The New York Times is reporting that Carnegie Mellon has been awarded $1.2 billion in a patent infringement suit. The infringer is Marvell Technology Group, a publicly-traded company. This is good news for Carnegie Mellon, as its public statement indicates.
Now that we have a big win for intellectual property (IP) in the form of patents, should we not turn our attention to copyrights?
I have long been disturbed by what it is to me an imprudent rush toward open access (OA) by major research institutions. My objections to OA are not what we typically hear (i.e., it will undermine peer review, it is indiscriminate, it lacks a solid financial model), but that it simply is not in the interests of major research institutions to support the liberalization of IP policies when they are themselves the biggest creators of such IP in the world. Nor do I view OA from the point of view of the established publishers, whether for-profit or not-for-profit, who worry, with good reason, about collapsing business models. (I dread to see some of the comments I will get on this post.) My concern is simply that the biggest challenge facing research universities today is not access, but how to finance their operations.
Universities are, of course, highly resourceful institutions. It is impressive to see how they have succeeded in obtaining the funding for the work they do — that combination of research grants, corporate sponsorships, alumni giving, and even the establishment of commercial enterprises. Well, maybe it’s not all impressive. I am thinking, for example, of the huge debt loads that students carry, a situation that is calling out for our own Dickens to describe it. A visitor to a majestic campus may not make the connection between beautiful facilities and student debt, but it’s there. Perhaps there are things in the academy that should not be funded, if condemning a young person to years of paying off loans is the price.
While students are piling up debt, universities are giving away their IP. If the creation of IP were somehow democratic, with equal parts coming from all corners of our society, the case for this would be stronger. But the fact is that a small number of institutions produce the bulk of research, and most other institutions, not to mention corporations and some governmental agencies, both domestically and abroad, are free riders. Indeed, the traditional model of publishing, where users or their proxies pay for access, distributes the burden of funding more widely than the Gold OA model that is now becoming mainstream. Gold OA is, economically speaking, author-pays, and most of the authors come from a small number of institutions. Research, in other words, is top heavy. And the top seems to recognize this in all respects except when it comes to copyright.
Far more prudent for the large research institutions to adapt a new model for IP, one that enables them to monetize their development of IP and to use that money to fund their operations — and, one hopes, to reduce the cost of undergraduate tuition or even to elminate it. Now that would be a truly democratizing development. Note that I say “prudent,” not “visionary” or “ideal.” There is a place for prudence in every endeavor that is not existential in nature.
There are many ways to do this. I have long advocated for a significant, transformative development of the university press world in which the presses become larger publishers, with options on the output of their respective parent institutions. When I say larger, I mean very big by publishing standards: surely the reimagined presses at Harvard, Yale, and Princeton could be the equal in size of Elsevier, Springer, and John Wiley. But I have gotten no takers on this idea. The university press world in the aggregate (there are exceptions, of course) has not found its way to the center of any institution’s strategic thinking, nor am I aware of any press that is attempting to move in this direction. Saying that university presses are not pursuing this particular vision does not detract one bit from the outstanding work they are now doing, but what they are not doing is participating in the economic transformation of the funding model of the modern research institution.
There are other ways to go about this, though. There is the Oxford University Press (OUP) model, for example. OUP is essentially a commercial publisher in not-for-profit clothing. The fact that OUP also publishes some of the finest books and journals to be found anywhere is not incidental, and it is not an accident. To be a source of revenue in the IP area for the benefit of the parent does not mean wallowing in low-end commercial publishing. There will always be someone else to publish the next “Fifty Shades of Gray,” the Twilight books, and “The Hunger Games,” but we would expect an organization affiliated with a research university to partake of the aura of the parent’s branding.
Short of doing the publishing itself, a university could license options on its output to commercial organizations. How much would SAGE pay for the first option on the work of the faculty of the University of Chicago? How much is the life sciences research work at Berkeley worth to Springer? Such arrangements could be struck department by department or across an entire institution. These would be interesting negotiations, with commercial publishers attempting to assess the economic value of work that had not yet been written (a bit like much of trade publishing) and universities determined to assert control over how their works appear in the marketplace.
