Chapter Knowledge And Property Draft 090809

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Tradeable knowledge: the development of intellectual property policies in the 1980s and 1990s

Hannah Forsyth Draft 8 August 2009

Introduction Knowledge is not intellectual property. Nevertheless, once the language of

intellectual property was widely deployed in Australian universities, the ownership of

knowledge was explicitly accomplished. This occurred in the late 1980s and early

1990s, when for reasons explored in this chapter, universities were compelled to

develop policies on the allocation of intellectual property. An uneven and disorderly

process, policy development took place both specifically – within the narrow confines

of legal definitions of intellectual property – and symbolically, entering discourses

around the purpose of the university form and the value of the labour within it. That is

what this chapter is about. This chapter considers the forces that obliged the

universities to transform earlier patent policies into broader policies encompassing

the full breadth of intellectual property – and beyond, as we will see.

The scramble to control university intellectual property was not confined to the

universities themselves. Government departments and centres, as well as the

Australian Vice Chancellor’s Committee, were all competing to have the definitive

say over the ways that universities regulated the ownership of intellectual property.

The guidelines, reports, analyses and requirements they produced are used in this

chapter to highlight policy initiatives that compelled university action. They also assist

in understanding some of the economic and discursive imperatives to intellectual

property policy development in the 1980s and 1990s. These cannot be entirely

separated from the other forces compelling increased research commercialisation,

the commodification of educational services and changes in university governance

and mission priorities. Nevertheless they do provide a new and unique language

surrounding the value of knowledge and even, perhaps, the purpose of the

university.

In addition to the policy framework, a sample of university intellectual property

policies are examined in this chapter to determine the issues that university

administrators were concerned about in their preparation.1 These policies shaped the

1 The Australian National University, University of Wollongong, Macquarie University, University of New England, Royal Melbourne Institute of Technology (RMIT) and Adelaide University. The Justice French

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relationships between universities as institutions, the staff they employed, the

students they enrolled, visitors contributing to their intellectual community and the

increasing numbers of government and industry colleagues they worked with. The

actors thus regulated by them, and the knowledge they possessed, became

especially important as a result of intellectual property policies. For the language of

property made knowledge seem alienable – separable from the knower – and thus

more observably tradeable. This sense of trade meant that establishing intellectual

property’s owner was paramount.

Legally, intellectual property refers to a set of rights temporarily granted to enable

commercial exploitation of particular types of products of intellectual labour. It can be

a little difficult to define, since it covers quite a disparate set of activities, making it a

slippery and yet surprisingly narrow legal concept.2 Some of this difficulty is derived

from the vastly different legal histories attached to, say, the development of copyright

to protect artistic works, literature and music and the developments of patents and

protection for inventions, breeds of plants, trade secrets and computer software.3

McKeogh and Stewart point out that the language of property can lead some to

consider the concept of intellectual property to be far broader than it (legally) is:

The principal danger…lies in forgetting that the term ‘property’ is merely a conclusory

statement and in falling into the trap of assuming that any identifiable ‘thing’ must belong to

someone. In the present context this translates into the erroneous belief that all fruits of

intellectual activity have some intrinsic claim to be treated as property.4

This is a ‘mistake’ frequently made, such as the retired academic who asked a state

politician if he would please “capture and use my intellectual property,” referring to a

substance still inside her head.5 The legal narrowness derives from the fact that

knowledge and intellectual property are not equivalent and it is not legally valid to

refer to anything kept solely within one’s mind as intellectual property. But the error

may not come from the language alone, as this chapter explores: it may also be a

result of a desire by universities in the 1980s and 1990s – and perhaps into the

present – to make more things ownable than the law of intellectual property provides.

judgement of the case of intellectual property ownership UWA v Gray in 2008 also contains many details of the process of intellectual property policy development and implementation by the University of Western Australia in the 1980s and 1990s. This too is used. 2 Staniforth Ricketson, The Law of Intellectual Property (North Ryde: The Law Book Company, 1984), 3. 3 Jill McKeogh and Andrew Stewart, Intellectual Property in Australia (Chatswood NSW: LexisNexus Butterworths, 2004), 3. 4 McKeogh and Stewart, Intellectual Property in Australia, 19. 5 Carrol O'Donnell, Exploiting Australia's Intellectual Property Better (University of Sydney Website, 2007 [cited 18 May 2009]); available from http://www.usyd.edu.au/alumni/about/in_your_view/articles/carol_odonnell.shtml.(PDF file in author's possession)

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Why universities developed intellectual property policies The authors of the book Universities and Intellectual Property (an outcome of an

Australian Research Council Large Grant6) were law academics from Monash

University in Victoria. They describe the process of developing intellectual property

regulations at their university in the 1990s – whereupon, to their apparent surprise,

they discovered all other universities were similarly shifting from a policy covering

patents to one that was more broadly applicable.7 Monotti and Ricketson describe

this as a kind of legal awakening by the universities, like realising one has “been

speaking prose for over forty years” without knowing.8

Despite this claim, universities did not rumble along for decades and then all of a

sudden, collectively, discover that they needed a more complex intellectual property

policy as some sort of inevitable consequence of university maturity. The period in

which policies were developed is significant. In the previous chapter(s) I have

outlined the drivers for universities to explore means to diversify their income sources

through research commercialisation. The opinion of many politicians, public servants

and members of the public whose voices were clearly heard via Murdoch’s Higher

Education Supplement was that if the knowledge universities were producing was

any good, someone (other than the government) would be willing to pay for it.9

Universities were increasingly establishing companies to assist in the management,

commercialisation and risk-taking inherent in marketing the outcomes of research.

The development of intellectual property policies was certainly a part of this

commercialising project. Of the sample selected, the Australian National University’s

intellectual property policy was formally recognised in 1986. The University of

Western Australia’s policy is dated 1996, although discussions regarding a new

policy commenced in 1988. This would seem to represent the approximate range of

intellectual property policy development – 1986 to 1996. The Australian National

University’s policy could reasonably be considered to be at the early end of the

spectrum, being before the establishment of the Australian Research Council when

protection of intellectual property started to be discussed by policy makers as a

responsibility of universities receiving public funding.10 The Australian National

University’s 1986 policy was present in the Macquarie University intellectual property

6 Education and Training National Board of Employment, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property," ed. Education and Training National Board of Employment (Canberra: Australian Government Publishing Service, 1995), 9. 7 Ann Louise Monotti and Sam Ricketson, Universities and Intellectual Property: Ownership and Exploitation (Oxford: Oxford University Press, 2003), 10.Para 1.19 8 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation, 9.Para 1.18 9 REF 10 ARC REF

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file, showing that Macquarie held it as an example during its own policy development

process. The University of Western Australia’s slowness in developing a broad

intellectual property policy from the earliest discussions in 1988 to implementation in

1996 is not terribly unusual. For instance, the University of New England also has a

policy gap between1989 and 1995, when it appears the university left all policy in the

hands of its commercialisation company, UNE Partnerships.11

This type of confusion between the roles of the university proper and the

commercialisation companies they were establishing coincides with the creation at

most universities of a Pro-Vice Chancellor or Deputy Vice-Chancellor (Research).

Both the University of Western Australia and Macquarie University created this role

at the time of the Dawkins reforms – and others did as well. The role was needed,

according to Macquarie University News in 1987, due to the growing workload

associated with research management. This workload was seen to be a result of the

growing complexity of the policy relationship with Canberra and the administration of

an increasingly diverse commercialisation project.12 Since the senior research role

was new, it took some time for universities to establish what the role entailed.13

Combined with the establishment of commercial entities, new research imperatives,

a totally new higher education policy framework from Canberra and new

organisational structures to contend with, the process of policy making across the

system was messy and the policies were influenced by a range of insistent issues.

Despite the chaos attached to the emergence of intellectual property policies across

the Australian higher education system, the fact that they did so consistently within

around a decade points to identifiable causes. Monotti and Ricketson put it down to

the emergence of new complexities in the relations of universities to the rest of the

world. These complexities, they claimed, were a result of changes in the ways that

university research was being conducted.14

University research, as we saw in earlier chapter(s), was being increasingly asked by

the Commonwealth government, industry leaders and (arguably) the Higher

Education Supplement, to align closer to explicit needs in industry and government.

This required university researchers to collaborate with industries and government

11 William Oates, "Re: Request to Access IP Policies 1980-1998 (University Archivist: Personal Communication: Email)," ed. Hannah Forsyth (Sydney: Email, 2009). 12 Anonymous, "Appointment of a Pro-Vice Chancellor (Research)," Macquarie University News, September 1987 No.197 1987. 13 J French, "University of Western Australia v Gray (No 20) [2008] " in FCA 498 CORRIGENDUM 2, ed. Federal Court of Australia (Perth: Federal Court of Australia Western Australia District Registry, 2008). 11 14 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. PAGE

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departments, to “listen” and “respond”.15 Crucially, it also required universities to seek

research funding from more diverse sources. Predictably, some research funding

providers now expected to receive a financial return from their investment in

knowledge. This was particularly the case for commercially minded organizations

whose investment in knowledge was driven by the promise of increased productivity

or profit from product development.16 Where research would result in financial gain

and where external sponsors were involved, the rights to receive the benefits of such

gain were claimed and contested. Universities started to find themselves, argue

Monotti and Ricketson, in the position of navigating complexities over ownership.17

These complexities could not be overcome via the old patent policies, according to

Monotti and Ricketson, that outlined the responsibilities and rewards of patents to

universities and their staff, since so many more players were involved, conducting so

many new and different types of research. In order to manage these new

relationships and the ownership issues associated with them, new policies were

developed, they argue.18 Basically Monotti and Ricketson see a legal problem that

resulted in a policy solution, albeit a tricky one. What Monotti and Ricketson are

describing is consistent with a massive worldwide shift in the character and purpose

of much university-based research – the emergence of what Gibbons and colleagues

defined as “Mode 2” research.

In the early 1990s, Michael Gibbons and five of his colleagues observed that

research in United States and Western European universities had changed

substantially since the early 1980s – a set of observations that would equally apply to

the Australian system. In a thesis that became both popular and notorious19 a

completely new approach to the production of knowledge was put forward as “Mode

2”. Traditional (or “Mode 1”) research was curiosity-driven and based in traditional

disciplines. New knowledge emerging from Mode 1 research would find its way into

industry and practice through traditional processes: the employment of graduates

and the publication of results.20 This linear model for knowledge development and

dissemination became complicated in “Mode 2”, which was characterised by a vast

expansion of much more fluid networks of people. Mode 2 knowledge production

often started with an identifiable application-based problem, involved participants

15 HES REF 16 REF? AVCC magazine Univation 17 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. PAGE 18 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. PAGE 19 Helga Nowotny, Peter Scott, and Michael Gibbons, "Introduction: 'Mode 2' Revisited: The New Production of Knowledge," Minerva 41 (2003): 179. 20 Michael Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies (London: Sage, 1994), 87.

