:
Technology transfer must be effected within the framework of the university’s obligations to its faculty, students, and community.
That is, technology transfer works within what the university has already committed to; technology transfer does not provide a justification to suspend all privileges granted by the university so that administrators can take personal property (inventions, works of authorship) that they hope to sell off. To cover their crappy management, they cannot tolerate anyone else selling that property off or worse, giving it away, so they write a policy to forbid alternatives and beat down objections.
This revised opening statement of IP06, were Penn State to adopt it, would insist that anything involving university-managed IP must conform to the rest of university policy. The administrative desire for IP cannot create exceptions to policies on academic freedom, public benefit, and the like. Technology transfer is not so very important that attempting to trade in monopolies for commercialization must take precedence over any other activities that a university has set out to encourage.
Here is the rest of the argument in the opening of unrevised IP06:
Actions which serve personal interests to the detriment of University interests must be avoided.
Again, note that “University interests” is generalized. We are not talking about actions performed in official duties on behalf of the university, that these official actions must not serve personal interests that would be perceived as being in conflict with those official duties. No, not that. In IP06, things are reversed. Somehow faculty and students can have no personal interests in any area in which administrators assert a university interest–“University interests” writ generally. Are Penn State administrators totalitarians yet? Almost! This statement reads, essentially, that no one may criticize or oppose any university administrator’s desires pertaining to one’s personal interests. To do so would be to take an action that serves a personal interest “to the detriment of University interests.” If the university wants to build a by-pass through a faculty member’s property, well, any action to oppose the by-pass would serve a personal interest to the detriment of a university interest.
Instance. A faculty inventor publishes a discovery without reporting it first to the university licensing office. The publication advances the faculty member’s academic career, but the licensing office loses out on a potential license and potential income, and therefore such publication is to the detriment of “University interests” and “must be avoided.”
Instance. A faculty inventor dutifully assigns an invention to the university. She then advocates that the university should grant non-exclusive licenses to a companies that might then hire her graduate students. But the “University interest” is to grant an exclusive license. Therefore this advocacy is detrimental to the “University interest” and smacks of personal interests–those of graduate students, and indirectly of the faculty advocate, who gains some personal status by placing her students in industry positions.
Instance. A faculty author creates software and distributes it open source. As a result, the faculty member is invited to various conferences to present papers on the software, advancing his career and personal reputation. The university licensing office insists that it could have licensed the software to a company for profitable distribution. The faculty author has taken an action to detrimental to the “University interest.”
Each of these instances presents a typical technology transfer activity. The effect of the argument in IP06 is to forbid such actions unless taken by an administrator. The inventor or author is forbidden from taking actions (including, it would appear, advocacy) that would be intended to influence administrative decisions. We might think, then, that faculty and others would also be prohibited, based on this same claim, from being overly enthusiastic about their inventions, discoveries, and software, as that enthusiasm also might be detrimental to “University interest” by inducing administrators to invest time and money in things that turn out be nothingburger–at least nothingburger in their administrative hands.
We might also observe that the premise of academic freedom, as it pertains to teaching and research, is that personal interests are the essence of the university. Actions which serve personal interests include choice of what to study and what to publish–these might advance one’s career or result in a discovery that has far-reaching consequences, all to one’s own benefit. We might think, then, that to be a faculty member means to exhibit a self-interest. The question, then, is what sort of self-interest, and for what purposes. The moment we demand that the self-interest “serve the public” or “answer to every demand made by administrators” we are hopelessly lost. But who has the moral vision to peer into every faculty member’s soul and discover the nature of that person’s self-interest? I’m betting that university policy writers are not among those that might have a chance to do so.
This IP06 statement functions as a non-compete with the university’s patent licensing effort. One cannot give away inventions that the licensing office wants to sell. One cannot consult if doing so might create inventions owed to a consulting partner that could have been made in sponsored research where the licensing office could have coerced an assignment to the university. One cannot attempt to “transfer” anything–invention or otherwise–independent of the licensing office that the licensing office otherwise traffics in. Unlike other conflict of interest statements, there is no minimum threshold of activity–any action that serves a personal interest to the detriment of the licensing office operation “must be avoided.”
Having made these various outlandish generalizations, the policy now considers “outside” activities:
Outside activities should be pursued in a manner consistent with the primary obligations of University personnel to teaching, research, and service to the public.
The distinction between “outside” and “not outside” is not explained. Other Penn State policies also use “outside” or “external” and there the meaning is, “for another organization,” or “receiving payment from other than the university.” But here the usage is ambiguous, as this is an IP series policy. Outside of what? The university? the field of one’s expertise? the scope of one’s “assigned” duties? done without reference to the university? done through another organization?
