Whose property is it?

Academe, Sep/Oct 2001 by Rhoades, Gary

Negotiating with the University

Professors can retain control over their intellectual property through collective bargaining and careful planning.

But they may lose their professional status and the public's support.

At the mention of intellectual property, many academics conjure up an image of a scientist or an engineer in a lab discovering or constructing something of potential value in the marketplace. In their eyes, only a few professors in a few departments in research universities who patent their findings or creations have anything to do with intellectual property. They believe that for most faculty members, it is a relatively peripheral issue compared with salary and benefits, tenure, and job security. They are wrong.

Some academics also associate intellectual property with professors who teach videotaped distance-education courses. In their eyes, only the handful of instructors who teach at a distance need worry about it. They believe that intellectual property is a relatively minor issue in terms of traditional classroom teaching, on the margins of the lives of most faculty members, compared with academic freedom. They, too, are wrong.

All academics create some kind of intellectual property in their teaching or research. And more and more of the intellectual products that faculty members develop are being commodified. Whose property are these products? More specifically, who owns the intellectual property academics create? Who gets a share of any profits generated by it? And who controls its use? To explore these questions, I examined faculty union contracts at colleges and universities with collective bargaining and intellectual property policies at nonunionized research universities. I found that institutions with collective bargaining tend to do a better job of protecting the interests of academics than do research universities without unions.

The answers to these questions about intellectual property touch all academics. They affect our claims to own and profit from our intellectual products and the scope of the public domain, which is shrinking as academe becomes more closely tied to the corporate world. They also affect the scope of our own domain, which is contracting. The expansion of managerial discretion in higher education makes us more and more "managed professionals," whose influence over academe's direction and over our own time is declining. I argue that, paradoxically, the path to enhancing our position may lie less in advancing our private property claims than in promoting the public's access to and benefits from our intellectual work.

Academic Commodities

From one institution to the next, the intellectual products of professors are being translated into commodities sold in the marketplace. The type of intellectual property varies from community colleges to research universities, and from education to engineering departments. It might be distance-education materials produced by a faculty member. It might be the teaching materials (syllabus, lecture notes, overheads) a professor developed for a traditionally taught course that are put on the Web. (The University of California, Los Angeles, for example, sought to require professors to post course materials on the Web so that it could sign a contract with a company to deliver the courses through distance education.) Or the property might be software a faculty member created or the fruits of a professor's research-from an instrument used in educational testing to a patentable discovery. Whatever it is, the general point holds: increasingly, faculty members' intellectual products, including those generated from their basic research and teaching activities, are being considered as commodities.

Several developments in the past twenty years have contributed to this commodification. In 1980 passage of the Bayh-- Dole Act enabled universities and professors to own patents on discoveries or inventions made as a result of federally supported research. The legislation has led to a proliferation of patenting and other entrepreneurial activity in universities as institutions and individuals seek the discovery that will pay off in millions of dollars.

Technological developments, including that of the Internet, have also been important. The revolution in personal computing has made faculty members into potential desktop publishers and software censors. New technology has reinvigorated delivery of education at a distance and improved instruction in traditional classrooms. These developments hold out the (false) promise of reducing costs (of labor and of bricks and mortar), generating revenues, and enhancing faculty-student interaction. Believing in the promise, institutions have expanded their involvement in distance education and their investment in instructional technology.

But recent decades have also seen increased financial pressure on colleges and universities, especially public institutions, as state governments have reduced the percentage of their budgets allocated to higher education. As a result, institutions have sought to generate more of their own revenues. One way for them to do so is to try to tap into the commercial value of academics' intellectual labor.