The Enclosure of the Academic Commons

Academic research and innovation depend on cooperation, collaboration, and sharing. What happens to academic knowledge when ideas become intellectual property?

By David Bollier

There was actually a time, not so long ago, when academic researchers regarded the patenting of their discoveries as a contemptible affront to the mission of science. Jonas Salk, Albert Sabin, and John Enders did not seek to claim ownership of their pioneering polio vaccine research in the 1940s and 1950s. Cesar Milstein, who shared a Nobel Prize for helping develop monoclonal antibody technology in 1975, did not even ask if the method should be patented. Nor did Stanford University's Stanley Cohen and Herbert Boyer think about patenting the gene-splicing techniques they developed in 1973 until a university attorney urged them to do so. "My initial reaction," said Cohen, "was to question whether basic research of this type could or should be patented and to point out that our work had been dependent on a number of earlier discoveries by others." Cohen later agreed to file for a patent, but only if the university would be named as the exclusive beneficiary.

Times have changed. In the course of one generation, the public-spirited ethic of the academy has been challenged by a frankly acquisitive ethic that aggressively seeks private ownership and profit from the fruits of university research. This development has not been without its benefits. The commercialization of promising scientific research—"technology transfer"—has in fact accelerated, producing a great many useful products and biomedical advances of significant benefit to humanity. And some research universities have reaped bonanzas that may help them fortify and expand their educational missions.

But while the new proprietary ethic within universities may produce certain useful results (chiefly for a handful of research institutions and their corporate sponsors), the piper must be paid. The growing market ethic within academia, especially in "hot" fields such as molecular biology and computer science, is beginning to eclipse the long-standing presumption that scholarship should be open, collaborative, and public.

Powerful market pressures are eroding the academic commons, especially the social "gift economy" that has been such a productive engine of academic knowledge. The gift economy is a system by which members of a distinct community, joined through shared values and commitments, create valuable artifacts and services for each other without using money, legal contracts, or other market mechanisms. Increasingly, the gift economy within academia is being undermined by the rush to patent federally funded research, lucrative corporate consultancies, generous grants from industry, corporate stock in research projects, and conference honoraria and junkets.

Higher education plays a unique role in our democratic society by discovering new knowledge and transmitting it from one generation to the next—and to all segments of contemporary society. Historically, the fruits of academia have been committed to the public good. Scientific and scholarly research has been distinguished by its general independence and integrity. Can these core values be adequately protected as more scholarly arenas are reconceptualized as market resources, to be treated as holdings in an investment portfolio whose primary goal is return on investment?

Any responsible university administrator must aggressively seek out new sources of financial support, especially in times of budget shortfalls. But it is equally imperative that the fundamental purpose and culture of the university be preserved. "There's been a paradigm shift," a high-ranking University of Southern California administrator admitted to the New York Times in 2000. "There was a time that . . . the idea of making money from your research . . . was not acceptable at universities, including ours." Now, however, "the kept university"—to use the terminology of Eyal Press and Jennifer Washburn in their pioneering March 2000 Atlantic Monthly article—is becoming a far more pervasive model.

University as Commons

The scientists of previous generations who refused to patent their breakthrough discoveries were neither naive nor saintly. They were members of a flourishing gift culture, the academy, which presumed (and still presumes, for the most part) that data, research tools, and other scholarly resources should be widely shared and openly scrutinized. There is an expectation that certain standards of rigor, candor, and ethics will be met, and that a discipline's work should serve a larger public interest.

Gift exchange plays a crucial role in nurturing these values, because it fosters internal commitments that cannot be easily maintained through external rewards (such as money) or sanctions. As sociologist Georg Simmel has written, gratitude to a community "establishes the bond of interaction for the reciprocity of service and return service, even where they are not guaranteed by external coercion."

In a society besotted by the market, his is a sobering caution. We sometimes forget that the progress of science and the life of a university depend on free and open cooperation. "Those who produce [scientific knowledge]," writes University of California, Berkeley, law professor Robert P. Merges in Social Philosophy and Policy, "understand that the community always has extensive claims on it, because without shared knowledge, research techniques, and even biological materials, there would often be no results, no progress, and hence nothing to argue about." It is important for scientists to share, he notes, because "a lab that always 'takes' research results, but never 'gives' in return . . . is like a municipality that pumps water as fast as it can, at the expense both of its neighbors and ultimately of rational water use."

Science is a commons in a more familiar economic sense as well. The federal government provides about 59 percent of funding for academic research, according to the National Science Foundation. Furthermore, many colleges and universities receive extensive state funding. Educational institutions are exempt from taxes because it is assumed that they do work for the public good that is not addressed by the market. Serving the public is one reason that the land-grant colleges were created in the nineteenth century and why government agencies look to academics for expert guidance. It is also why higher education has generally been considered a respected, independent voice in our democratic society.

A key moment in the enclosure of the academic commons occurred in 1980, when Congress enacted the Bayh-Dole Act. The law was cast as a way to accelerate the commercialization of academic research, but it has had profound implications not just for the public's control of science, but for the very identity of universities as institutions dedicated to public service.

