Who Owns Academic Work? Battling for Control of Intellectual Property

Citation

Hannabuss, S. (2002), "Who Owns Academic Work? Battling for Control of Intellectual Property", Library Review, Vol. 51 No. 6, pp. 317-319. https://doi.org/10.1108/lr.2002.51.6.317.11

This perceptive study of academics and intellectual property is a revealing barometer of current debate. The increasing commodification of products and services in education has changed the traditional mutuality of academic social exchanges into sets of relationships more and more based on and defined by contract, tort, trade secrecy, and entrepreneurial rights. Corynne McSherry is a law student at Stanford with a Public Interest Law Fellowship and her investigation into the social production of cognitive property (as it is increasingly being called, that is copyrights and patents) catches an important moment.

These are changes affecting higher education throughout the world. Many institutions are turning to the work‐for‐hire legalisms of employment law, under which all or most scholarly work created by academics, developed in the course of employment and using the employer’s facilities and equipment, belong to the employer. Such changes are accelerated by electronic delivery where, arguably, employers take control not only of intellectual material like course units, but also of the means of their production, dissemination and retrieval. For McSherry, this captures a paradigm shift in the epistemic domain of academe: the knowledge economy has converted a trust society, a web of moral obligations based on collegiality and mutuality, into a system of capital accumulation and investment. This has deconstructed and redefined the notion of “university” and “professional academic/researcher”. Her case is not approval or disapproval, but an objective investigation into what is happening and why, and what particular academics and researchers are doing about it.

Such changes have made academic authors far more entrepreneurial in support of their own intellectual property. There is an interesting chapter on patents about this. The larger argument, however, is that of the ways in which the paradigm shift shows itself in actions and decisions about intellectual property. Authorship/inventorship has always been a complex thing because a lot of research and pedagogic work is collaborative, and copyright law on joint authorship is easy to misunderstand, and people fall out. McSherry provides a number of contemporary and current case studies to show how this happens – starting with a scientific researcher whose research was misappropriated by a company specializing in a similar field, and who sued on grounds of trade secrecy. Disjunctures also arise from the professionalism of such academics, moving increasingly away from trusting collegiality, seeking to establish a legally valid autonomy, looking beyond their direct employers for reputation, conscious of the publicity rights of their status as scholars, alert to risks of plagiarism by rivals.

As both scholars and employees, academics, then, face a tension between academic freedom and being employees. Digitization of university courses has emphasized these trends and led to well‐known disputes about ownership of intellectual property. An erosion has taken place between “scholarly work” and work‐for‐hire. McSherry’s cases tell their own story – Caird disputing printer Sime’s right to reproduce his lectures from students’ notes and sell them (did he own them? do lectures put cognitive property in the public domain?), Williams placing an injunction on Weisser for producing “class notes” of his lectures at the University of California at Berkeley. McSherry speculates on whether academics may turn more to publicity rights, rather than copyright, for protection. This useful work, then, describes the battle lines of an academic revolution, at the heart of which lies the propertization of intellectual capital. The battle has drawn in librarians and information intermediaries, conscious of rising journal costs and keen to see pay‐backs from a change of copyright ownership from publishers to the authors themselves (that is, rights retained by the institution). The market rhetoric is legalistic and poses important questions for academics themselves, the institutions where they work, and for the professional markets they have created (where, for instance, databases can cost too much and shut researchers out). This is a timely reminder of academic capitalism, of the role of creativity as a process of creating intangible assets for the university, the increasing trend towards individualized entrepreneurialism in academe. It’s only a partial view of course, as large numbers of collaborative papers show. But it raises critical questions about a changing professional landscape that cannot be ignored.

Excellent value, as a survey of general issues, for any academic or research collection serving courses on copyright and authorship, and a useful bell‐wether for the wide range of resources appearing, above on Internet sites like <http://www.inform.umd.edu> (the “copyown” Web site). For academic authors themselves, they will already have checked their contracts, intellectual property law on what is really theirs, and tried to identify that Chinese wall between works for hire and independent scholarly works. It could be, too, that McSherry has side‐stepped the numerous profitable (and amicable) relationships between academics and institutions over the development of patents, successfully‐branded educational products and services, and those times when academics set up their own companies and seek to take something away which could never have appeared without the economic and social infrastructure of the institution. To be fair, she points out no demons, because it is sound legal and ethnographic research in its own right, but deconstructing the academy is not uncontroversial, and the cases she cites reveal the state of sceptical readiness of many current practitioners. By that token, it deals well with the moral maze of the university, and perhaps explains in part why many promising young researchers go straight for their own company.