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from inside and outside the university, from multiple disciplines (leading sometimes

to the creation of new ones) and was likely to be accountable for its quality to

multiple parties: academic peers, professional organizations, shareholders,

stakeholders or the public.21 Gibbons and colleagues said:

Knowledge can no longer be regarded as discrete and coherent, its production defined by clear

rules and governed by settled routines. Instead, it has become a mixture of theory and

practice, abstraction and aggregation, ideas and data.22

Mode 2 was connected, in these authors’ opinions, to the diversification of

mechanisms of transferring knowledge from universities to industry, including

commercialisation. This, they felt, would lead to a loss of universities’ reputation for

reliability, as commercial interests became inseparable from university-based

research.23 Moreover, as university-based knowledge lost its distinction from

commercially derived knowledge, changing labour patterns led to “revolving door”

relationships with funding bodies, and questions of the ownership of the intellectual

property rights multiplied.24 The increased focus on intellectual property rights on

campuses also gave elevated roles to university lawyers, shifting decisions regarding

knowledge production away from collegial, disciplinary processes to more legal and

commercial structures.25

Attempting a more optimistic approach to Mode 2, in 2000 Henry Etzkowitz and Loet

Leydesdorff claimed that Mode 2 research was actually the original type of research

conducted by universities. Their assertion that commercial research was consistent

with the original mission of the university form suggested that Mode 1 was the false

prophet, imported with Nineteenth Century institutionalisation processes. As

universities regained their (true) focus on their “third mission” of directly contributing

to industry and the economy, economic development was becoming as important a

legitimising mechanism for university knowledge as contribution to culture.26 To

assist their project of putting a positive spin on this shift in the character of research,

21 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 88. Nowotny, Scott, and Gibbons, "Introduction: 'Mode 2' Revisited: The New Production of Knowledge," 179. 22 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 81. 23 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 88. 24 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 53. 25 Gibbons et al., The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies, 37. see also Simon Marginson and Mark Considine, The Enterprise University: Power, Governance and Reinvention in Australia (Cambridge: Cambridge University Press, 2000). 26 Henry Etzkowitz and Loet Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," Research Policy 29, no. 2 (2000): 116.

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Etzkowitz and Leydesdorff proposed a productive metaphor for the new networks

between industry, government and universities: the triple helix.27 In another article

with different colleagues in the same issue of Research Policy, Etzkowitz claimed

that by “deploying” the triple helix metaphor, universities could stop being ivory

towers and make contributions that governments could justifiably (that is, justify

economically) support financially – bribing their academic readers, in a sense, to

deploy the helix metaphor.28 As well as the productive power implied by the analogy

to DNA, their triple helix model also suggested to Etzkowitz and Leydesdorff that

there was no need to resolve the tensions brought about by combining traditions of

disinterested curiosity with profit-motives. Since their metaphorical helix was

inherently unstable and therefore (they said) dynamic, the university form need not

be too concerned about similar contradictions in its mission.29 The relentless

(re)negotiation of intellectual property between parties all now motivated by profit (but

to whom profit somehow “means different things”) is simply a part of the productive

power of the triple helix, according to Etzkowitz and his colleagues.30

Associated with this shift in the character of research in universities globally, is a

(less dramatic, to be sure) shift in ideas associated with authorship. In the same way

that the god-professor had been undermined as a central and singular authority by

student activism in the 1960s an 1970s, so too had Roland Barthes announced the

death of the god-author as the creator of meaning, replaced by the multiplicities

supplied by manifold readers.31 The undermining of the legitimising authority of the

academic that Lyotard had showed32, combined with (as we saw in previous

chapters) their declining status in the pages of the Higher Education Supplement to

reduce the gravitas of the academic author. Moreover, these ideas brought to light

the reality that authorship as a category had been invented to claim ownership,

power and income based on a myth of the individuality of creative genius.33 The

reified role of the single author as genius thus disrupted somewhat – though by no

means universally or absolutely – the Australian Vice Chancellors, in their advice to

27 Etzkowitz and Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," 111. 28 Henry Etzkowitz et al., "The Future of the University and the University of the Future: Evolution of Ivory Tower to Entrepreneurial Paradigm," Research Policy 29, no. 2 (2000). 29 Etzkowitz and Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," 118-19. 30 Etzkowitz and Leydesdorff, "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations," 118-19. 31 Roland Barthes, "The Death of the Author," in Image Music Text (London: Haroer Collins, 1977). 32 Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledge (University of Minnesota Press, 1984), 37-38. 33 Roger Chartier, "Figures of the Author," in Of Authors and Origins: Essays on Copyright Law, ed. Brad Sherman and Alain Strowel (Oxford: Clarendon Press, 1994), 12-13. Mark Rose, "The Author as Proprietor: Donaldson v Becket and the Genealogy of Modern Authorship," Representations 23 (1988).

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universities on intellectual property, could legitimately claim that research was almost

never a purely individual act.34 Having established the complicatedness of the

question of who was the creator of new, a straightforward resolution presented itself:

the university produced it all. At the very least, it could certainly be established in

nearly every instance that university-owned resources were “material to the

development” of all research.35 This is important, since the content of the university

intellectual property policies from the 1986-1996 period suggest that universities did

not fear the claims of sponsors, collaborators or government as much as the claims

of their own staff.

The first university intellectual property policies do not spell out the ownership of

intellectual property developed in collaboration with other organizations and nor is

much attention given in any of the sample to the ownership of sponsored research.

University intellectual property policies all (at least, all in the sample) concentrated on

the ownership of intellectual property produced within the university – primarily by

staff, but also by students and visitors.36 It is obvious from this focus that universities

were keen to stake their claim to the intellectual property produced within them. The

same concern was also reflected in the first (1993) Australian Vice Chancellor’s

Committee discussion paper on intellectual property, which reads as a how-to guide

for universities to claim intellectual property created by their staff.37

This suggests that universities were not developing intellectual property policies in

order to manage increasingly complex ownership problems emerging from a Mode 2

research environment. Rather, universities were attempting, through these policies,

to harness the substance at the core of their mission and turn it to profitable gain. Of

course universities were not alone in this, as the knowledge economy came to be

more explicitly recognised as fundamental to late 20th Century development. Arena

and Carreras’ 2008 book The Business of Intellectual Property claims:

34 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," (AVCC, 1993). 10 35 Macquarie-University, "Intellectual Property Policy," in Intellectual Property File (Sydney: Macquarie University Archives, 1991). page 36 Australian National University, "Intellectual Property Policy," in The Australian National University Finance Committee File (Canberra: Australian National University Archives, 1986). Macquarie-University, "Intellectual Property Policy." Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy," (Royal Melbourne Institute of Technology Archives, 1993). University of Wollongong, "Intellectual Property Policy," (Wollongong: University of Wollongong Archives, 1988). The University of New England does specify “changes in contractual relations with outside bodies” as one of the reasons for developing the new policy, though the policy itself, like the others, focuses on staff-produced IP (p.21) University-of-New-England, "Intellectual Property Policy," in Intellectual Property Policy File (Armidale: University of New England Archives, 1995). 37 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper."

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Knowledge is increasingly coming to be recognised as an asset. Through the 1990s and

beyond, the field of intellectual asset management has sought to develop theories and

practices to capture and harness the knowledge that a firm’s workers create.38

Universities, like other knowledge-rich industries, were trying to claim knowledge

“assets” in order to enhance their financial position. Universities had two immediate

and complementary motives to do so. Firstly they were in a desperate situation

financially, with funding systematically reduced by the Commonwealth government.

Naively, perhaps, they transferred their hope to the exploitation of intellectual

property as the mechanism that might liberate them from the poverty imposed by

declining public funds.39

Secondly, just as the new entrepreneurial academic was gaining standing in the

Higher Education Supplement, in opposition to an image of lazy, arrogant ivory-tower

academics, so universities capable of supporting themselves were gaining credibility

in the sector. This approach was not just an ivory tower versus entrepreneurial public

image: public policy makers were starting to talk about financial return as a

reasonable expectation of the public’s investment in universities.40 A review of

research policy in the late 1980s was informed by comments suggesting that

universities were failing to return to the public the real value of the knowledge

produced as a result of its funding.41 Development of commercially viable intellectual

property seemed, in this discourse, to be the logical outcome, once funding became

attached to the language of investment. From within this logic, where income was not

being derived from such an investment, the public could question whether the

knowledge was worth their investment at all.42 As such, universities were almost held

to ransom over intellectual property: they were to produce commercially viable

knowledge for profit, or risk losing whatever remaining public funding they had for

research.

Even where this more extreme position was not held, a new sense of financial

reciprocity as a type of public-funding justice suggested that if anyone was deriving a

38 Christopher M Arena and Eduardo M Carreras, The Business of Intellectual Property (Oxford: Oxford University Press, 2008). 29 39 Elizabeth Garnsey, "The Entrepreneurial University: The Idea and Its Critics," in How Universities Promote Economic Growth, ed. Kaoru Nabeshima (Washington DC: The World Bank, 2007), 229. 40 Technology and Commerce Department of Industry, "Bringing the Market to Bear on Research. Report of the Task Force on the Commercialisation on Research," ed. Technology and Commerce Department of Industry (Canberra: Government Publishing Service, 1991). page 41 Education and Training National Board of Employment, "Report of the Committee to Review Higher Education Research Policy," ed. Education and Training Department of Employment (Canberra: 1989). page 42 Prime Minister's Science and Engineering Council (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview," ed. Department of Prime Minister and Cabinet Office of the Chief Scientist (Canberra: Australian Government Publishing Service, 1993). page

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profit from university-based knowledge it was only fair to the public to reinvest some

of that profit in universities. The University of Wollongong 1988 policy said:

Council has an obligation, under government policy, to seek reimbursement for costs which

have been incurred in research and development leading to a discovery from which profit may

be derived, and also to direct some of the profit (if any) to purposes for which the University

has been established.43

This “obligation” also meant that universities had a responsibility to promote profit-

making research in a way previously unthought of. Again, Wollongong’s policies are

a clear example. The 1988 policy – “Council wishes to encourage … invention” –

contrasts markedly with the 1979 Patent policy it replaced, which said:

Although university research is not directed specifically towards patentable inventions, there

can arise in the course of research, inventions which in the interests of the public, the

University and the inventor/s, should be patented.44

This suggests a shift in the university’s sense of its responsibility to the public.

