Whose Property Is It? 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.

By Gary Rhoades

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 intel-lectual 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.

Therein lies a central feature of corporatization in higher education: colleges and universities are claiming ownership of the products academics create in the course of their regular professorial duties. Their doing so establishes a corporate relationship between employee (faculty member) and employer (college or university).

Historically, higher education has been considered part of the public domain, a nonprofit arena of activity; during some periods, it has also been seen as a venue for professional production that is relatively independent of commercial interests. But as academic managers increasingly orient academic work and production to revenue generation, in much the same way that CEOs manage private corporations, the traditional patterns of higher education are changing.

Ownership Issues

Who owns academics’ intellectual property? It depends. It depends on the type of property. Sometimes it depends on negotiations between an individual faculty member and the administration. At many colleges and universities, it depends on the institution’s control of academics’ time, and a faculty member’s use of institutional resources. All of these answers, however, reveal an increasingly corporate model of academic employment, one that in terms of property ownership is more prevalent in nonunionized than unionized settings.

Publications—articles, books—are the most common research products. Institutions do not own them, but neither do most academics. Publishing houses do. Faculty members may get book royalties, and sometimes cash advances, but most academics sign away copyright ownership. By contrast, research products such as patents, software, and trademarked items often have several principal claimants: universities and colleges, academics, and sometimes private companies that support the research.

As universities forge closer ties with businesses, companies’ claims to professors’ intellectual property become more common. And as faculty members form closer relationships with the private sector, consulting contracts increasingly determine treatment of intellectual property (the company owns any product that is created; the faculty member gets ongoing monetary and other research support).

Much intellectual property is produced for instruction. Course materials may be commissioned by the institution—that is, faculty members create them as "works for hire." Sometimes, academics develop distance education courses whose ownership is determined by negotiation, institutional policy, or contract provisions. In other instances, institutions may seek to commercialize materials that faculty produce for regular courses (as in the example of UCLA described above).

Negotiations between a faculty member and an institution over ownership of intellectual property occur in both nonunionized and unionized settings, where some policies and contract provi-sions state that ownership will be negotiated between the individual creator and the institution. Of course, deals between individual professors and institutions can also be made in the absence of (or despite) specific policies or contract provisions.

Often, policies developed or approved through shared governance, or provisions negotiated in collective bargaining, clarify ownership. Typically, a key point of contention is the institution’s claim to academics’ time, and faculty members’ claim to their own time. The struggle is over whether professors are professionals who are independent of the institution.

Most nonunionized research universities do not recognize professors’ ownership of the time in which they create intellectual products. For several years, I observed the deliberations of a technology-transfer committee at a public research university as it developed intellectual property policies. Whenever the issue of ownership came up, someone would jokingly refer to faculty members who maintained that they had made discoveries "while in the shower, on the weekend." The humorous reference left almost no doubt that professors had little credible claim to "their own time" in their own space. Most of the committee members were scientists and engineers. In their eyes, property was created in labs, on campus, during "work" time. The policy that came out of the committee’s deliberations had no reference to property created on a faculty member’s own time.

By contrast, many collective bargaining contracts recognize that professors can create intellectual products in their own time, and accord such property to faculty members. Although some faculty members believe unions are antithetical to professionalism, collective bargaining offers more protection for academics’ claims to their own time as professionals than do policies at nonunionized institutions.

Another key point of contention in determining ownership is use of institutional resources. The struggle is over the model of ownership that applies in the academy—that of the corporate community, in which ownership is a function of controlling the means of production, or that of the professional community, in which ownership is a function of creative input. The choice is critical, because most faculty members use some institutional resources—lab, library, computer, office, or other facility—to create intellectual products.

