Who Owns Academic Work? Battling for control of intellectual property
by Corynne McSherry, Harvard University Press, $29.95/拢20.50,
ISBN 0674006291
IMAGINE you are a professor, and your lecture notes for a course appear for
sale on a commercial website, having been diligently transcribed by one of your
students, entirely unbeknownst to you.
Or imagine that after months of careful development, the course website you
have designed is now claimed by your university as its property, to be
incorporated into鈥� and even sold through鈥攖he university鈥檚 new
e-college.
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Or that a former graduate student submits an article based on research
performed in your laboratories, but without either your prior knowledge or your
name attached.
Or, finally, that continued progress in your research depends upon access to
data held by an academic competitor, who claims it is a trade secret and is
therefore unavailable.
Universities and other institutions are nowadays besieged by questions of
intellectual property ownership such as these. Corynne McSherry addresses these
issues in her book Who Owns Academic Work? A law student at Stanford
University, she draws on legal and cultural studies to evaluate how the changing
field of intellectual property impinges on鈥攁nd potentially
impedes鈥攖he academy.
So what is the academy? McSherry describes the university in its ideal state
as providing 鈥渦seful uselessness鈥�. Researchers create knowledge, which they then
present to the community in various forms鈥攁rticles, books,
lectures鈥攖hat have no direct commercial applicability and are therefore
鈥渦seless鈥�. They then become part of the public domain, which provides the
starting point for further research and inventions鈥攁nd thereby makes the
knowledge useful. Intellectual property law protects the market world primarily
through copyright and patent. The marketplace is then defined as being distinct
from the public domain.
McSherry is concerned with the future of intellectual property at a time when
universities continue to combine a place in the market economy with their
traditional role in a gift economy. Her second worry is the flip side: what will
be the effect on universities as our standards and definitions of intellectual
property change, especially given the way the public domain is eroding?
In other words, how do researchers separate their need for free exchange of
ideas from the economic demands of 鈥渢echnology transfer鈥� that require patents
and trade secrets? And how should we assign ownership and control of research
among the various governmental, university and corporate funding
sources鈥攏ot to mention the people involved in the actual research: the
senior scientist whose only direct role might have been to write the grant
proposal, postdoctorate workers, research associates and graduate students?
Can universities reclassify faculty members as employees? Under US and
British law this would allow the university to claim ownership of all work
performed in their facilities. Will universities ultimately dictate what work
can be performed, what can be published and who owns it? Is academic freedom an
anachronism?
McSherry looks at these issues primarily by examining a few important legal
cases and interviewing faculty members and students of science and technology at
the pseudonymous 鈥淯niversity of the West鈥�. She is at her best when analysing the
court cases, and though she tries to give her interviews a veneer of statistical
relevance, they remain anecdotal asides. It grates to read so many anonymous
quotes, considering how important personal integrity and professional standing
are in deciding points in the court cases.
The book provokes much thought about issues that most academic scientists
likely do not consider in much depth鈥� copyright, patent and data
ownership, and the 鈥渨ork-for-hire鈥� exclusion of individual employee鈥檚 rights in
the US. But I wanted to see more on some important current developments. What,
for example, will be the impact of researchers exchanging pre-prints through
archives such as www.arxiv.org? What of authors pushing to retain copyrights,
driven by rising journal costs and limited distribution? Will new laws
protecting databases restrain free exchange and thereby inhibit innovation?
McSherry ably demonstrates that universities are going through a second
revolution. Academics should be wary of what that revolution may bring.