Initially seen as using intellectual property when it is the best way of making research

available to the public, a decade later Wollongong University, responding to

government policy, saw it as their responsibility to recoup the costs the public

invested.

One of the issues here, though, was where these recouped costs should be directed

and universities, with some justification, started to fear that the Commonwealth would

claim income derived from university intellectual property. The Royal Melbourne

Institute of Technology Intellectual Property Committee, considering the joint advice

of the Australian Research Council and the Higher Education Council in 1995 noted

that the input of the Australian Vice Chancellors, while represented among the

report’s authors, was not evident in the report itself. This was important because the

Australian Vice Chancellors’ Committee was seen as the protector of the universities.

Failure to take into account the Vice Chancellors’ views led the Royal Melbourne

Institute of Technology committee to express:

…caution over the proposed introduction of intellectual property agreement requirements which

could presage an increasing attempt by DEET or the ARC to control and define university

intellectual property.45

By 1995 universities like The Royal Melbourne Institute of Technology had good

reason to express concern about government interference in intellectual property. In

the previous six years all of the Commonwealth acronyms had had something to say

43 Wollongong, "Intellectual Property Policy." 44 University of Wollongong, "Patents Policy," (Wollongong: University of Wollongong Archives, 1979). 45 Royal-Melbourne-Institute-of-Technology, "Intellectual Property Committee Minutes of Meeting 6/95: Friday 13 October``," in Intellectual Property File (Melbourne: RMIT ARchives, 1995).

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about it: reports on the commercialisation of intellectual property came from ARC

(Australian Research Council), HEC (Higher Education Council), PMSEIC (Prime

Minister’s Science Engineering and Innovation Council), NBEET (Dawkins’ super-

department, the National Board of Employment, Education and Training) and the

DITC (Department of Industry, Technology and Commerce). They all started with a

review with its own acronym: HERP, the review of Higher Education Research

Policy.

The National Board, the Australian Research Council, the Department of Industry and the Australian Vice Chancellors – and the control of knowledge As we have seen, John Dawkins was instated as Minister for Education in 1987, and

implemented his Higher Education reforms in 1988, including the establishment of

the Australian Research Council. In January 1989, the Australian Research Council

released its first advice to applicants for research funding, for grants for 1990. In this

advice, the Council required that if an “invention or process improvement” arises, the

grant recipient or their university must protect the “industrial property in that

invention”. Then, at their own expense, they may apply for a patent, at which point

they must notify the Commonwealth. Then:

If the grantee and the institution do not wish to apply for a … Patent…the grantee and the

institution shall, at the request of the Commonwealth, assign to the Commonwealth the

right…and no amount will be payable by the Commonwealth for any such assignment.46

This was a major deviation from the Patents policy and practices of most institutions

where, as a matter of tradition, it was understood that the researcher could choose to

publish or in other ways make public all research results, and thereby release to the

public (and thus choose not to protect) any invention or knowledge. They could also

choose to patent if they wished, but the right to choose belonged to the researcher.47

These new research grants would place a requirement on researchers to protect the

outcomes of research if they were patentable. Universities were most likely more

concerned about the apparent wish of the Commonwealth to claim ownership of any

intellectual property than the removal of the choice to publish or patent. The

requirement alone would have required universities to review and revise their more

liberal existing patents policies. The Royal Melbourne Institute of Technology

concern regarding government interference reflects this concern.

46 Australian Research Council, "Advice and Instructions to Applicants for 1990 Research Grants," ed. Education and Training Department of Employment (Canberra: Government Publishing Service, 1989), 27. 47 REF the university policies and letters that say this.

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In April of the same year, Purple Circle member Robert HT Smith – now head of

Dawkins’ National Board of Employment, Education and Training – chaired a review

of Higher Education Research Policy. This review focused on enhancing the

performance of universities and increasing research output and on establishing and

strengthening financial and innovation links between higher education research and

industry.48 Then, in June 1989, the Australian Research Council released a report On

the Public Funding of Research, making a case for the role of public funding of basic

research especially (strengthening its own position) and recommending a review of

the whole system of innovation to identify any gaps in the development from basic

research to product development.49

In December 1989 Prime Minister Bob Hawke asked the Australian Science and

Technology Council how one might go about setting national directions for research

“so that Australia’s research effort will best support the Government’s national policy

objectives”.50 The resulting 1990 report argued that research was not the creative

and unpredictable process academics had claimed, and that new ideas about the

character of the discovery process justified government interference in the types of

knowledge pursued by universities:

There has been a significant rethinking of the long-held belief that discoveries are essentially

unpredictable… Globally there is now much greater awareness that there must be conscious

decision-making about where to put the national emphasis in research.51

In May 1990, a National Board of Employment, Education and Training committee

chaired by head of the Australian Research Council (and another Purple Circle

member) Don Aitkin claimed that more of the research funding for universities should

be funnelled through the Australian Research Council to be redistributed

competitively, which he said would produce better research.52

In 1991, the Department of Industry, Technology and Commerce released a Report

of the Task Force on the Commercialisation of Research from (known at the time as

the Block Report, chaired by commercial economist, Ray Block). This report

advocated a market-driven focus on research commercialisation claiming that

48 National Board of Employment, "Report of the Committee to Review Higher Education Research Policy." 49 Australian Research Council, "On the Public Funding of Research," ed. Education and Training Department of Employment (Canberra: Government Publishing Service, 1989). 50 Australian Science and Technology Council, "Setting Directions for Australian Research," ed. Education and Training National Board of Employment (Canberra: Government Publishing Service, 1990), iii. 51 Council, "Setting Directions for Australian Research," xi. 52 Education and Training National Board of Employment, "The Transfer of Operating Grant Funds to Competitive Schemes after 1991: Advice of the Nbeet and Its Arc and Hec," ed. Education and Training National Board of Employment (Canberra: Government Publishing 1990).

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market-pull, rather than technology-push, was a more successful strategy for

research commercialisation. This was not just a preferred business methodology for

the task force members, but was a subtle argument that would see market needs

drive national research priorities:

The task force believed that Australia cannot afford to let technology drive our business

direction; rather, the market must drive the direction of our business growth and innovation

behaviour…unless research has relevance to a market it will have no commercial potential.

Indeed, the task is perhaps more aptly described as how to bring the market to bear on

research rather than how to commercialise research.53

When combined with the strategic decisions of the Australian Research Council, this

approach would certainly have taken the right to choose research activities away

from academics – a systematic undermining of academic freedom. The result would

have explicitly shifted the control of knowledge to the market.

The Australian Research Council in 1992 took the Block Report and a similar

document on the commercialisation of Medical Research (known as the Coghlan

Report) and provided comment on their recommendations to the National Board of

Employment, Education and Training, who then passed these to the Minister.

Despite wanting to encourage university-industry links, The Australian Research

Council only gave qualified support to the reviews’ recommendations. In relation to

the recommendation of targets for industry funding, they said:

Universities should be free to determine the extent of their links with industry, again

acknowledging that, in most instances, this [Block Report recommendation] target level of

commitment would already be exceeded.54

The Australian Research Council, consistent with the neo-liberalism with which it was

formed, preferred financial incentives to regulatory controls. The same applied to

externally funded chairs, where:

Encouragement of further such liaison [appointment of industry-funded chairs] was supported

by the board, which emphasised, however, that specific institutional appointments should not

be dictated by government.55

While appearing, in this way, to support institutional autonomy and thus academic

freedom, the Australian Research Council gave universities choice – it just limited the

space in which they could choose. According to the Council, Universities should be

53 Department of Industry, "Bringing the Market to Bear on Research. Report of the Task Force on the Commercialisation on Research." 54 Education and Training National Board of Employment, "Commercialisation of Research: Advice of the National Board of Employment, Education and Training and Its Australian Research Council," ed. Education and Training National Board of Employment (Canberra: Government Publishing Service, 1992), 2. 55 National Board of Employment, "Commercialisation of Research: Advice of the National Board of Employment, Education and Training and Its Australian Research Council," 2.

14

able to choose their own percentage of commercialisation and choose who would be

appointed to industry-funded staff positions. But they could not question the fact or

validity of externally funded appointments and research commercialisation: the

Australian Research Council would use its funding power to encourage these.

Encouragement was certainly a euphemism. Since recurrent funding had been

reallocated to competitive funding through the research council, to be distributed

partially on the basis of alignment to national priorities, funding functioned as a form

of regulation. The Australian Research Council could well afford to specify instances

where institutional autonomy should prevail, for their control of university-based

knowledge had rapidly become substantial.

Intellectual property took over the research policy agenda in 1993, when the Prime

Minister’s Science, Engineering and Innovation Council published The Role of

Intellectual Property in Innovation. This report pointed out that:

The world intellectual property market represents $600 billion of industrial products and

processes annually.56

It would have only taken this line to prompt action, which was undoubtedly its intent.

In the context it would have sounded like serious research world-wide was producing

items of sufficient value to consumers and industry to produce this vast trade. A

description of the cultural characteristics and influences of intellectual property from

the late 1990s suggests the type of products and processes at work in this

intellectual property market, however:

Our children sleep in Barney® sheets, eat off Aladdin placemats, drink liquids they know only

by brand name in plastic cups encircled by Disney characters (protected by copyright laws and

character merchandising agreements)…The accomplishment of this expropriation of surplus

signifying value if effected by intellectual property laws that restrict the right to reproduce these

publicly identifiable texts to those who are deemed to “own” them.57

Imagining a very different market system to this, one where shares of $600 billion

justly find their way into factories of science from who knows where (since children

would be unlikely to eat off science-labelled placemats), the report went on to

designate lack of intellectual property protection as the reason for current lack of

income. The report said “worthwhile participation in this market will often be

determined by whether or not there is enforceable intellectual property protection”.