Then let’s deal with “university personnel.” These are the “individuals” previously referred to, made generic so they can be filled with obligations as if no other university policies exist. But the “personnel” that have the freedom to teach, conduct research, and serve the public are specifically the faculty. Not administrators, not staff, not students, not visitors, not volunteers. Rather, faculty. At best “outside activities” is administrative jargon; at worst it is whatever university administrators decide it means. Is editing a scholarly journal outside or not-outside? Is organizing a conference for a professional society outside or not-outside? Is consulting on a grant administered by another university outside or not-outside? Does it matter if the consulting on the grant is direct or moves through a subcontract with Penn State? It is the same activity, regardless.
Is “outside” restricted to activities in which one receives payment from other than Penn State? Is publishing a textbook then “outside”? One might receive royalty checks. But isn’t publishing a textbook a “service to the public”? Is giving a talk at another institution “outside”–there could be an “honorarium” involved. How about a talk at a company (with an honorarium)?
Go at it another way. Are the “primary obligations” to “teaching, research, and service to the public” restricted to those that are unpaid or university supported? That is, if a faculty member has an “obligation” to conduct research, can the faculty member conduct that research at the University of Pennsylvania or at, say, PPG? Let’s say there’s no money involved–a faculty member just collaborates with research at another institution. Is that “outside” or not-outside? Now if there is money involved, but paid to the faculty member directly, is the same work suddenly “outside” where before it wasn’t? If so, then aren’t we talking about following the money, not a general obligation to conduct research? That is, the implication in policy is that faculty are not free to do research anywhere they choose if there’s money involved. Perhaps there’s a good reason for such a restriction, but is it a matter of obligation to the university? or even of research integrity?
Where might there be a problem with research integrity? Perhaps payments by a company to influence research that’s sponsored by the federal government. Or perhaps research to validate a product where the faculty members conducting the research have an economic interest in the success of the product or the company. But if that’s the case, then why should it matter whether the economic interest arises from a direct relationship (owning stock, having a board seat, getting paid for services) or from an indirect relationship (getting a share of patent royalties or realized equity from the university for a deal in which the university serves as broker)?
And this analysis changes when a researcher is sponsored by a company and also is in line to receive additional income based on the results of the research. Is the researcher getting paid to get a result advantageous to the company? Or is the researcher on professional notice that only the most solid research will do, because anything less will mislead and damage the company–and thus the researcher has an incentive not to cause such damage and thus benefit. If one wants to control others with arguments drawn from morality, it is all too easy to construct arguments that justify control, even when control isn’t justified.
We turn then to “consistent”: outside activities must be consistent with obligations to do research, teach, and serve the public. Okay. That says, basically, that outside activities may include research, teaching, and serving the public, and anything else that’s not inconsistent with these activities. That’s pretty uneventful, but it’s not, I’m sure, how the policy is used.
The potential for conflict of interest and/or commitment exists when University personnel exercise preferential access to knowledge, and/or University resources, for personal gain.
Now the policy statement expands to include conflict of commitment, even thought that’s not in the statement of purpose for IP06 and is handled already by another university policy, AD77. Conflict of interest and conflict of commitment are related but distinct. Conflict of interest has to do with a conflict between one’s official duties and one’s personal advantage. Conflict of commitment has to do with the time and focus one devotes to a thing done for the university relative to the time and focus one devotes to other things. A conflict of commitment might not involve a conflict of interest–one does one’s official job just fine, it’s just that one is doing something else with much more attention and verve and time. I teach without incident, but spend most of my time running a microbrewery. There’s no conflict of interest–I teach mechanical engineering–but perhaps there’s a conflict of commitment because I devote most of my time and energy to my business, not my teaching.
But even here, imagine the situation in which a university appoints the CEO of a microbrewery to teach a course in making beer. Is there a conflict of commitment because the CEO spends most of her time with her company? Ah, perhaps not, because the CEO is not paid to teach “full time” for the university. And we are back to the question of whether the obligation to do research, teach, and serve the public is all-consuming or whether it’s a 40-hour work week for nine months, or something else. Why should faculty work be treated as “all consuming”–so that anything one might do or think has to be “for the university” or “a university responsibility”? That faculty might be thinking or doing in an area of their training does not mean that they are obligated to do all such thinking for the university. If the “preferential access to knowledge” means that faculty have an advantage in considering their own ideas before anyone else considers their ideas, then IP06 basically claims that whatever a faculty member thinks creates a conflict of interest with the university’s licensing program unless that thinking, in the form of anything made that could be sold, is signed over to the university.
There is, of course, another way to read IP06–as mostly nonsense to be ignored. That would be the way to read it if it is intended to be a contractual obligation, which is the upshot of the claim in the IP Agreement. If a contract, then it is another adhesion contract, and the interpretation that should control in ambiguous parts is whatever reasonable meaning the non-drafting party might give it. In that reading, the “knowledge” would have to be controlled by the university, akin to a trade secret, from some other source than the faculty member, and be subject therefore to reasonable controls to prevent its disclosure, including marking and sequestering with an access control protocol (such as “need to know” plus signing an NDA specific to the information). Such a practice might reasonably constitute “preferential access.” The NDA would spell out the acceptable use of the controlled “knowledge.” And that would be that. No NDA supplied by the university, nothing here to be concerned with.