Over the last 30 years, universities have become increasingly aggressive about securing the rights to faculty intellectual property (IP) that is patentable and thus potentially profitable. The operative distinction in many current policies is between faculty IP that can be protected by copyright, versus IP that is patentable.
In a major new 100,000-word report issued this month -- Recommended Principles & Practices to Guide Academy-Industry Relationships -- the American Association of University Professors argues that this distinction is not grounded in any rational analysis of the nature of faculty research and productivity. It is essentially an opportunistic maneuver to gain administrative control over IP that may be income producing. We urge that the administrative distinction between ownership of copyrightable and patentable intellectual property be abandoned. Faculty members should have primary authority over the disposition of all their IP, subject to legal and contractual restrictions and subject to principles articulated by campus faculty collectively.
This recommended IP Principle does not, I should make clear, apply to IP that is contractually negotiated as an additional individual faculty responsibility separate from the teaching and research that are encompassed by a faculty member's general appointment conditions. Universities can negotiate with faculty members over optional tasks specifically identified as work for hire, in which case rights and ownership are subject to mutual agreement. Unfortunately many universities are now claiming ownership of faculty IP that is a product of ordinary and continuing research and scholarship.
Since 2007, that approach has had assistance from the National Association of College and University Attorneys (NACUA). That year Beth Cate (Indiana University), David Drooz (North Carolina State University), Pierre Hohenberg (New York University), and Kathy Schulz (New York University) presented a paper recommending IP policies at NACUA''s annual meeting.
A version of "Creating Intellectual Property Policies and Current Issues in Administering Online Courses" with numerous appendices is on the members' only section of NACUA’s web site. Perhaps unsurprisingly, the paper, which I have read, urges comprehensive university ownership of faculty IP whenever substantial use of university resources has been involved in its creation. (NACUA agreed to make this copy of the paper available, noting that while it reflected the authors' views at the time, some issues and some of their thinking may have changed since then.)
"Substantial resources," the paper argues, "might include specialized computer resources or other equipment and significant use of student or research support." A number of income-producing activities, including textbook authorship, could easily fall under that umbrella. The paper also stipulates that products of faculty consulting may not be transferable to third parties if "the faculty member is involved with university research in the same area as the consulting" or if the consulting implicated the faculty member’s teaching activities. The faculty right to make software they have created be freely available through open-source licensing is subject to review as to whether "the goals of the institution would be better served through commercialization."
In the AAUP’s view, we are now in the terrain of serious infringements on faculty academic freedom.
Interestingly enough, it was not always so. A look at the history of how IP has been handled at universities makes it clear that current policies in many cases diverge from foundational IP principles. Seattle-based IP authority Gerald Barnett recently posted a blog entry -- "Blasts from the Past" -- that highlights university IP policies from the mid-20th century. Some institutions at the time already sought comprehensive control over faculty IP. Stanford University had a patent review committee that could recommend the university president assert control over any "valuable invention."
The Massachusetts Institute of Technology's 1932 policy was firm: "Inventions or other developments, whether or not subject to patent, resulting directly from a program of research financed entirely by the Institute shall be the exclusive property of the Institute, and the Institute shall be entitled to all benefits and rights accruing from such inventions or developments and may acquire the title to any patents based thereon."
On the other hand, the University of California’s 1943 policy was unambiguous in asserting faculty rights to control their IP: "Assignment to the regents of whatever rights the inventor or discoverer may possess in the patent or appointment of the board as the agent of the inventor or discoverer shall be optional on the part of the faculty member or employee."
The 1945 University of Texas policy similarly asserted that "the title to a patent for any discovery or invention made by an employee of the University of Texas belongs to the said employee and he is free to develop or handle it in any manner he sees fit." The University of Arizona in 1939 also declared that "no inventor shall be compelled to submit an invention to the Patent Committee." Both institutions did mandate modest profit-sharing, Arizona specifying that 10 percent of income derived from a patent go to the university and Texas established a tiered schedule for profit-sharing. Texas’s top level — at which 20 percent of profits were due the institution -- came after net royalties exceeded $5,000, which equals about $60,00 in today’s dollars. These policies certainly count as enlightened in the current scene.