If this is a good idea, we should not be surprised that it will please no one. Advocates of OA will shout about the lockdown of IP by the institutions that sponsor it; representatives of traditional publishing will suddenly find themselves with a host of new rivals (about two dozen, by my estimate) and the requirement to pay for the rights to academic work. The parents who write tuition checks will most likely not be polled, nor will the former students who, at the age of 30, struggle to pay off student loans, can’t afford to buy a house, and must put off having children of their own indefinitely. Let’s call this the Grandmother’s Proposal, as it is drafted for their benefit.
Discussion
27 Thoughts on "Intellectual Property Is a University’s Best Friend"
Joe, you are missing the point of Open Access altogether. It is not about “giving away IP”, but about sharing information and knowledge for the benefit of science and scholarship itself. Financial sustainability of universities is not a goal in itself, but a goal in the service of research and education. If private universities finance the research that’s being published completely by themselves or by private funds, they can of course ‘lock down’ copyright to what is, in essence, “work for hire” by the researcher and comparable to commercially sensitive research in the private industrial sector. This may work for some applied technology, but they would place themselves outside the framework of the global collective quest for knowledge that is generally meant by the word science. Most research is done for the common good and carried out with some sort of public funds. Open Access is not anathema to copyright. In fact, copyright – the authors’ – is needed to open access to scientific literature. One of the most straightforward ways is for authors to attach a CC-BY licence to their articles.
This post argues, “most other institutions, not to mention corporations and some governmental agencies, both domestically and abroad, are free riders.” But universities themselves are the ultimate free riders. If universities start hoarding IP, then that constitutes a good argument for the rest of society to cease funding them, to cease underwriting student loans, and to cease giving them tax breaks. This would cost them far more than they would recoup in IP.
Stephen, did you miss the first two sentences of this post? Universities already horde IP (to the tune of over $1.8 billion in 2011, a figure which doesn’t include the Carnegie Mellon decision). Researchers and institutions are encouraged to do this by the US government, under the Bayh-Dole Act. This piece of legislation has been widely hailed as tremendously successful, both as a driver of scientific progress as well as economic progress.
Why would the US government decide to cease funding universities for doing exactly what it encourages them to do?
OK, well first, the world is larger than just the U.S., and not everybody has been encouraging universities to hoard IP. Second, government policies change as the will of the people changes (in theory, at least) and I am talking about eroding *public* support for the finding of universities. And third, U.S. universities (to use your example) received $62 billion in federal and state appropriations in 2010, an additional 55 billion in tuition and fees, and another $40 billion in state and federal grants and contracts ( http://www.statista.com/statistics/240889/revenue-sources-of-us-higher-education-insitutions/ ). Is this money universities really want to risk losing for the sake of hanging on to their $1.8 billion IP hoard?
Not all nations, but many do. Rather than comparing the raw dollars received by universities to the funds generated from IP, perhaps a broader look is needed, looking at tax revenue received by the government that was generated by that IP, employment, and overall benefits to society provided. The philosophical question then is whether those same discoveries and that same progress is made in a system where the inventors are not offered the sorts of reward and control over their discoveries that is currently offered. Does society benefit more from having Google (NSF-funded) exist, or would it have been better off with having their discoveries rolled in (at no cost) to Yahoo, AOL and AltaVista and the other internet behemoths at the time.
We can both be certain that Sergey Brin and Larry Page would likely not be better off. And that gets to something that Rick Anderson alludes to in his comment below. Allowing faculty to retain control, and gain benefit from their intellectual output is a powerful draw in recruiting. An institution that allows a researcher to patent their work and/or that helps fund startup companies from researchers is more likely to draw top researchers than one that refuses to offer these sorts of rewards.