Such protection was likened to a fence:

56 (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview," 9. 57 Rosemary J Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law, ed. Stanley Fish and Fredric Jameson, Post-Contemporary Interventions (Durham and London: Duke University Press, 1998). 53

15

Laws for the protection of intellectual property…provide a protective barrier against third parties

who seek to appropriate the work of the innovator and take a free ride on that work. Without

this barrier innovation is like a crop in an unfenced field, free to be grazed by competitors who

have made no contribution to its cultivation.58

This passage – written for the ‘legal perspectives’ part of the report59 – shows the

new way the Prime Minister’s Council was thinking about university-based

knowledge. The academic researcher, for one, was now an “innovator”, applying new

knowledge to useful product development. The results of their labour were thus

inherently commercial. The report’s readers were to understand this, because other

people (“third parties”) were “competitors”. What positioned them as competitors was

their role in relation to the production of knowledge: they “made no contribution to its

cultivation”. This reconfigured the roles of the public, the national economy and any

other “third parties” from their position as beneficiaries of the new knowledge

universities produced to being knowledge consumers. Leaving knowledge “unfenced”

gave those consumers a “free ride”, which in this configuration of university-based

knowledge, was unfair to knowledge producers. This language shows that the

primary concern of the legal perspective in guiding intellectual property policy

development was commercial. This is probably because the framework in which

intellectual property exists is a commercial one.60

What is important about the commercial, competitive and commodified nature of

knowledge when configured by the Prime Minister’s Council as intellectual property,

is the relationship of knowledge to the nation and the economy. Commodified

knowledge is not necessarily the same as knowledge that enhances the national

economy, even if both value money over other types of good. The “third party” that

the report described as having not contributed to the cultivation of research’s “crop”

may well be the public. The free and unfettered entry of knowledge to the public in

many instances will contribute to economic growth – or some other public good – via,

for example, more efficient practices. The “free riders” on knowledge are often

needed to ensure innovation has its desired outcome. Positioning research outcomes

as a commodity to be traded competitively could delay or limit the benefits of

research. A competitive environment where knowledge was a commodity – as the

Prime Minister’s Council clearly described innovation protected as intellectual

58 (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview," 7. 59 Prime Minister's Science and Engineering Council (PMSEC), "The Role of Intellectual Property in Innovation: Perspectives," ed. Department of Prime Minister and Cabinet Office of the Chief Scientist (Canberra: Australian Government Publishing Service, 1993). “Legal Perspectives” pp. 59-85 60 Corynne McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property (Cambridge Massachusetts: Harvard University Press, 2001). page

16

property – would be concerned first for the financial benefit owed to the knowledge

producer rather than the benefit (which may be economic) of the knowledge itself.

This made the language of commodification somewhat contradictory to the economic

goals of the Commonwealth for higher education in the late 1980s and 1990s. Busily

trying to encourage the universities to make their own money on the one hand, they

sought in the same action to impede the flow of the knowledge they hoped would

grow the economy. In order to reimburse the public a little, the public would be

deprived of research that might enhance its social and economic well-being. The

exception to this contradiction was in patented invention, where protection was

normally the best way of realising the benefits new knowledge. But universities had

long recognised this, as the Wollongong patent policy explained so clearly, and there

would have been no need for widespread policy change had a preoccupation with

invention only been the case. Government and, increasingly, universities themselves,

were concerned to expand the income derived from the production of knowledge and

thus needed to expand their policies to encompass intellectual property in its widest

sense.

Having received the Prime Minister’s Council report in 1993, the new education

Minister, Simon Crean, asked The Australian Research and Higher Education

Councils to devise ways of raising awareness about intellectual property – in other

words, ways of encouraging universities to exploit more of it.61 This request led to the

1995 document, Maximising the Benefits: Joint ARC/HEC Advice on Intellectual

Property that the Royal Melbourne Institute of Technology intellectual property

committee was so cautious about. Their caution was framed by the Australian Vice

Chancellors’ Committee discussion paper from 1993 and it is clear from the minutes

that the committee considered the Vice-Chancellors to be a more trustworthy source

of guidance than the potentially self-interested Commonwealth. This makes sense,

since the Australian Vice Chancellors’ Committee was the universities’ own body.

The only surprising aspect of this apparent opposition between government advice

and the recommendations of the Australian Vice-Chancellors, is that both seem to

have been authored by the same person. The Vice-Chancellors’ Committee 1993

Discussion Paper was signed by the Committee’s president, Robert HT Smith,

former head of the National Board of Employment, Education and Training and

Purple Circle author of the 1989 Review of Higher Education Policy.

61 National Board of Employment, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." page

17

Indeed, as might be expected under Smith, the Australian Vice-Chancellor’s

Committee discussion paper reflected government sentiments. Several pages are

devoted to the rationale for universities to be concerned with the protection of

intellectual property and a theme, with some variations, was that it was in the

interests of institutions to ensure that:

Financial return is obtained from activities which have potential for commercial exploitation in

order to lessen the contribution from public funds62

Through the judicious protection of intellectual property, universities were

admonished to seek an “appropriate return for the use of facilities”, to provide

incentives for staff to commercialise research (including commercialisation as

performance criteria) all of which would somehow increase institutional accountability

for the use of public funds, encourage the furtherance of “knowledge for its own

sake” and foster esprit de corps in the institution.63 None of this would be possible,

the discussion paper warned, without institutional ownership, because ownership

was the determinant of control:

Ownership enables an institution to exercise control over decision-making relevant to the

subject matter.64

This control, traditionally in the hands of academic experts under traditions of

academic freedom, could have been something that institutional leaders did not feel

entirely comfortable assuming. For these doubters, the discussion paper offered a

threat:

It is possible for an institution to be faced with considerable liabilities in respect of intellectual

property with which it is associated but over which it has not exercised a great deal of control. It

may not be easy to disassociate itself if problems arise and it is suggested that it is better to

exercise prudent control from the outset.65

The Australian Vice Chancellors’ Committee discussion paper, however, was not

primarily a polemical piece of work seeking to persuade universities to protect

knowledge from competitors. Its contrast to government documents is that it gave

pragmatic advice to institutions so they may ensure institutional ownership in as

many cases as possible. This was not easy, according to the document, because the

legal status quo (from the theory attaching property to labour, reaping to sowing) is

62 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 9. 63 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 7-8. 64 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 29. 65 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 29.

18

that knowledge “naturally” belongs to the person who produced it.66 The claims of an

employer under commercial conditions could be somewhat difficult to make and this

was even more the case in universities, since academic staff were not, as a matter of

tradition, quite like normal employees. Academic work and its relationship to

knowledge was not traditionally a matter of discovery in exchange for salary in the

same way that commercial research and development had been. The traditions of

membership in a community of scholars and of collegial forms of governance, then,

made it all the more difficult for universities to claim ownership as an employer over

the intellectual property produced by its members. The Australian Vice Chancellors,

therefore, offered a variety of possibilities for university intellectual property policies,

to cover both corporate and collegial models of governance. To further support

institutions, the discussion paper also provided a range of arguments for why the

intellectual property produced by academic staff should belong to the university.

These arguments did not form one coherent thesis, but were designed for institutions

to cherry-pick as needed, saying:

Whatever factors are used, they should be articulated as a foundation for policy and thought

through to enable them to be used effectively in any given situation.67

The arguments given included that the institution deserved a return, if it was

possible, on the use of its equipment; that building on the base of pre-existing

intellectual property gave the university some right to commercial benefits; and the

difficulty of extricating individual authorship and invention from the environment in

which they were conducted.68 These were added to the imperatives to ensure

someone else did not profit for free from the university’s work, and that society

received a return on public investment. Furthermore, just as the Commonwealth

claimed that university research priorities should align to national priorities, so,

according to the Australian Vice-Chancellors, should individual academic research

align to institutional objectives:

Control is exercised over the development of intellectual property to ensure that programs of

research and teaching comply with institutional policies and objectives.69

The ownership of intellectual property was not only a question of commercial gain,

but was also an attempt to resolve the question of the control of the production of

knowledge.

66 Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law. 219 67 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 10. 68 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 9-10. 69 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 9.

19

The Australian Research Council was explicit in their belief that research priorities

should enhance the income derived from university knowledge production. The title,

Maximising the Benefits, of the 1995 joint Australian Research and Higher Education

Councils advice to the National Board of Employment, Education and Training, tells

of this priority. By this, they meant setting research priorities and developing a policy

framework that would maximise the financial benefits of research through

commercialisation, which – by lessening the taxpayer’s burden, they assumed would

maximise knowledge’s social benefits too.70 50% of university-based research, the

report said, was classified as either ‘strategic’ or ‘applied’ “and therefore could

potentially lead to commercial outcomes.71 This belief that strategic and applied

research was all potentially commercialisable shows how extensively government

thought intellectual property policy development might augment universities’ income.

The report recommended raising awareness of intellectual property and its

management throughout institutions as a part of promoting the maximisation project

and to encourage collaboration with industry.72 It also recommended that a condition

for the award of Australian Research Council grants be that institutions have an

intellectual property policy that has

…as one of their aims the maximisation to Australia of the benefits arising from research.73

The perceived need for education of academic staff in intellectual property arose

from the reports’ advocacy of what they called the Cambridge model of intellectual

property management. The appeal of this model, according to the report, was that

the management of intellectual property was linked to individual staff entrepreneurial

behaviour, which was rewarded as a part of their academic work. It did this by

opening up the scope of what academic work was considered to be, removing

restrictions on outside, commercial work. The integrity of traditional academic work

was maintained, claimed the report, by the pressure of expectations from students

and colleagues rather than by workload regulation. Probably the element that had the

Royal Melbourne Institute of Technology so concerned, however, was that this

Cambridge model did not automatically invest the ownership of intellectual property

in the institution, for it was this that was contrary to the discussion promoted by the

Australian Vice Chancellors. Instead, in the Cambridge model, ownership was signed

over voluntarily, if at all, to the university’s commercial arm by individual academics.

70 Australian Research Council and Higher Education Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property," ed. Education and Training National Board of Employment (Canberra: Government Publishing Service, 1995). page 71 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property," 2. 72 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property.", 21, 23 73 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." 11

20

The Cambridge model connected commercial activities to academic freedom – that

is, academics were free to develop their knowledge along commercial as well as

non-commercial lines as they saw fit. That university encouraged commercialisation,

not by regulation, but by openness, allowing commercialisation’s inherent incentive

act as the driver for researcher behaviour.74 The alignment of this model to the neo-

liberal faith is obvious. For university intellectual property committees, however, the

potential for decentralised (lack of) control over this new theoretically valuable

knowledge lode was threatening. Moreover trust, between government and

universities, was at a low point, and the likelihood of institutions electing to follow the

advice of the Australian Vice Chancellors was especially high.