In nonunionized research universities, most policies follow the corporate model, giving the institution ownership when its resources are used. In other words, institutions own academics’ intellectual property, because professors do not control the means of production in their workplaces. Yet many collective bargaining agreements accord academics ownership even when institutional resources or facilities are used in creating the property. Moreover, some contracts differentiate between routine and significant uses of institutional resources and provide that the only condition under which a faculty member does not own intellectual property is when the product is a "work for hire." Many academics in nonunionized settings believe that unions encourage an "industrial" model of employment. Ironically, however, unions have often negotiated provisions for faculty members’ intellectual property that, unlike policies at nonunionized research universities, are based on a "professional" model of creative rights.

So who owns academics’ intellectual property? As I have explained, the principal claimants are colleges and universities, faculty members, private publishing houses, and companies. The claims of "the public," which underwrites federally funded research and pays academic salaries through taxes and tuition, remain unconsidered.

Faculty Complicity

Colleges and universities are not the only ones chasing the promise of the marketplace. Some faculty members are doing so as well. How to divide potential profits is a central focus of intellectual property policies and contractual provisions. Academics, in negotiating individually or collectively to ensure their share, may be making a Faustian bargain. By accepting that their intellectual labor should be translated into products for private gain, they contribute to the corporatization of academe.

Research universities, most of which are not unionized, often have policies detailing the division of profits between the institution and the faculty inventor. Sometimes, monies are also accorded to the colleges or units in which the faculty members work, or to their lab. The breakdown varies by university. Institutions are often reimbursed up front for costs such as legal fees for prosecuting a patent, or institutional resources used to produce instructional materials. Any additional shares are distributed among other parties involved, depending on the amount of the profits and the terms of the university’s policy. The shares may vary by whether the property involves a patent, software, or instructional materials.

Universities, then, differ from corporate employers, which give no share of profits to the employee-creator. The thought is that academics need an incentive to produce commercially viable products that will generate revenue for the institution. Although the university owns the intellectual property, it gives its faculty members a share (often 30 to 50 percent) of the profits.

Academics at unionized institutions tend to fare better than their nonunionized peers. Many collective bargaining contracts accord faculty members ownership of, and the profits from, any intellectual property they create. Moreover, when the institution owns the property, unionized faculty members often receive a larger share of the profits (for example, 60 to 80 percent) than their nonunionized counterparts. Some even get a share even when their work is produced "for hire."

The public is usually left out when the profits from academic intellectual property are divided. One partial exception arises in collective bargaining agreements that prohibit faculty members from profiting from instructional materials by selling them to students at their own institutions. Yet even this exception clarifies what is at stake: the proprietary claim of the employing institution, not the public interest.

The point is not just that the public is cut out of any "share" of profits. It is that the current negotiation structure diminishes the public domain, reducing academe’s traditional commitment to serve the public interest by creating intellectual products for free public use. In negotiating profits, academics are complicit in the idea that intellectual property is a product to be owned and sold privately, not a public good. In today’s corporatized university, the public interest is said to be served by providing academics with financial incentives to create intellectual products rather than by the distancing their creative work from personal gain. This shift may come back to haunt faculty, as institutions increasingly deemphasize intellectual work that has no immediate commercial benefit.

Quality Control

As intellectual property becomes increasingly privatized, who controls its use? For many faculty members, what is at issue is not the money, but quality control and professional autonomy. With the advance of corporatization, academic managers have increasing say over initiatives in research and instructional programs, evaluating them, along with academic work in general, in terms of their potential commercial value. Formerly, such decisions were more firmly within the professional domain of faculty members and based more exclusively on academic criteria.

With instructional materials, most academics are not looking to make big money; their goal is mainly to control how their products will be used. They want to ensure that only qualified instructors teach with the materials and that the faculty creator can revise or pull them off the shelf when they become outdated, as opposed to their being recycled to make money for the institution.

With research products, most academics are driven less by commercial promise than by the prospect of seeing their work have practical impact. Few scientists or engineers aim primarily to get rich off their products; on the contrary, many are delighted when their work translates into a product from which the public can benefit. Right now, the principal mechanism for ensuring such a result is to sell the product in the marketplace.

Academic managers, however, focus on maximizing revenues. This goal affects their evaluation of academic work and their assessment of research and instructional programs. They are more likely to favor fields that offer the promise of producing commercial products, commanding private support, and yielding potentially lucrative patents, along with fields that attract federal funding, than fields driven by curiosity and dedicated to academic publishing.