Even with these rewards offered, many of the best and the brightest currently shun academic research because of the ever-increasing career demands and the relatively poor rewards offered as compared with private industry or Wall Street. By further limiting the rewards offered, I fear that we would make academic research an even less appealing career for many than it already is.
All that aside, I have yet to see a major public upswell demanding the abolishing of patents by universities or repeal of Bayh-Dole in the US. Most of the effort seems to be going toward eliminating restrictions on the articles written about the research concepts, not the locking down of the results and concepts themselves.
Most “public” university are barely funded publicly anymore. I’m not sure the tax breaks and public underwriting of student loans is enough to support public higher education in the long run.
Jan: If the goal of OA is to make information available for free then they should not charge to publish it. I find the OA argument specious at best and a lie at its worse.
Joe: I am not sure there is much value in a single paper. The value is in a bunch of papers that can be monetized. The university is not in a position to set up the reviewing needed and the production that follows not to mention the distribution. Look at the failure of the University Presses. I don’t think a S&T publisher would pay much if anything for first rights and no ensuing rights. Just consider the cost of not only acquiring papers, but also the costs of managing thousands of contracts.
I take it this is basically the author-gets-paid model for scientific publication except the university gets the money not the author. Nice work if you can get it but it would require restructuring the system which makes it problematic, albeit fun to play with and model.
To begin with the price of publications would go way up. If the unis still buy all the stuff then they net no new money to cut tuition with. If they do not then communication takes a hit, with science subsidizing tuition. But the top research dogs might make more at the expense of the lesser dogs. Then too the funders and authors might want a piece of the action, so this is not simple which is one reason it does not happen.
Joe, this is an issue that is actually being discussed with some urgency at quite a few academic institutions (including my own). One thing, I suspect, that gives the university pause about asserting IP rights over faculty output is the likely impact of such a move on its ability to compete for faculty hires. Given two otherwise identical offers, one from a university that allows its professors to keep copyright in all of their work and the other from a university that treats faculty output as work for hire, a rationally self-interested professor is likely to go with the former. If all universities jumped to the latter arrangement at the same time, the competitive issue would disappear — but they won’t, and being the first to do so is a daunting prospect.
Of course, one wouldn’t be the first; there are already a few universities doing what you suggest, at least to a limited degree. Some, for example, assert copyright in all IP created on campus, but automatically grant the faculty member a virtually unlimited license to treat his or her original work as if he or she held the copyright. (I also have the impression–though I can’t substantiate it at the moment–that in some countries, university ownership of all campus-produced IP is the norm.)
But this brings up another serious complicating factor: the fact that for a faculty member, it can be very hard to draw a clear line between what constitutes “on the job” IP output and what does not. As a faculty member, I am technically employed for 24 hours a day, seven days a week–not for a 40-hour workweek. If I write an article about librarianship while sitting at my desk at work at 10:00 am, that article is pretty clearly something I did on the job. But what if I write an article on librarianship while sitting at my dining-room table at 8:00 pm? What if I write it on the plane on Sunday evening, on my way to a library conference? What if I write a record review or an op-ed piece at home?
All of that said, I’m particularly intrigued by your idea of giving the university press an option on all campus-produced IP. I’m going to bring it up with our press director and see how she responds.
Thanks for an excellent and thought-provoking post.
Joe:
I don’t think I am alone in having advocated for many years that universities come to regard publishing as a core function that should be invested in and grown, in order to protect and grow the university’s intellectual property. This can be done without the university having to lay claim to all of the intellectual output of its scholars. I heartily support that idea.
The other, not so much.
Thanks for this provocative post and your previous ruminations on Billy Idol. You’re on a roll.
Most research universities have technology rules explicitly governing IP rights of faculty. In general, the assumption is that the university owns all IP generated by a faculty member who uses university resources in any aspect of the work. Most universities demand that all commercialization be handled through a university technology transfer office and offer some revenue sharing to encourage faculty to participate in the commercialization of university developed technology. The one historical exception are royalty payments on textbooks where faculty typically receive the full royalty payment even if the work was performed on university time.