In the postwar years, there was a broad consensus that the intellectual property rights of federal research should stay in the public domain, or at least be licensed on a nonexclusive basis. That way, the American people could reap the full measure of value from their collective investments. In the late 1970s, however, large pharmaceutical, electronics, and chemical industries mounted a bold lobbying campaign to reverse the presumption of public ownership of federal research.

Representative Jack Brooks objected that the proposed law represented "a pure giveaway of rights that properly belong to the people. . . . The federal government has the equivalent of a fiduciary responsibility to the taxpayers of the country." But Congress thought otherwise and enacted Bayh-Dole. In the years that followed, President Reagan signed a number of related laws and executive orders that weakened the public's control over government research in subtle but important ways. By the end of the 1980s, as Chris Lewis describes in a 1993 article in the Multinational Monitor, federal technology transfers to the private sector had become a massive giveaway of taxpayer-sponsored research and development worth billions of dollars. From a short-term perspective, the Bayh-Dole Act has certainly fulfilled its purpose of accelerating the use of university research. One need look only at the efflorescence of biotechnology parks and silicon corridors in university towns, the hundreds of patents granted to universities (mostly a small club of research institutions), and the important technologies brought to market.

But these undeniable economic gains may or may not have required giving away exclusive ownership rights to the research. In any case, Bayh-Dole has also exacted long-term costs that many universities prefer not to confront: a sweeping privatization of publicly funded knowledge, a ceding of research agendas to the private sector, and an erosion of public confidence in the independence of university research.

Marketization of the Academy

Because the process by which knowledge is generated and distributed is so abstract, it can be hard to appreciate why the "marketization" of academic knowledge can be so pernicious. By "marketization," I refer to the imposition of market norms and relationships onto the activities of academic life. It means that a monetary value is placed on knowledge, contractual business relationships are elevated over community commitments, and private profit is enshrined as the primary goal of academic inquiry. A key element of the marketization of the academy is the "propertization" of knowledge. This is a process by which shared knowledge available to everyone (or at least to members of one's discipline) is redefined as legally enforceable "property" subject to private control. If knowledge is going to be sold on the market, it must first be "propertized" in order to make it an alienable commodity.

Profound consequences flow from the marketization of academic life and the propertization of knowledge. Consider that basic research eventually resulting in the genetics and computer revolutions was federally funded in the years before enactment of Bayh-Dole. It was therefore in the public domain, open and available to all. That was critical in enabling other researchers to build on basic scientific knowledge in new ways and come up with new discoveries and breakthrough inventions.

Now, imagine if all this knowledge had been considered a proprietary secret. That, in essence, is what is occurring today as a result of the new norms encouraged by the Bayh-Dole Act and related rules. There is no longer a general presumption that research will flow into the public domain and be free to use. Instead, huge swaths of knowledge are fenced off into privately owned plots. This trend is ominous because, as computer scientist Norbert Weiner once noted, scientific knowledge achieves its full value only "with its further application by many minds and with its free communication to other minds." The marketization of knowledge can strangle its circulation, which is indispensable to good science.

This fear animated protests against UC Berkeley's deal with Novartis (now known as Syngenta), the pharmaceutical and biotech company. In return for $25 million, Berkeley agreed to give Novartis the first rights to negotiate patent licenses on up to one-third of the research produced by the Department of Plant and Microbial Biology. While this deal may or may not be necessary to speed technology transfer, it cannot help but alter research priorities at the university and privatize more of the scientific knowledge generated.

The marketization of university research is now becoming institutionalized. Many schools have opened special technology-licensing offices to obtain patents and collect royalties. Others have created venture capital funds to invest in business start-ups that "buy" university research. Stanford University has actually launched its own brand-name product in order to extend its revenues beyond patent terms.

While the logic of cashing in on university research may seem impeccable, in 1998 a working group at the National Institutes of Health (NIH) warned Harold Varmus, who was then the NIH's director, that creeping propertization was jeopardizing the free exchange of research data and tools in biomedical research. The working group found that university contracts "present just about every type of clause that universities cite as problematic in the [contracts] . . . they receive from industry." Among the restrictions: university review of manuscripts prior to publication; publication delays so patents can be filed; legal claims to ownership of future scientific discoveries; the right to refuse to license follow-on discoveries to other parties; and the right to prevent sharing of material with others.

Far from fostering new knowledge, too much propertization may in fact be stifling life-saving innovations, write legal scholars Michael A. Heller and Rebecca S. Eisenberg in a landmark 1998 Science article. They call it the "tragedy of the anticommons"-a situation in which a scarce resource (biomedical knowledge) is seriously underused because "multiple owners each have a right to exclude others . . . and no one has an effective privilege of use."

The implications can be especially severe as property rights reach further "upstream" into the research process to privatize knowledge whose utility is not yet known. If one researcher or company can patent raw segments of the human genome, for example, it means that many future researchers simply will not dare to "trespass" upon a patentee's "privately owned" knowledge. Since biomedical research requires the use of many contributions from preceding scientists (in the form of specialized processes, reagents, genetically distinct organisms, and so on), locking up upstream research introduces legal complexities that can have tragic results. "Researchers and their institutions may resent restrictions on access to the patented discoveries of others, yet no one wants to be the last one left dedicating their findings to the public domain," write Heller and Eisenberg.