The more restrictive policies assume a model of faculty appointment that conceives of faculty as very much comparable to corporate employees, where everything you create belongs to the employer. Since its founding 1915 Declaration, of course, the AAUP has argued that faculty are not employees in that narrow and restrictive sense. They are appointed to exercise independent judgment and carry out independent research. In fact the NACUA guidelines implicitly recognize that faculty are different. They dismiss the IP rights of non-faculty employees with a wave of policy assertion: "The intellectual property created by employees (other than faculty), acting within the scope of their employment (whether as administrators or as participants in research), should be owned by the university under applicable law." The rest of the lengthy document amounts to an effort to make it possible to treat faculty in the same way.
The AAUP's new report lays out carefully why this impulse is fundamentally misguided. The effort to control faculty IP relies on an unsupportable logic: faculty research and scholarship is guided by academic freedom up to the point when a faculty member creates a profitable invention. At that point the university steps in and takes over. Academic freedom apparently does not cover how patentable research is produced and disseminated, even though faculty publications about their inventions remain under their own control and can be disseminated as faculty see fit. The AAUP argues instead that inventions are a product of faculty research and scholarship and properly encompassed by it. There is no fair and reasonable distinction between the research and creative thinking that produces a plan for an invention and the invention itself.
There is no reason to suppose, moreover, that either administrators or university technology transfer offices are better suited to decide how an invention should be shared, marketed, or distributed. Certainly they are not better positioned to understand the research or technology involved. That is not to say any of the potential parties to a patent negotiation — a faculty member, an industry sponsor, a university office, or a university management agent — is necessarily enlightened. Greed, ignorance, or self-deception can distort any stakeholder’s perception and negotiating strategy.
That is partly why the AAUP’s Principles create a clear role for collective faculty governance in setting IP policy. Greed or indifference might, for example, lead any party to a negotiation to dismiss the social utility of assuring that a lifesaving technology be commercialized in such a way as to guarantee its availability and affordability in the developing world. A contract with a company might allow it sit on such a technology and delay its manufacture indefinitely. These and other risks can be minimized if the faculty senate mandates principles to guide IP management.
We are not assuming a university faculty will want to embrace progressive policies for distributing lifesaving medicines or technologies in the developing world, though we do recommend that practice, but we certainly recommend that the senate have the authority to debate and enforce such a policy if it chooses. Similarly, a senate might establish time frames for commercialization and time limits for exclusive licensing. It is much more difficult for responsible administrators to include such conditions in research contracts with industry sponsors without firm campus-wide policies.
As the AAUP has argued since its founding, research policy falls within the area of faculty professional responsibility and expertise. We have issued our report to help reassert that authority for the benefit of the common good.
Cary Nelson has just completed six years as president of the American Association of University Professors.
The Purdue University Board of Trustees will convene Thursday to vote on the university's next president -- which sources, including Indiana Public Media, have reported will be Indiana Governor Mitch Daniels.
At some universities, professors have objected to the appointments of non-academics to presidential post. But faculty leaders at Purdue are open to the idea. Joseph Camp, secretary of faculties for the university's Faculty Senate, said Daniels' political background would not affect his ability to be president: "I don't know if there's anything in his background that will either qualify or disqualify him to be president, so what I have to do is maintain an open mind, and like everyone else, I'm curious to see how this all works out."
Another member of the senate, Vice Chair David Williams, shared his view. Williams wrote in an e-mail that although "considerable voice" has been given to the next president being an academic, he sees the importance of having a president who can harness entrepreneurship at the university to attract funding. "Mitch Daniels has been successful in the business world, and in the political world. He could very well be the right person, at the right time, coming into the right environment. I find that prospect exciting," he wrote.
The Pittsburgh office of the National Labor Relations Board on Monday rejected a request by Duquesne University to block a vote by adjuncts on whether to unionize, The Pittsburgh Post-Gazette reported. Duquesne, a Roman Catholic university, argued that its religious affiliation should exempt it from a union election. But the NLRB noted that Duquesne had agreed to a union vote just weeks earlier, and that long-established NLRB policy bars parties from opting out of an election they have agreed to barring truly unusual circumstances.