University technology transfer offices will object strenuously to an attempt by a university press to invade their turf. And the faculty are frustrated enough by having to deal with the tech transfer office. Inserting yet another player would create a wholesale revolt.
That is true only for patents, not copyrights. Universities have only recently attempted to control the use of courseware produced by faculty through patent-like sharing agreements. They have stayed away from trying to exercise any control over faculty books, whether textbooks or monographs, and journal articles.
Is the spirit of the university system not to share knowledge and foster innovation? Modern IP laws do as much to stifle innovation as to foster it. This is a suggestion to perpetuate and sustain a system against the spirit of its existence.
Kathleen Fitzpatrick has been among those recently calling for a return to the earlier model of university press as service agency for its university’s faculty publications. This is how the University of California Press began, for example, and the UC Press has returned, in part, to that model in the way it has set itself up to be the service provider for various institutes on campus who want to do their own publishing. The University of Minnesota Press is also partly following this model in providing publishing services for several centers on its campus. The reason this did not work, ultimately, is that universities came to insist that their presses recover most of their operating costs from sales, and to make that possible, presses followed the model of other publishers in specializing in certain fields and building brand identity for themselves in those fields. It would take a mega-press the size of Oxford or Cambridge to publish effectively in all of the fields that most universities represent in their research undertakings. To get to that size would take major investments that no American university is likely to make anytime soon, I suspect.
As for owning IP, universities have ventured into the copyright domain to the extent of claiming shared ownership of, or a perpetual licensing interest in, certain types of copyrighted work, mainly what we call courseware. They have come to this point because of the increasing investment of university technical staff time and monetary resources in assisting faculty in producing such courseware, and they want to make sure that, as with patents, the university will get a share of any revenues generated from commercialization of this copyrighted material. The patent model of shared income between faculty and university has, thus, come to be adopted for a portion of copyrighted work that faculty now produce. This is what Penn State did after a report from an IP Task Force (on which I served) in 2000. But more recently there has been some movement in the other direction: http://live.psu.edu/story/56887.
Open Access, whether “gold” or “green”, has strictly nothing to do with intellectual property and IP rights. Not the least.
Giving away your IP rights is what you do when you sign the classical agreement with the publisher if your paper is accepted. Researchers and Universities have abandoned their IP rights for decades and by the thousands unless they have patented their research results before publishing them (btw, patents are publications). OA does not change that a bit.
So, the entire reflection here is off the point.
In biotechnology and biomedicine, universities have been exploiting intellectual property for decades and are considered among the most aggressive IP stake holders in the sector. The courts have narrowed the experimental use exemption in patent law because universities are behaving as businesses rather than public institutions.
Most technology builds on existing technology, and in complex fields such as biomedicine, the number of IP stakeholders may be large. The tragedy of the anti-commons occurs when overall progress is paralyzed by the exorbitant demands of individual stakeholders. A classic example is golden rice where Monsanto found it impossible to reach consensus among 20 something IP stakeholders and ended up giving the project away to the WHO. Avoiding the tragedy of the anti-commons is precisely a goal of the open access movement. Key to success in avoiding the anti-commons is that work needs to be freely accessible FOR COMMERCIAL USE. If an academic has been supported through a non-profit public institution and grants from the government and non-profit foundations, they and their institution have already been paid for their work. The whole point of having publicly funded grants is to develop technology that can be broadly used. If you don’t want to give away the IP resulting from your work, no problem, join the private sector, raise your own funds and enjoy the fruits of your labor. Just don’t ask the public to support you in the first place.