What did the IP Policies have in them and why? Consistent with the Australian Vice-Chancellors’ discussion paper, each of the

sample universities claimed all of the intellectual property produced by academic

staff in the course of their duties as employees of the university (see Table below).

The wording of this was quite variable. It could refer to intellectual property that arose

(as if by accident) during their work, or to intellectual property that was produced by

originators using a language of agency and intent. The 1986 policy of the Australian

National University was most cautious about this issue, specifying:

The whole of the professional time of an academic staff member is required to be devoted to

the performance of the duties of office of that staff member. Thus, any intellectual property

developed by staff members in the performance of the duties of their office belongs to the

university.75

Academic staff were thus expected to have no intellectual or inventive life beyond

their academic duties. This clause would suggest the university could claim

ownership over patent rights to an invention made in the course of an academic’s

hobby, even if unrelated to their academic field, since all professional time (which

income, the policy implies, indicates) belonged to the university. General staff were

different:

In contrast to academic staff members, general staff members have fixed times of working:

however, any intellectual property developed by them in the course of their employment, or

using resources and facilities provided by the University, also belongs to the University.76

Other universities did not make this distinction, generally preferring to claim any

property arising from work in the university, whether or not staff were specifically

employed to produce it. Macquarie University claimed intellectual property produced

74 Council, "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." 7-10 75 University, "Intellectual Property Policy." 76 University, "Intellectual Property Policy."

21

by academic and non-academic staff equally but most policies failed to make any

distinction between staff types at all, clearly considering their employment sufficient

reason for claiming all of the intellectual property they produced.

Half of the sample policies claimed all intellectual property produced by students, the

remainder offering students the option to assign their intellectual property if needed

(for example, if the student wished the university to assist in commercialisation).

Macquarie University, despite documented advice that it may infringe their legal

rights77, claimed student intellectual property as a condition of enrolment – a clause

suggested in the Australian Vice-Chancellors’ discussion paper.78 Those universities

that did not claim student-produced intellectual property made special provision to

negotiate ownership with students in particular instances, such as when students

were working as a part of a team including staff and, from the team,

commercialisable research was likely to emerge.79

Two-thirds of the sample policies required staff to report commercialisable research

to a central body – normally an intellectual property committee or the Pro-Vice-

Chancellor (Research). One policy did not specify whether staff were compelled to

report such research but another – The Royal Melbourne Institute of Technology –

specifically stated that staff were under no obligation to report commercialisable

research unless they wished to pursue commercial possibilities. That policy also

gave financial incentives to report such research, but the committee considered it to

be a matter of academic freedom that staff be granted the ability to choose. 80 The

fact that such a choice contravened the requirements of the Australian Research

Council’s grants may have reflected the Royal Melbourne Institute of Technology

intellectual property committee’s generally mutinous attitude towards the

Commonwealth government. The University of New England, while claiming all

intellectual property and requiring staff to report and assist in the commercialisation

of research, narrowed their definition of the intellectual property they claimed to quite

narrow terms.81 This made it paradoxically possible for staff to own some intellectual

77 Macquarie-University, "Extract from Council Minutes of the Meeting Held on Friday 23 August 1991," in File P37 Intellectual Property (Sydney: Macquarie University Archives, 1991). 78 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper." page 79 University-of-New-England, "Intellectual Property Policy." 80 Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy." 81 Generally this intellectual property (unique among the policies) is defined as research outputs that the university had substantial (and special) contribution to, either by internal grants or significant additional resources. University-of-New-England, "Intellectual Property Policy." 23. This contrasts markedly with the claims of the later 2007 policy, which is quite expansive. University-of-New-England, "Knowledge Assets and Intellectual Property Policy Http://Www.Une.Edu.Au/Policies/Pdf/Knowledgeassets&Intellectualproperty.Pdf [Retrieved 28 July 2009]," (Armidale: University of New England, 2007).

22

property. To accommodate this, the policy made space for both university and staff to

use intellectual property owned by the other without cost or application.82

University Policy

Year

Staff Required

to Report

Student Visitor Collaborator

or Grant body

Australian National

University

1986 University claimed

all IP83

Yes. University

claimed.

University

claimed.

Not specified

Adelaide University 1989 University claimed

all IP84

Unclear

from the

policy85

Not

claimed.

Claimed

substantial

ownership86

1993 policy on

research

contracts

shows

University

would

negotiate87

Macquarie

University

1990 University claimed

all IP but waived

traditional

scholarship88

Yes89 University

claimed as

condition

enrolment90

Not

specified

University

claimed all91

University of New

England

1995 University claimed

some IP92

Yes93 Not

claimed94

Not

specified

Not specified

RMIT 1995 University claimed

all IP95

No, but

financial

incentives

in place

Not

claimed.96

Not

specified

Not specified

UWA 1996 University claimed Yes, but.98 University Not Not specified101

82 University-of-New-England, "Intellectual Property Policy." 23 83 The Australian National University did not claim traditional scholarly output. 84 University of Adelaide claimed all IP produced within the university and a proportion of staff IP produced when on study leave or secondment at another institution. It did not claim IP of part-time staff for work done outside of university duties. (Adelaide 1989) and not less than one half of IP of honorary or unpaid staff, all surviving the termination of employment 85 The University of Adelaide 1989 policy pointed out that 86 University of Adelaide claimed one quarter of IP of visitors from research conducted while visiting Adelaide on leave from another university (Adelaide 1989) 87 Adelaide University amended, in 1993, its policy on Outside research grants, contracts and consultancies, which included items that other universities included in their IP policy. 88 Macquarie University normally waived all right to traditional scholarly output (MQ 1990) 89 Macquarie policy requires immediate reporting for potentially patentable research (MQ 1990) 90 Macquarie university made student assignment of IP rights to the university a condition of their enrolment (MQ 1990) In 1991 it was pointed out that this “may be at variance with what is considered to be the individual’s rights at law” (MQ Minutes Council Meeting 23 August 1991). However, the policy remained until a much later policy was approved (post-2000) 91 Macquarie university policy was to not normally sign research contracts unless all IP assigned to it. (MQ 1990) 92 The University of New England claimed staff IP when it had made a specific financial or resource contribution; if it was patented; if it was course material; if software etc. All other IP belonged to the originator who was required to grant the university a royalty-free licence to use it. (UNE 1995) 93 (UNE 1995) Required to report patentable or comercialisable research 94 (UNE) Except in working with “a particular” supervisor who may require the student to assign IP. 95 Royal Melbourne Institute of Technology defined IP more broadly than other universities, as “any confidential information or any rights resulting from intellectual activity”. RMIT also specified that it would own copyright only when net income from copyright exceeds $15,000 in any calendar year. (RMIT 1995) 96 The RMIT 1995 policy did make provision for owning work using considerable quantities of the university’s pre-exiting IP or working in collaboration with staff.

23

all IP97 claimed99 specified100

We can see, then, that the policies were concerned with the ownership of intellectual

property emerging from labour conducted within universities. These policies did not

have any of the characteristics we would expect if they were a result, as Monotti and

Ricketson claimed, of more complex relationships with collaborators and funding

bodies.102 Of the sample intellectual property policies, only Macquarie University

specified the ownership of intellectual property derived from collaborative or

externally funded research.103 The contents of the policies suggest that if universities

feared the claims of external bodies over intellectual property produced by staff, that

fear was most likely directed at the Commonwealth. Since the Australian Research

Council, as we have seen, had given some indications that it might be interested in

exploiting university research for its own financial gain this was probably not

surprising. The best defence for the universities was to ensure that the efforts of its

staff belonged to the institution, not the public. In order to underline this, universities

emphasised the position of academics as employees – as in any other knowledge

industry – rather than as members, as in the traditional collegial sense.

All of the sample policies relied on the legal obligation of academic staff as

employees for the ownership of intellectual property. The difficulty with this approach

was that it was essential that the intellectual property produced must be a result of

work that as firmly within the duties of the employee for the employer to own it.104

This difficulty would have been avoided had universities followed the “Cambridge

model” that the Australian Research Council suggested, since although they would

have had no necessary obligation to assign intellectual property rights to the

97 The University of Western Australia did not claim ownership over copyright, except for computer programs. This is the equivalent of not claiming traditional scholarly output. (UWA v Gray, 2008, pp46-47). The UWA v Gray judgment found in 2008 that the University of Western Australia had no right to claim all IP of a staff member and that this (1996) policy was invalid in that respect. 98 The UWA v Gray case found that while there had been a requirement to report there had not been a functioning mechanism to do so 99 The segments of the 1996 policy reproduced in the UWA v Gray judgement suggest the policy did not differentiate between student and staff originators (see pp. 45-48) 100 Not specified in the segments replicated in UWA v Gray. Specification in original policy unknown. 101 Not specified in the segments replicated in UWA v Gray. Specification in original policy unknown. 102 Monotti and Ricketson, Universities and Intellectual Property: Ownership and Exploitation. page 103 This does not need to imply that Macquarie was uniquely positioned to care about this nor were they likely to be the only university to be concerned. The Australian Vice-Chancellors published guidelines on the acceptance of research contracts, which, according to the Macquarie file, informed their intellectual property policy. The University of Adelaide also discussed the ownership of intellectual property derived from these conditions, but in a different policy (also with much more flexibility than Macquarie). Australian-Vice-Chancellor's-Committee, "Conditions of Acceptance of Research Contracts (Draft)," in File P37 Intellectual Property (Sydney: Macquarie University Archives, 1989). 104 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper." Page See also French, "University of Western Australia v Gray (No 20) [2008] ". page

24

university, staff would have had substantial incentives to do so. However, universities

obviously preferred the certainty attached to employee obligation since the policies

uniformly rely on this mechanism as the basis for their claim. The 1993 Australian

Vice Chancellors’ discussion paper pointed to the potential difficulty in claiming the

intellectual property of staff of this basis:

It is not always clear whether the activity which produces the property is one which comes

within the terms of the contract of employment. It is difficult to determine whether the property

is produced in the institutional employer’s time or in the staff member’s time.105

This explains why the Australian National University was so careful to claim

everything an academic staff member ever did and indeed most policies attempt to

be similarly expansive. The diversity of activities in university research made it very

difficult to specifically define the type of duty that might lead to the production of

intellectual property. Furthermore, despite the best efforts of the Prime Minister’s

Science and Engineering Council, even potentially commercialisable research

continued to be unpredictable, making it just as impossible to predict in a contract of

employment. So, universities chose to develop expansive intellectual property

policies, claiming all intellectual property of all staff. Traditional scholarly outputs

(publications) were normally excluded either from ownership by the institution or the

institution stated that it would not assert its rights in relation to copyright of such

work.106 However, the logic in many university intellectual property policies was

derived from an apparent need to firmly assert ownership over all intellectual

property so that any negotiation functions from a position of strength:

The ownership of intellectual property created in the course of employment by the University,

and hence the sole right to use such intellectual property, belongs to the university.107

The approach of claiming all intellectual property and returning it (or the income from

it) to staff as a matter of generosity caused a great deal of debate in the United

States.108 The claims of the American Association of University Professors were

based on what McSherry calls the “academic exception”, which derives from the

contrast between typical work-for-hire under close managerial direction, explicitly for

an employer and academic work that is not under such direct guidance:

The faculty member rather than the institution determines the subject matter, the intellectual

approach and direction, and the conclusions. This is the very essence of academic freedom.109

105 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper," 10. 106 policies 107 University, "Intellectual Property Policy." p6 108 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. page 109 American Association of University Professors (1999), cited in McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property.