Charitable giving to education at all levels hit $38.87 billion 2011, a 4 percent increase, according to the annual "Giving USA" study, released today. Adjusted for inflation, the increase is just under 1 percent, reflecting the slow recovery in giving following the economic downturn of 2008.
Terrence A. Gomes resigned on Monday as president of Roxbury Community College, according to the college's board chair. Roxbury, which is located in Massachusetts, has been dogged by several controversies, The Boston Globereported, including an ongoing audit by the U.S. Department of Education and a state probe that found questionable allocations of financial aid. The college has also been under fire for allegedly underreporting crime on campus.
A survey being released today suggests that arts graduates -- counter to the stereotype -- are not all facing unemployment. The survey, the Strategic National Arts Alumni Project, includes graduates of arts colleges and of arts programs within broader universities. Among the findings:
87 percent of arts graduates who are currently employed are satisfied with the job in which they spend the majority of their work time.
Of those employed alumni, 82 percent are satisfied with their ability to be creative in their current work, whether working in the arts or in other fields.
Only 4 percent of respondents report being unemployed and looking for work – less than half the national rate of 8.9 percent.
84 percent of employed alumni agree that their current primary job reflects their personalities, interests and values, whether their work is in the arts or other fields.
Those with degrees in the performing arts and design are the most likely ever to be employed as professional artists, with 82 percent of dance, theater and music performance majors, and 81 percent of design majors working as professional artists at some point.
A new document leaked Thursday raises yet more questions about the ouster of Teresa Sullivan as president of the University of Virginia. Board members have suggested that Sullivan was not "bold" enough or engaged in the kind of strategic thinking that they wanted. But in the memo to board members, Sullivan said she had been explicitly told not to do a full strategic review, but went on to outline a series of strategic issues that needed addressing. Sullivan also outlined difficult challenges -- including a view that some departments at Virginia are resting on their laurels -- suggesting a willingness to ask tough questions. On campus Thursday, faculty members were saying that the memo suggested board members had been terribly unfair in their (minimal) explanations of their decision to seek a new president. The Daily Progress published information about the leaked memo.
Amid all the anger, someone has decided to make a humorous criticism of the university's board by offering it a "final exam." One of the multiple choice questions:
The University of Virginia’s core principles include:
A. short-term return on investment
B. bowing to pressure from rich and powerful alumni in the name of strategic dynamism
C. egregious mismanagement that’s secretive, misguided, and without clear public rationale, according to the head of the AAU
D. excellence, honor and self-governance, innovation and collaboration in the pursuit of knowledge, leadership for the public good, and providing a vibrant breadth of academic offerings within and across our schools.
Statements and rumors of all kinds are flying over the decision of the University of Virginia board to oust Teresa Sullivan as president. The decision, announced Sunday, stunned faculty leaders and many others who thought Sullivan was off to a strong start in her nearly two years in office:
The Council of Chairs and Directors released a letter blasting the way events have transpired. The letter said that these academic leaders were "very pleased" with Sullivan's "superb" leadership, and that they were stunned by her ouster, and frustrated by the lack of faculty knowledge of the reasons behind the board's action. The letter called for "a full airing" of the issues.
A petition is gathering support calling for the board to reverse itself and to keep Sullivan.
Helen Dragas, the rector (board chair) released a letter to the faculty in which she said that "the Board of Visitors understands the serious concern and anxiety raised by the announcement of President Sullivan’s agreement to step down. We comprehend how deeply the entire University family feels a sense of loss and distress at what appeared to be an abrupt turn of events." However, citing confidentiality requirements, Dragas said she could not detail the issues that divided Sullivan and the board. She did, however, say that "there was ongoing dialogue with the President over an extended period of time, regarding matters for which we are responsible. These include ensuring the long-term health and well-being of the University through development of a credible statement of strategic direction and a long-term resource plan."