As the propertization of once-shared knowledge continues apace, some areas of scientific research seem to be approaching paralysis. A new kind of rice genetically engineered to resist a tropical virus cannot be sold because approvals must first be obtained by as many as thirty-four different patent holders, according to Dr. Ana Sittenfeld of the University of Costa Rica. About 45 percent of plant breeders at U.S. universities say their research has been impeded by difficulties in obtaining seeds from private companies, according to a 1999 survey by Steven C. Price of the University of Wisconsin. Others complain that research on improving crop yields in developing nations is grinding to a halt because the market for it is not attractive. This phenomenon is likely to replicate itself in many research fields as public-sector science shrinks in size, resources, and influence.

Academic Independence Under Siege

One disturbing side-effect of the enclosure of the academic commons is the suppression of "inconvenient" research results and the dismissal of scientists who reach discomfiting conclusions. That should not be surprising. Corporate sponsorship of research tends to skew research agendas and throw a veil of proprietary secrecy over important scientific projects. When proprietary barriers are erected, test results cannot be openly scrutinized and challenged. The potential for conflicts of interest and ethical abuses is far greater.

One of the most remarkable instances of these dynamics involved Betty J. Dong, a clinical pharmacist at the University of California, San Francisco, who studied a popular thyroid drug made by Knoll Pharmaceutical. When Dong found that the drug performed about the same as three cheaper medicines, the company-which had funded the research-proceeded to suppress publication of the study, as authorized by its contract.

Such stories are not unusual. A Canadian drug company, Apotex, threatened to sue liver specialist Nancy Olivieri for breach of contract if she warned her patients or published her findings that the company's drug, L1, had dangerous side effects. When researchers at the University of California, San Francisco, published a study that found no clinical advantage in the use of Remune, an AIDS drug, the sponsoring company, Immune Response Corporation, sued the university for $7 to $10 million in damages, according to the Wall Street Journal.

Public trust in university research took a real dive in 1999, when it was learned that researchers at the University of Pennsylvania had taken ethical shortcuts in the course of experimental gene therapy-shortcuts that were fatal for one of the test subjects. Accidents and abuses are inevitable, some may argue, but it did not help that the professor involved, a dean, and the university itself all had equity stakes in the company sponsoring the clinical trials.

"Is Academic Medicine for Sale?" asked Marcia Angell, M.D., in an editorial in the New England Journal of Medicine. "I believe the claim that extensive ties between academic researchers and industry are necessary for technology transfer is greatly exaggerated, particularly with regard to clinical research," Angell wrote in May 2000. Such ties are supremely useful for exploiting the talent and prestige of universities, especially for marketing purposes, she asserted. But "it is highly doubtful" that consultancies, equity stakes in companies, travel to industry-sponsored symposiums, meals, and other gifts "facilitate technology transfer or confer any other social benefit," Angell argued.

Nonetheless, research universities have not been eager to grapple with these concerns. A 2000 study published in the Journal of the American Medical Association found no consensus among universities about appropriate conflict-of-interest policies, and few formal safeguards are in place. Only 55 percent of the hundred universities surveyed required any disclosures of conflicts of interest, for example, and only 19 percent specified any limits on researchers' financial ties to companies sponsoring their research. Just 12 percent tried to limit corporate-dictated delays on the publication of research.

"As we in the academy begin to use business-speak fluently," warns Michele Tolela Myers, president of Sarah Lawrence College, "we become accustomed to thinking in commercialized terms about education. We talk no longer as public intellectuals, but as entrepreneurs. And we thus encourage instead of fight the disturbing trend that makes education a consumer good rather than a public good."

When market priorities become overriding concerns in academia, the humanistic and ethical values that should lie at the heart of education recede into the shadows. The commitment of universities to free and independent inquiry, wherever that may lead, atrophies. So do the ideals of service to a democratic culture. That may be the most serious danger posed by the propertization of academic life.

It is a measure of how much we have lost that the Jonas Salks and Cesar Milsteins of this generation would probably not leave the fruits of their labor in the academic commons. In today's market-obsessed culture, the idea of giving one's research and scholarship as a gift to one's colleagues and to the American people-not to mention to future generations (repaying a debt owed to those who came before)-seems like a sucker's choice. Smart money today wants to make darn sure that any bankable knowledge within the university is locked up in equity shares.

We take for granted the many blessings of the modern university. It is a unique host for independent inquiry, democratic dialogue, and scientific progress. Its vast legacy of knowledge is indispensable to current and future endeavors. But many universities, seduced by the siren call of the market, are cashiering some core values and subverting the vitality of the academic commons. We need to begin a far more robust, far-ranging dialogue about this troubling trend.

David Bollier is senior fellow at the Norman Lear Center at the University of Southern California's Annenberg School for Communication; director of the Information Commons Project at the New America Foundation; and cofounder of Public Knowledge, an advocacy group dedicated to defending the commons of the Internet, science, and culture. He is author of Silent Theft: The Private Plunder of Our Common Wealth, published in 2002, from which this article is derived. © Routledge.

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