25

The claim over intellectual property in all of the sample policies from 1986-1996

confirm the master-servant relationship – the academic as employee – that had

caused so much controversy in the Orr case in the 1950s.110 In so doing, it also

reduced the differentiation of academic work from other types of labour.

Corynne McSherry discusses the collision of values when the logic of the market

economy (which informs intellectual property law) is used to regulate universities,

traditionally characterised by gift economy values. The gift economy, she claims, was

based on the guild-like structure of academia.111 In this guild structure, academic

staff were members of a community of scholars, which, as Eric Ashby showed, was a

privilege that carried responsibility to the university body, resembling a monastic

community.112 Universities obviously positioned academic staff as employees in

order to claim legal ownership of intellectual property in a similar way to commercial

research and development organizations.

It is worth briefly considering the character of this gift economy, which McSherry

shows is not as much utopian community as economic system, but with a non-

market focus. Marcel Mauss’ work on the gift consistently demonstrated the way gifts

function in an alternative economy.113 Gifts, imbued with the characteristics of the

giver, are an obligation in a complex social system of exchange.114 Publication, for

instance, is an obligatory gift given by the knower, and the system of peer review is

also evidence of gift-economy structures. McSherry shows the way authorship credit

in multi-author works, is informed by gift traditions, awarding authorship to

supervising staff who may not in fact contribute to a work and denying it to non-

academic laboratory staff who may. Authorship credit shows the gift economy’s

capacity to reproduce hierarchical standing – a standing that is also based on

ownership. Authorship, as legal theorists point out (among other things115), functions

110 R.H. Thorp and K. Buckley, "Report on a Visit to the Tasmanian Association," Vestes 1, no. 5 (1958). 111 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 70-71 112 Eric Ashby, Masters and Scholars: Reflections of the Rights and Responsibilities of Students, The Whidden Lectures for 1970 (London: Oxford University Press, 1970). Also Jaroslav Pelikan, The Idea of the University: A Reexamination (New Haven: Yale University Press, 1992). pages 113 Marcel Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies, trans. Ian Cunnison (London: Cohen & West, 1954). 114 Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies. Page McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 75 115 Foucault argued that authorship was a mechanism for identifying and punishing the ‘author’ of transgressive discourse. Michel Foucault, "What Is an Author," in Language, Counter-Memory, Practice : Selected Essays and Interviews, ed. Donald F. Bouchard (Ithaca, New York: Cornell University Press, 1977). Henry C Mitchell dedicated a chapter to “The Author Metaphor”, detailing Romantic, Foucauldian , Labour-theory and other ways of frames authorship Henry C Mitchell, The Intellectual Commons, ed. James P Sterba, Lexington Studies in Social, Politicl and Legal Philosophy (Lanham: Lexington Books, 2005).

26

as a declaration of the ownership of knowledge.116 Lack of authorship credit,

McSherry continues, positions an employee as worker, rather than owner.117 For

example, the University of New England 1995 Intellectual Property policy says that

the university will acknowledge authorship of any of its intellectual property that it

publishes, an undertaking that certainly does not apply to administrative documents –

the author of that policy, for in stance, is not acknowledged.118 However, while not as

utopian as perhaps it sounds, a gift economy is always internal in focus, its

obligations directed to the growth of the community – and in the case of universities,

the growth of knowledge. By contrast, trending the university towards market

economy values directed its focus outwardly, to commodity production for external

consumption.119 Intellectual property, based on a market system, could not easily so-

exist with the gift culture that imbued university norms, claims McSherry.120 This shift

in focus, of course, was the conscious wish of government policy-makers in the late

1980s and early 1990s – a wish that failed to consider the consequences to

knowledge of dismantling academia’s gift-economy structure.

The act of implementing these intellectual property policies then, also further

dismantled any differentiation of the university form from commercial organizations.

In so doing, they removed incentives for academic staff to contribute commercial

good – to gift their knowledge to the university community – since intellectual

property policies removed the privileges attached to membership in the community of

scholars. It repositioned academic staff to an adversarial relationship to the

institution, with legal obligations rather than opportunities for gift-giving in a

community structure. The regulated obligation to report commercialisable research

also shifted the choice about research outputs away from the researcher, as already

discussed. When combined with national research priorities and a reallocation of

public funds from recurrent to competitive funding through the Australian Research

Council, it would appear to be a massive structural shift that would remove academic

freedom and transfer the control of research outcomes (including the decision to

transform knowledge into intellectual property) from academic staff to the

Commonwealth. Far from protecting academic freedom, however, universities and

their Vice-Chancellors, fearing Commonwealth incursions into institutional income

sources tried to use their intellectual property policies to transfer the control of

116 Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Massachusetts: Harvard University Press, 1993). 133 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 82-87 117 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 83 118 University-of-New-England, "Intellectual Property Policy." 24 119 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 75 120 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 70-72

27

research outcomes to the institution as employer. While this might have protected

some of the financial interests of the universities, academic freedom was only

protected by the impossibility of enforcing the obligation to report.

The acquisition of the control of research outcomes via university intellectual property

policies was offset by granting a proportion of the income from any commercialisation

activities to the researcher, even though as property it belonged to the university.

Research, however, was not the only part of the higher education system then being

commodified. Full-fee postgraduate coursework was permitted from 1987 and in the

discursive environment of the late 1980s and early 1990s was seen in the sector as

commercial activity (rather than, say, a non-public means of covering teaching

costs).121 This deliberate commodification of some aspects of university educational

“products” meant that, at The Royal Melbourne Institute of Technology some staff felt

they should be entitled to the same percentage of personal financial benefit (one

third of net profits) from course material as from commercialised research. Since fee

income simply shifted the cost of running a university from government to student

“consumers”, the allocation of 30% of this income to the staff who prepared the

course material in addition to their salaries would rapidly deplete a university’s

financial foundation. Nevertheless, the logic was sound, since the mission to educate

– like the trade in intellectual property – was increasingly described as a commercial

transaction, which intellectual property policies had committed to sharing with

originators:

My personal belief is that the only basis for arguing that a developer of courseware should

begin the negotiation on economic benefit expecting less than one third of net profits would be

that more material (as opposed to intellectual) input is made by the university to courseware

than to applied research and technology transfer. My experience is that the reverse is

common.122

Corynne McSherry dedicates an entire chapter to the ownership of course material,

even though course material would normally be created as a part of an academic’s

duties of employment and would seem to belong to the university. The difficulty in the

Unites States seems to have arisen from the nature of the classroom. Unlike

distance education courseware123, on-campus course material can be more

ephemeral, raising questions about whether lectures are in the public domain or the

121 Craig McInnis, Richard James, and Alison Morris, "The Masters Degree by Coursework: Growth, Diversity and Quality Assurance," ed. Education and Training Department of Employment (Australian Government Publishing Service, 1995). page 122 A Henderson-Sellers, "Intellectual Property Policy - Comments by a Henderson-Sellers," in Intellectual Property File (Melbourne: RMIT Archives, 1996). 2 123 This was one of the reasons the University of New England gave for producing their intellectual property policy. University-of-New-England, "Intellectual Property Policy." 21

28

possession of the lecturer – questions generally only raised when students started to

sell their lecture notes.124

However, while teaching and research are clear academic duties, the production of

tradable intellectual property is less clearly a responsibility of a university

employee125 and intellectual property law would normally incline the natural

ownership to the originator – a point acknowledged by the Australian Vice-

Chancellors.126 Sharing the profits of intellectual property might even be an

admission of unfair acquisition of staff property, functioning as a disincentive for

academic staff to object to institutional claims over the intellectual property they

produce. The Royal Melbourne Institute of Technology policy highlights this

possibility when, on the first page it claimed all intellectual property produced by staff

in the course of their duties (Section 2a) and then went on to say:

Notwithstanding subsection (a) the University may require that member of staff or student

formally assign to the University his or her interest to any intellectual property.127

Unsure, perhaps that ownership via employment would be sufficient, the university

may require staff assign rights individually, to be safe. However, staff were unlikely to

object that the university or a commercial arm of it would carry the costs and the risks

of initially developing and protecting the research that may or may not result in some

personal profit. Policies including the sharing of net profits enticed academics to

overlook any loss of academic freedom or control of knowledge in exchange for

commercial assistance and a share of the profits.

Commercialisable intellectual property in its narrow sense turned out to be a very

small proportion of any university’s research output, so control of the decision to

commercialise invaded only slightly the tradition of academic freedom. However, in

the late 1980s and early to mid 1990s when these policies were being considered,

the expectation was that university research had the potential to be converted into a

vast and lucrative body of products. The failure of universities to date to support

themselves on the knowledge products their employees created, at that time

suggested a structural and cultural flaw in university research management. The

Prime Minister’s advisory committee said:

The fact that such a miniscule part of the activities of universities involves IP protection, in

contrast to the very large level of public funding of universities and university research,

indicates something is fundamentally wrong.128

124 McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property. 101-143 125 French, "University of Western Australia v Gray (No 20) [2008] ". page 126 Australian-Vice-Chancellor's-Committee, "Ownership of Intellectual Property in Universities: A Discussion Paper." page 127 Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy."