Two problems with this argument:
1) CC-BY, the license being discussed here, does nothing to ensure the accessibility and use of the research results. CC-BY deals with the copyright status of the article written about the research results. The actual research results are very often, as you note, patented by the researcher or their institution. The article they subsequently write can be OA, freely accessible, and CC-BY licensed, but the data and concepts of the work can at the same time be completely locked up behind a paywall. You can read all about my new cure for cancer, but if you actually want to cure a patient, you have to pay me. If the goal of the OA movement is indeed to avoid these types of situations, then why is all the attention being paid to the status of the written reports about the research, rather than the research itself?
2) If one assumes that by paying an Article Processing Charge (APC), the publisher and the journal owner (often a not-for-profit research society) has been paid for their efforts, then they must be fully paid through that APC. For many journals, APC’s are subsidized by income made through secondary rights licensing, pharma reprints, aggregators, translations, etc. If you eliminate those revenue streams via CC-BY, then the APC will no longer be subsidized and will increase. This means that those looking to commercially exploit the research literature get a free ride on the backs of the research community. They get free raw material to make their fortune, all paid for with dollars that instead could have been used to fund further research.
This entirely ignores the concern that many authors, especially in the humanities, have about how well their works are translated into foreign languages. If a CC-BY license is used, the author gives up any opportunity to prevent a poor translation from being made and sold.
Quick CC-BY question: what happens to using reprinted figures in a journal that uses a CC-BY license? If I write a review article for a PLoS journal and that article will be licensed via CC-BY, does that mean I can not reuse any old figures originally published in journals under other forms of copyright? I’m assuming that publisher permission to reprint a copyrighted figure does not grant that the figure now be licensed in a CC-BY manner and no longer subject to copyright, correct?
Has anyone dealt with requests like this and do you grant permission for copyrighted material to be reprinted and re-licensed in this manner? Or can you publish a CC-BY licensed article that contains a figure that is separate from the rest of the article and available under different copyright terms?
The CC-BY license does not grant any author the right to authorize reuse of third-party copyrighted material that the author had to get permission to use in the first place.
Last fall, The University of Michigan amended its institutional copyright policy to allow for a University “preservation right” http://www.lib.umich.edu/copyright/overview-university-michigan-copyright-policy
This is a step less severe than reversing the longstanding US university custom of not claiming copyright (via the work made for hire doctrine) in faculty academic research scholarship.
Given the economic pressures many institutions will face over the next decade, though, I believe more schools will begin to enforce the WMFH doctrine, as I noted in my column last summer http://copycense.com/2012/11/01/higher-ed-work-for-hire/
I very much doubt universities will start to use WMFH to claim copyright ownership anytime soon. I served on an IP Task Force at Penn State in 2000, and we recommended a number of changes in the university’s IP policy, including the university’s receiving a perpetual license for use of any courseware produced with substantial university resources, but the assertion of WMFH was a nonstarter. And what if universities did claim ownership under WMFH? How is that going to help them deal any better with the serials crisis? Individual universities may have some more bargaining power than individual faculty members, but they still are not likely to prevail upon large commercial STM publishers to change their practices, and no one university is going to want to puts its faculty at a disadvantage via-a-via any other. Even if they could wield more power, what would they do if commercial publishers then decided to abandon the business? Universities would then be stuck with the costs of publishing everything themselves–not a burden they will want to carry in these tight financial times.
I would dismiss Mr. Esposito’s essay entirely. Its primary flaw is his assumption that universities create copyright-worthy intellectual property. While they employ faculty members, expect most of them to publish, and revel in the reflected glory of their faculty’s reputation, the copyrights belong to the authors. The authors select the publishers, earn royalties, and take the copyrights with them when they move, retire, or die.
Aren’t you forgetting the some 80 university presses that exist in the U.S. and whose parent universities own their copyrights? That is a massive amount of IP that universities own.
Ironically, colleges and universities have cut their library budgets to the point where they cannot afford to buy most university press books. So, in a ‘hostile’ marketplace, what are these copyrights really worth?
While it is common for authors of journal articles and contributed volumes to sign copyright agreements as authors of “works made for hire,” well-informed authors of important books, particularly those with professional agents, don’t sign over their copyrights.
