I had a dream last night that I was in a city–don’t know where–in which one had to get a license to purchase food. And not only that, but one also had to get a license at the same time to sell food. That was certainly weird, if not rather dystopian. But it was a bit worse than that. Turns out, in the dream, one had to get a license to sell food even one was going to give food away, as in, say, serving food to others, as at a meal. Giving food away was essentially (so the reasoning in this dystopian city dreamscape went) selling the food for zero charge and just an end run around the requirement to get a license before selling food. Yes, selling food meant selling food and not selling food.
Well, that was quite the dream–I was filling out application forms, wondering whether I would be approved to buy food or would have to scavenge off the land, and then realizing that I would also have to be approved to sell food before I could be approved to buy food. Well, hello starvation by bureaucracy–all in the name of making sure we are all properly certified on this food thing.
But when I woke up, and realized I remembered at least this much of the dream, the thought struck me not only how dystopian something like an application to purchase food (and sell/give/offer food) is, but also that this sort of regulation is what universities do with invention. I know, it would be me thinking like this. But consider: universities have created IP policies that aim to claim everything and give back only what they are legally forced to give back, and only to the extent that they are forced to do so. So university IP policies define “invention” as everything patentable and not patentable, inventive or not. inventive, everything made within one’s scope of employment, and everything made within one’s area of training, or not–if having commercial value. Basically, the policy definitions read more like “invention is anything an administrator says is an invention” and the university claims “anything that it wants to claim” and that if you don’t like this, then “appeal the university’s decisions to the university.”
It appears that to get something back from a university is about as easy as getting a drink out of a Vogon (you put a finger down its throat). Here’s the university administrator reasoning (if that’s the proper term for it): if an inventor wants something back, it must have commercial value, so we cannot give it back because we must exploit that commercial value ourselves and the inventor is entitled to only a small share of that exploitation. And if an inventor does not want something back, it must not have commercial value and therefore it’s okay that we did nothing with it, and not worth the effort to return it to the inventor. Institutions never say they are sorry, and universities (almost) never give anything they call an invention (or not invention) back.
What’s not to like about this for dystopian administrators? They get everything, and if they don’t they can accuse inventors of unethical behavior, of misappropriating what is properly the university’s, of failing to comply with policy, of flouting administrative authority, of fraud, deception, and theft. So happily dystopian. Comply or we ruin your life. That’s the happy way of university IP policy.
Well now. Perhaps you have the idea that even dystopian IP policies might be the absolute best way of ensuring that inventions made in rather publicly minded (at least in some theory about universities from the 1930s) work come to benefit the public. You know, ends justify means. Or the only way to be ethical in the end is to be unethical all along the way, and then a trophy, adulation, and forgiveness. Or something like that. I’m not all that sure about dystopian administrative minds. I do get the sense that dystopian administrators do not see themselves in mirrors. They see diligence, order, obedience, and a struggle to do difficult things for a public good that they imagine but cannot connect up with their actual practices. It’s sort of like Sartre’s The Devil and the Good Lord. Doesn’t much matter which regime you inhabit, practices still lead to dystopian outcomes.
But there’s another pattern of argument here. Perhaps dystopia is not the best way to get to utopia, even if utopia means “nowhere” not “paradise.” Here’s the idea. In a world dominated by expansive institutional (nonprofit, government, corporate) claims to IP and its management, it is important to have some streams of non-institutional IP, and even better, some new ideas feeding into a “public domain” or “commons” that is not enclosed, behind paywalls, managed by institutional administrators (bureaucrats, lawyers, low status folks with fingers on buttons with high power).
Universities have been and should be one such source of independence and commons. And for many years they were. If you were Eben Horsford creating the first chemistry lab at Harvard, and you had an idea for a baking powder, well you went and started Rumsford, or if you were Fredrick Cottrell at the University of California and industry folks begged you to figure out how to get soot out of industrial smoke and you created an electrostatic precipitator, well then you started the International Precipitation Company, and Western Precipitation, and Research Corporation. Same for Karl Paul Link at Wisconsin, with what became warfarin. There’s sort of a pattern here, with faculty having ideas and working out how to get things into practice. There are other patterns, too, of faculty publishing their results and others running with them, or of being recruited to an effort and sharing their “IP” to create a platform for further work (digital computer, later TCP/IP, stuff like that). That pattern worked, too, creating platforms, research tools, commons. From these commons then sprang opportunities–products, standards, companies, jobs for graduates.
Both of these patterns–personal initiative and commons–worked to create opportunity, all without universities having IP policies or having new modern dystopian IP policies. Starting in the 1930s, the National Research Council and Archie Palmer aimed to put an end to non-dystopian university approaches to invention and the like. Palmer worked for three decades to goad universities into adopting IP policies, with the apparent aim of inserting institutional patent control of faculty and student (and staff) work to create a new modern process for manufacturing patents to be licensed to companies to produce products for the public, and for the world. Nice, even seductive in that way that dystopia never seems dystopian at first.
So we end up, here in the 2020s, saddled with university IP policies that claim everything, give back nothing, and in doing so disrupt both of the patterns that previously were working quite well–personal initiative and contribution to commons to create opportunities for others. Be the rain, or be the rainmaker. University administrators have destroyed both in favor of procedures designed to serve the convenience of the university bureaucracy. Instead we have the Bayh-Dole Act that has been used (recklessly and wrongly) to codify university claims to own and control inventions, and to justify the idea that a university’s objective is to license inventions exclusively to company price monopolists (big or venture-backed) or not license the inventions at all. As a consequence, most university inventions are not licensed, are not available to the public, are not relevant. Companies have to work around university inventions, develop standards without them, ignore them. Well, there’s a good thing (in a dystopian sense) for all those research dollars spent at universities.
Consider that American universities, just since 1981, have obtained over 140,000 U.S. patents. At about $10,000 per patent, that’s some heavy math. And we are not talking about the inventions claimed but the patent application failed–maybe another 150,000 inventions, or the inventions that were not actually inventions but which universities claimed anyway (software, databases, collections, writings, video, “new” media, ideas). It’s a national disaster brought to us by university administrators. Not the folks you would expect in a children’s book about monsters. But here we are.
So that’s my dream thought. Universities should not be cities where one is forced to apply to purchase food or to offer food to others. Universities should encourage both the commons and personal initiative. If universities have to have an IP policy, it should be “the university stays out of these things unless asked to help, and folk who develop things and those who work around those folk should honor their agreements with each other and respect the privilege they have to be at a university at all. ”
I know, that is a rough way to put it, too coarse for dystopian administrator approval. But I’d say–that’s what is needed, and it doesn’t have to be recast as glossy mouthed prose.
Dream on, dream on, dream until your dreams come true. Well, some non-admindreams at least.