29

This type of rhetoric, supported by figures such as $600 Billion of annual trade in

intellectual property globally, changed the way institutions and government saw the

knowledge held and produced. This rhetorical imperative was combined with the

sense emanating from neo-liberal advocates in Canberra and from the pages of the

Higher Education Supplement that the evidence for the value of knowledge was that

someone would pay for it. As a result, universities started to talk about knowledge as

property, giving intellectual property a meaning far broader than its narrow legal

usage. The university intellectual property policies thus attempt to regulate

knowledge prior to its protection as intellectual property, also referring to that

research as intellectual property. For example, rather than specifying research with

potential for commercialisation, the University of Adelaide policy said:

It is essential that intellectual property with potential for commercial development should be

appropriately protected before it is published.

We know what the University of Adelaide meant here, but as established at the start

of this chapter, intellectual property refers to the rights attached to knowledge, not

the underlying substance. But universities’ hopes in commercialisation were based

on a fantasy about the financial value of that which sat at its core: knowledge.

Universities were reconfiguring the idea of knowledge as a market system, a trade in

a vastly expanded discursive concept of intellectual property. The Australian National

University’s 2008 website, which gives some background to intellectual property,

captures this sentiment:

Intellectual property lies at the centre of all basic, strategic and applied research conducted

across Colleges and disciplines at the ANU. Put simply, IP is the ANU’s core business: it’s

what we produce.129

Intellectual property was beginning to sound like the business of the university.

If universities were already conducting large amounts of research that presumably

could be commodified, traded and reap financial rewards for all, then it was essential

that universities own more than legally protected intellectual property. Moreover, it

was very difficult to predict which research might have commercialisable outcomes,

so it was far safer for universities to claim ownership over everything even – or

perhaps especially – before it existed. Universities thus used their intellectual

property policies to claim ownership, not just of property, but also of knowledge.

128 (PMSEC), "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview." pge 129 Australian National University, Research Office: Intellectual Property (Australian National University, 2008 [cited 22 July 2009 2009]); available from http://www.anu.edu.au/commercialisation/intellectual-property.php.

30

Arena and Carreras’ 2008 book The Business of Intellectual Property, like many

university intellectual property policies, looks beyond the boundaries of the set of

rights attached to intellectual property:

Knowledge resides in the human brain, and unlike plant and equipment or other physical

means of production, knowledge is easily replicated and transferred to others. With knowledge

generally equating to value, not only does it matter who owns what is in a person’s head but

also harvesting that knowledge and controlling its dissemination is critical in a competitive

environment.130

Since universities and government saw knowledge as so valuable (in a financial, not

social, sense) then owning the substance even on the inside of an academic’s mind

might also be important. We have seen that government was convinced that

universities could enter a $600 billion global marketplace on the basis of the

substance that sat at the core of the university. This, they felt, might alleviate some of

the public financial burden attached to higher education. Universities, struggling

financially after a decade of systematic under-funding, were also looking to harness

this substance for financial gain. The belief in knowledge for profit was contagious.

The preamble to Macquarie University’s research management plan said:

Because of the increasing importance of intellectual ownership and enjoyment in the higher

education sector, the University is now reviewing its policies in this area overall.131

“Enjoyment” seems to be an odd word to use – I suspect it was Macquarie University

being a little coy about the term profit, which as we have seen was long construed as

the opposite of university endeavour. Nevertheless, widespread (if anecdotal)

“enjoyment” of the profits of knowledge in the sector meant that Macquarie felt it

needed to stake a claim too. All were keen to protect intellectual property from

someone: the government wanted it protected from those who might profit from it,

universities wanted it protected from the government. In addition, universities felt that

they needed to protect this substance from exploitation by their own staff.

Universities, using their intellectual property policies, attempted to claim knowledge

from their knowers: harvesting what was in their heads.

Perhaps this is why, as discussed at the start of this chapter, the language of

intellectual property slipped so easily from discussions of rights to expansive uses.

Wollongong University’s policy alone of the sample consistently specified ownership

of narrow rights. That policy at one point described staff identification of “what

appears to be intellectual property”, but it did so to provide a procedure for reporting,

130 Arena and Carreras, The Business of Intellectual Property. 29 131 Macquarie-University, "Research Management Plan (Draft)," in File P37 Intellectual Property (Sydney: Macquarie University Archive, c1989/1990 (undated)).

31

not to make a claim to intellectual properties’ potential.132 The remainder of the

sample intellectual property policies each start with the narrow, legal definition but in

various ways reveal more expansive intent. The Australian National University, as we

have seen, claimed 100% of academic staffs’ professional time. The employer’s

claim over time, long recognised as a part of their claim over labour,133 in the case of

academic staff also attempted to function as a claim over knowledge. Adelaide

University, as we saw, slipped linguistically from claiming intellectual property rights

to claiming the yet-to-be protected knowledge that underpinned it. The University of

New England, Macquarie University and Royal Melbourne Institute of Technology

policies did the same.134 Like the Australian National University’s claim over time,

Macquarie University claimed ownership of labour, describing “work owned by the

university”.135 In addition, both Macquarie and the University of New England claimed

any intellectual property that arose from using university-owned resources, which

included background knowledge.136 The University of New England’s current policy

(approved in 2007) attempts to ensure this expansive claim by also asserting

ownership over what they call “knowledge assets” which is “meant to encompass any

result of intellectual effort…the term is meant to express the breadth of knowledge

which the policy is aiming to cover”.137

This was how they did it, though it was probably not premeditated. By configuring

knowledge as intellectual property, the system could imagine a financially viable

trade emerging from the ordinary business of the university. Universities, in this

“consensual vision”, as Elizabeth Garney described the shared intellectual property

fantasy of the entrepreneurial university, would continue to teach and conduct

132 Wollongong, "Intellectual Property Policy." 3: “In all cases where a member of staff has created what appears to be intellectual property, therefore, the staff member must report the invention as set out in Section 4” 133 EP Thompson, "Time, Work-Discipline and Industrial Capitalism," Past and Present 38 (1967). 134 Macquarie-University, "Intellectual Property Policy." 2: “where a university member or members believe they have developed…an intellectual property right”. Royal-Melbourne-Institute-of-Technology, "Intellectual Property Policy." 2: “Where preliminary assessment indicates that the intellectual property…should be protected…” University-of-New-England, "Intellectual Property Policy." 24: “An originator must not apply for any form of protection for…intellectual property which is the property of the university” and 25: “Where the university owns intellectual property which may be the subject of a patent application…” 135 Macquarie-University, "Intellectual Property Policy." 3 136 Macquarie-University, "Intellectual Property Policy." 2: “…using the resources or facilities of the University material to the development of those rights” University-of-New-England, "Intellectual Property Policy." The University of New England’s policy was a little contradictory: it claims all IP from employed staff, but restricts the definition of IP to quite narrow terms. This would have excluded quite a bit of academics’ research output, making them its owner. As a result, the policy reads “Where the originator is the owner of intellectual property created in the course of employment…”, despite the first clause claiming all of it. The definition does include “projects which have incorporated intellectual property belonging to the university”. 137 University-of-New-England, "Knowledge Assets and Intellectual Property Policy Http://Www.Une.Edu.Au/Policies/Pdf/Knowledgeassets&Intellectualproperty.Pdf [Retrieved 28 July 2009]."

32

research – only those activities would become commodities in a vast knowledge

economy.138 This knowledge economy was not the same global economy where

knowledge gave a competitive edge and thus became the differentiating value in the

system139 but was rather closer to Lyotard’s description of a commodified university

system, where knowledge itself flows like money.140 Intellectual property policies and

the systemic framework in which they were formulated were based on a conviction

that the value of knowledge could be exchanged, like currency, into its financial

value. However, owning intellectual property was like owning knowledge’s shadow.

For universities to attempt what they hoped, they needed to own more than legal,

temporary rights. They needed to own knowledge.

Conclusions: intellectual property and the idea of the university In the late 1980s and early 1990s the ‘consensual vision’ of intellectual property

development made the solutions to higher education’s most pressing problems seem

clear. There was a global $600 Billion market for knowledge. Knowledge was what

universities did, the substance that they ‘traded’ in. While acknowledging that

universities, by their nature, did a lot of ‘pure’ research, approximately half of it was

useful – strategic and applied – and therefore, surely, could plausibly be added to

this vast global knowledge market for a profit. If universities could be encouraged to

be more entrepreneurial and to consider their knowledge to be a type of intellectual

property, logic deemed that universities could be potentially funded from the

knowledge they produced. This would help the government by relieving the public of

some of its responsibility for funding higher education. And it would help universities,

which were grossly under-funded and seeking more diverse sources of income in an

attempt to regain autonomy from the ever-encroaching Commonwealth.

Of course, a $600 Billion intellectual property market was not suddenly likely to be

dominated by the types of (even strategic and applied) research outcomes that

universities were good at. The idea that anything close to 50% of university research

outcomes had commercial potential shows a clear misunderstanding of the market

for knowledge – commercialisation specialists suggest that a tiny percentage (0.03%)

of the new ideas generated within a university will ever successfully find their way to

138 Garnsey, "The Entrepreneurial University: The Idea and Its Critics." 229 139 Arena and Carreras, The Business of Intellectual Property. 27 140 Lyotard, The Postmodern Condition: A Report on Knowledge.

33

market.141 Nevertheless, the inevitable failure of these first two assumptions is offset

by the remarkable success of the rest of it.

Between 1989 and 1995, tiny pieces of policy and guidance were released to the

universities from the Commonwealth and the Australian Vice-Chancellors

Committee. Collectively, through these, the ability to determine research priorities

was subtly shifted from academic staff under traditions of academic freedom, to the

market, facilitated by competitive incentive schemes via the Australian Research

Council. The Commonwealth established incentives for universities to claim the

intellectual property produced by the staff within them and the tools to make it so

were provided by the Australian Vice-Chancellors Committee. Very often these

documents passed through the fingertips of the same two former Purple Circle

members, Robert HT Smith and Don Aitkin. Universities, fearing that the

Commonwealth was attempting to reclaim more of their financial resources,

scrambled to prepare intellectual policies that would maximise the income to each

institution from the new knowledge market.