Like decisions in other areas, those affecting instructional programs and initiatives reflect this shift in authority and criteria. Decisions increasingly bypass collective faculty control and are made with an eye toward efficiency and profit instead of educational quality. Hoping to expand their institution’s market share and enhance tuition revenues, academic managers develop costly distance-education ventures that lie outside the purview of most faculty members. On campus, managers increasingly favor investments in technology over those in new faculty positions, viewing technology as a means of gaining efficiencies through larger class sizes. Such investments reorganize instruction in ways that decenter the faculty, rationalize teaching, and expand the role of nonfaculty professionals. Without faculty consent, some institutions are even "branding," trading on educational reputations earned through academic labor. They are signing over instructional programs to businesses that offer them under the institution’s name but without using the institution’s full-time professors.

So who controls the use of academics’ intellectual property? Under the corporate model of higher education, managers do, relying on a commercial calculus that centers potential revenue gain and decenters academic autonomy. Managers are reorienting the academy to serve those who can pay the most for research and instruction. Their strategy is, however, short-sighted in that they fail to count the costs of their efforts economically (considering the debit side of the balance sheet) or politically (considering the price in broad public support).

Public Domain

Academe is a distinctive ecology, defined less by short-term commercial payoffs than by long-term educational values. It is more than just a professional domain; it is also a public domain, and the two are intertwined. Professions arose in the late nineteenth and the early twentieth centuries partly to mitigate capitalism’s excesses, serve public purposes, and broaden the public domain; their legitimacy lies to some degree in maintaining distance from the commercial world. For-profit higher education entities that have no full-time faculty and offer cookie-cutter course work constrain professional creativity and academic freedom, offering little by way of publicly oriented intellectual work. As not-for-profit universities model themselves increasingly on corporations, their ecology is at risk. Privatization threatens academic positions and the professional status of academics in colleges and universities; it also threatens academe’s core intellectual work and position in the public domain.

In negotiating intellectual property rights, we negotiate not only individual claims and the collective direction of the academy, but our external legitimacy as independent professionals. Our negotiations currently leave out the public as a claimant; the public has become simply a marketplace from which academics and corporate-style institutions of higher education can generate revenue. Thus the public domain shrinks. The more we are complicit in this corporatization, the more our claims to be independent professionals working in a domain worthy of public support become suspect.

Collectively, faculty need to renew their commitment to public purposes and work. I am not suggesting that we take vows of poverty and sequester ourselves like medieval monks and nuns. But there are reasonable alternatives to the privatization of academic knowledge. One combines private gain and public access. Through royalties from publishing books, faculty members capitalize on the proceeds of their intellectual property, yet it is available for public use in libraries. Thus intellectual products can yield private gain and be in the public domain. Although we want people to buy our books, we would not suggest that the books should not be available at libraries for free. We want to be cited, even read: that is our coin of the realm. We can pursue a similar model for other types of intellectual property.

A second alternative would be to set aside part (or all) of the monies generated by intellectual property in a "public trust" for purposes ranging from need-based scholarships to outreach activities in local schools and communities. Some institutions create a fund devoted to research from monies generated by patents; a public trust fund would extend this concept. A third alternative would be to "discount" the cost of what the public pays for academic products to recognize its subsidy of them. A fourth alternative would be to ban institutional and individual sale of a product. One collective bargaining agreement, for example, says that the institution will not sell instructional materials designed for or used in distance education.

So whose property is it? It is the public’s. The more we put intellectual property in a public trust, the more we stand to (re)gain public trust. The more we negotiate to conserve and cultivate the public dimensions of intellectual work in colleges and universities, and to enlarge the domain in which intellectual products are used, the more we expand and enhance our own domain as independent, yet publicly engaged, professionals.

Gary Rhoades is professor of higher education and director of the Center for the Study of Higher Education at the University of Arizona.

Printer-Friendly Page