As universities thus sought to enter the international knowledge market, the idea of

intellectual property was deployed to work beyond its legal capacity. Intellectual

property came to be another phrase for knowledge, new and entrepreneurial

terminology for the substance at the core of the university. For universities to harness

this substance, it required more than just a name change. It required universities to

finally be explicit about ownership. Intellectual property policies would certainly have

been the most appropriate mechanism to discuss ideas about ownership, but

universities could not afford to only own intellectual property. Thus, as much as

knowledge was reconfigured as intellectual property, so too was the language of

intellectual property expanded to encompass all intellectual activity conducted by all

types of staff in universities. The master-servant relationship in which academics

were paid to provide intellectual services to the university was extended to all of the

time and all of the products of their labour: attempting, even, to own the inside of

their minds. This changed the character of academic work, shifting the flow of

knowledge from a gift to market economy and placing academics in an adversarial,

rather than collegial, position in relation to the institution.142

With the control of research moved to the market, facilitated by government’s

national priorities, and knowledge now a market system, the idea of the university

141 Greg A. Stevens and James Burley, "3,000 Raw Ideas = 1 Commercial Success!," Research Technology Management 40, no. 3 (1997). 142 cf. McSherry, Who Owns Academic Work? Battling for Control of Intellectual Property, 102.

34

was also subtly, and yet absolutely, readjusted. The inward focus of the gift economy

was redirected to focus outwardly towards the market, directing effort, like any other

commercial organization, to the production of commodities. The exceptional position

that the idea of the university had held, directing its energies to the pursuit of

knowledge and guardianship of society’s intellectual integrity was unravelled in this

discursive act. In intellectual property, universities reduced the hallowed idea of the

university to just another element in the knowledge economy, barely distinct from

commercial organisations. Universities reconfigured the business of the university –

the free development and dissemination of knowledge – as a trade in intellectual

property.

35

Bibliography

Primary Sources

Anonymous. "Appointment of a Pro-Vice Chancellor (Research)." Macquarie University News, September 1987 No.197 1987, 4-5.

Macquarie-University. "Extract from Council Minutes of the Meeting Held on Friday 23 August 1991." In File P37 Intellectual Property. Sydney: Macquarie University Archives, 1991.

———. "Research Management Plan (Draft)." In File P37 Intellectual Property. Sydney: Macquarie University Archive, c1989/1990 (undated).

Rose, Mark. Authors and Owners: The Invention of Copyright. (Cambridge, Massachusetts: Harvard University Press, 1993).

(PMSEC), Prime Minister's Science and Engineering Council. "The Role of Intellectual Property in Innovation: Perspectives." edited by Department of Prime Minister and Cabinet Office of the Chief Scientist. Canberra: Australian Government Publishing Service, 1993.

———. "The Role of Intellectual Property in Innovation. Volume One: Strategic Overview." edited by Department of Prime Minister and Cabinet Office of the Chief Scientist. Canberra: Australian Government Publishing Service, 1993.

Ashby, Eric. Masters and Scholars: Reflections of the Rights and Responsibilities of Students, The Whidden Lectures for 1970. (London: Oxford University Press, 1970).

Australian-Vice-Chancellor's-Committee. "Conditions of Acceptance of Research Contracts (Draft)." In File P37 Intellectual Property. Sydney: Macquarie University Archives, 1989.

———. "Ownership of Intellectual Property in Universities: A Discussion Paper." AVCC, 1993.

Council, Australian Research. "On the Public Funding of Research." edited by Education and Training Department of Employment. Canberra: Government Publishing Service, 1989.

———. "Advice and Instructions to Applicants for 1990 Research Grants." edited by Education and Training Department of Employment. Canberra: Government Publishing Service, 1989.

Council, Australian Research Council and Higher Education. "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." edited by Education and Training National Board of Employment. Canberra: Government Publishing Service, 1995.

Council, Australian Science and Technology. "Setting Directions for Australian Research." edited by Education and Training National Board of Employment. Canberra: Government Publishing Service, 1990.

Department of Industry, Technology and Commerce. "Bringing the Market to Bear on Research. Report of the Task Force on the Commercialisation on Research." edited by Technology and Commerce Department of Industry. Canberra: Government Publishing Service, 1991.

French, J. "University of Western Australia v Gray (No 20) [2008] " In FCA 498 CORRIGENDUM 2, edited by Federal Court of Australia. Perth: Federal Court of Australia Western Australia District Registry, 2008.

36

Henderson-Sellers, A. "Intellectual Property Policy - Comments by a Henderson-Sellers." In Intellectual Property File. Melbourne: RMIT Archives, 1996.

Macquarie-University. "Intellectual Property Policy." In Intellectual Property File. Sydney: Macquarie University Archives, 1991.

National Board of Employment, Education and Training. "Report of the Committee to Review Higher Education Research Policy." edited by Education and Training Department of Employment. Canberra, 1989.

———. "The Transfer of Operating Grant Funds to Competitive Schemes after 1991: Advice of the Nbeet and Its Arc and Hec." edited by Education and Training National Board of Employment. Canberra: Government Publishing 1990.

———. "Commercialisation of Research: Advice of the National Board of Employment, Education and Training and Its Australian Research Council." edited by Education and Training National Board of Employment. Canberra: Government Publishing Service, 1992.

———. "Maximising the Benefits: Joint Arc/Hec Advice on Intellectual Property." edited by Education and Training National Board of Employment. Canberra: Australian Government Publishing Service, 1995.

O'Donnell, Carrol. Exploiting Australia's Intellectual Property Better University of Sydney Website, 2007 [cited 18 May 2009]. Available from http://www.usyd.edu.au/alumni/about/in_your_view/articles/carol_odonnell.shtml.

Royal-Melbourne-Institute-of-Technology. "Intellectual Property Policy." Royal Melbourne Institute of Technology Archives, 1993.

———. "Intellectual Property Committee Minutes of Meeting 6/95: Friday 13 October``." In Intellectual Property File. Melbourne: RMIT ARchives, 1995.

Thorp, R.H., and K. Buckley. "Report on a Visit to the Tasmanian Association." Vestes 1, no. 5 (1958): 2-10.

University, Australian National. "Intellectual Property Policy." In The Australian National University Finance Committee File. Canberra: Australian National University Archives, 1986.

———. Research Office: Intellectual Property Australian National University, 2008 [cited 22 July 2009 2009]. Available from http://www.anu.edu.au/commercialisation/intellectual-property.php.

University-of-New-England. "Intellectual Property Policy." In Intellectual Property Policy File. Armidale: University of New England Archives, 1995.

———. "Knowledge Assets and Intellectual Property Policy Http://Www.Une.Edu.Au/Policies/Pdf/Knowledgeassets&Intellectualproperty.Pdf [Retrieved 28 July 2009]." Armidale: University of New England, 2007.

Wollongong, University of. "Patents Policy." Wollongong: University of Wollongong Archives, 1979.

———. "Intellectual Property Policy." Wollongong: University of Wollongong Archives, 1988.

37

Secondary Sources Arena, Christopher M, and Eduardo M Carreras. The Business of Intellectual

Property. (Oxford: Oxford University Press, 2008).

Barthes, Roland. "The Death of the Author." In Image Music Text. (London: Haroer Collins, 1977).

Chartier, Roger. "Figures of the Author." In Of Authors and Origins: Essays on Copyright Law, edited by Brad Sherman and Alain Strowel. (Oxford: Clarendon Press, 1994).

Coombe, Rosemary J. The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law. Edited by Stanley Fish and Fredric Jameson, Post-Contemporary Interventions. (Durham and London: Duke University Press, 1998).

Etzkowitz, Henry, and Loet Leydesdorff. "The Dynamics of Innovation: From National Systems and 'Mode 2' to a Triple Helix of University-Industry-Government Relations." Research Policy 29, no. 2 (2000): 109-23.

Etzkowitz, Henry, Andrew Webster, Christine Gebhardt, and Branca Regina Cantisano Terra. "The Future of the University and the University of the Future: Evolution of Ivory Tower to Entrepreneurial Paradigm." Research Policy 29, no. 2 (2000): 313-30.

Foucault, Michel. "What Is an Author." In Language, Counter-Memory, Practice : Selected Essays and Interviews, edited by Donald F. Bouchard. (Ithaca, New York: Cornell University Press, 1977).

Garnsey, Elizabeth. "The Entrepreneurial University: The Idea and Its Critics." In How Universities Promote Economic Growth, edited by Kaoru Nabeshima, 227-38. (Washington DC: The World Bank, 2007).

Gibbons, Michael, Camille Limoges, Helga Nowotny, Simon Schwartzman, Peter Scott, and Martin Trow. The New Production of Knowledge: The Dynamics of Science and Research in Contemporary Societies. (London: Sage, 1994).

Lyotard, Jean-Francois. The Postmodern Condition: A Report on Knowledge: University of Minnesota Press, 1984).

Marginson, Simon, and Mark Considine. The Enterprise University: Power, Governance and Reinvention in Australia. (Cambridge: Cambridge University Press, 2000).

Mauss, Marcel. The Gift: Forms and Functions of Exchange in Archaic Societies. Translated by Ian Cunnison. (London: Cohen & West, 1954).

McInnis, Craig, Richard James, and Alison Morris. "The Masters Degree by Coursework: Growth, Diversity and Quality Assurance." edited by Education and Training Department of Employment, 100 pages: Australian Government Publishing Service, 1995.

McKeogh, Jill, and Andrew Stewart. Intellectual Property in Australia. (Chatswood NSW: LexisNexus Butterworths, 2004).

McSherry, Corynne. Who Owns Academic Work? Battling for Control of Intellectual Property. (Cambridge Massachusetts: Harvard University Press, 2001).

Mitchell, Henry C. The Intellectual Commons. Edited by James P Sterba, Lexington Studies in Social, Politicl and Legal Philosophy. (Lanham: Lexington Books, 2005).

38

Monotti, Ann Louise, and Sam Ricketson. Universities and Intellectual Property: Ownership and Exploitation. (Oxford: Oxford University Press, 2003).

Nowotny, Helga, Peter Scott, and Michael Gibbons. "Introduction: 'Mode 2' Revisited: The New Production of Knowledge." Minerva 41 (2003): 179-94.

Oates, William. "Re: Request to Access IP Policies 1980-1998 (University Archivist: Personal Communication: Email)." edited by Hannah Forsyth. Sydney: Email, 2009.

Pelikan, Jaroslav. The Idea of the University: A Reexamination. (New Haven: Yale University Press, 1992).

Ricketson, Staniforth. The Law of Intellectual Property. (North Ryde: The Law Book Company, 1984).

Rose, Mark. "The Author as Proprietor: Donaldson v Becket and the Genealogy of Modern Authorship." Representations 23 (1988): 51-85.

Stevens, Greg A., and James Burley. "3,000 Raw Ideas = 1 Commercial Success!" Research Technology Management 40, no. 3 (1997).

Thompson, EP. "Time, Work-Discipline and Industrial Capitalism." Past and Present 38 (1967).