Alternatives to Private Ownership

Claire Polster, Associate Professor, Department of Sociology, University of Regina

a talk prepared for the October, 2006, conference sponsored by the
Canadian Association of University Teachers,
“Controlling Intellectual Property – The Academic Community and the Future of Knowledge”

I had a lot of difficulty deciding how to approach my talk for today. After much grappling, I realized that some of the difficulty stemmed from my interpretation of how this talk was framed for me by the conference organizers. As you can see in the program, I was asked to talk about "alternatives" to private ownership or to the privatization of academic knowledge. I understood - and still understand - the term "alternatives" to mean other things that we can do besides privatization, other options or choices that we might make either to limit it or to mitigate its harmful effects. The problem for me with the question of alternatives is that it can implicitly suggest and accept that privatization is here to stay. It asks what can we do in addition to it or instead of it, rather than what we can do to directly oppose it. Today, rather than advocating various alternatives to the university's involvement in intellectual property, I want to make the case for directly opposing it. After presenting my case to you, I will defend it by critiquing a number of alternatives that have been put forward by others.

I have three points to make before I begin. First, I am going to address the question of what needs to be done about private ownership in the university at a very general level. I'm not going to address many specifics in my talk, though I do hope we will do this in discussion. I am pitching my talk at this more general level not in order to avoid the devil that is in the details. Rather, I do it because it seems to me that before we get into the nitty gritty of specifics, we need some general agreement on our larger goals and strategies.

A second reason why I took up the question of what needs to be done at a very general level is because the papers that follow mine both today and tomorrow are going to look at this question at a much more specific or concrete level, and I didn't want to step on anyone's toes. In thinking about it, though, I realized that my paper could be taken as an implicit critique of theirs, given that they do address and promote alternatives to privatization. In order to preempt any misunderstanding, and also to plant a seed for discussion later on, I'll simply say that I believe that strategies such as creative commons, open source, and the like can be extremely useful so long as they are conceived and designed as means to directly oppose privatization rather than simply to side-step or opt out of it. Otherwise, such strategies may inadvertently serve to reinforce privatization (for example, by helping to establish it as one of many equally legitimate options) and thereby run the risk of being hampered if not undermined by it.

Finally, I need to emphasize that I offer my paper to you today more as an opening position than a final position. Although I have not come across a better answer regarding what to do about private ownership in the university, I do wonder if the position I advocate could be further developed or modified in light of other strategies that you may be familiar with or that you may propose here today. At the end of my talk, I will also raise some question that I myself have about my proposed strategy and ways in which it might be strengthened which I hope we can grapple with in discussion.

While my aim here is to address what needs to be done about the university's growing involvement in the privatization of knowledge, I'd like to start by briefly addressing the problems that stem from it, given that my understanding of these problems forms the basis of my proposed response. Further, because the university is a public institution, and because those of us who work in it are all public servants, I'd like to address these problems from the perspective of the public interest or the public domain. It seems to me that there is not one but actually two main problems for the public domain that stem from the university's involvement in the privatization of knowledge. First, it contributes, in a number of direct and indirect ways, to the erosion of the commons of knowledge. In addition, however, it also contributes to the privatization of the university itself, or to its transformation from a public serving institution into a private serving institution or a knowledge business. These two problems are closely related and mutually reinforcing. Let me address each in turn and then propose a strategy that responds to both.

The university's involvement in the privatization of knowledge contributes to the erosion of the commons of knowledge in a variety of mutually reinforcing ways. For example, as universities become more involved and invested in the production and exploitation of intellectual property, either on their own or in collaboration with the private sector, it becomes more difficult and less rewarding for academics to participate in public - that is, free - knowledge production. Among other things, this is because university involvement in intellectual property contributes to rising research costs, diminishes institutional support for non-commercializable research, reduces academics' access to other resources - such as colleagues and time - that they need to do this work, and leads to the provision of greater institutional perks and rewards for entrepreneurial activities. Thus, we are seeing increasing numbers of faculty being either enticed or compelled into the privatization of knowledge, which makes it progressively more difficult for those who would resist to do so. Further, not only are those academics involved in intellectual property (IP) making more withdrawals from our common bank of knowledge without depositing anything in return, but they are also slowing the rate at which other academics and other members of society may replenish our common stock of knowledge. They do this, for example, by refraining from attending or speaking at scientific meetings and conferences, by delaying reporting research findings in scientific and lay media, by withholding their knowledge from the students in their classrooms and the citizens in their communities, and by wasting precious scientific resources by duplicating the work being done by others also in secret. Entrepreneurial academics and their corporate partners may also actively impede others' contributing to the commons of knowledge when, with the encouragement and assistance of their lawyers, they apply for patents that are as broad and open as possible and when they hoard and restrict the use of intellectual property for private profit, as has been done, among many other things, with a key breast cancer gene.

As well as contributing to the erosion of the commons of knowledge, our universities' involvement in the privatization of knowledge is helping to privatize or corporatize our universities themselves, to render them less and less like public institutions and more and more like private businesses. As my own research and that of others shows, universities' involvement in intellectual property is skewing the academic research agenda in favour of business needs and interests; introducing more secrecy, competition, and fraud into academic research; and reducing the public's access to the results of academic research. It is also transforming how universities do their work, such as by promoting more secrecy and reduced transparency and accountability in academic governance and other university affairs. And it is transforming the work that universities do - leading them to prioritize the production and exploitation of commercializable knowledge over providing affordable and high quality education and serving a broad range of community needs. This transformation of our universities from public serving institutions into private serving institutions or knowledge businesses has a wide range of harmful implications that threatens the public's well being both now and in the future. Not only does it reduce the university's accessibility, utility, and accountability to a number of social constituencies, but in encouraging universities and those within them to prioritize their own and others' private interests over the public interest, it ultimately deprives us of a reliable and uncompromised source of expertise to which we can turn for help with or advice on important social, political, and economic issues and questions, be it the impacts of genetically modified foods or the safety of various drugs and treatments.

In sum then, we have two, rather than just one, valuable public resource being privatized here - both public knowledge and public universities. And the privatization of each reinforces and advances the privatization of the other. The public university cannot be sustained when public knowledge, which is its lifeblood, is diminished. And the commons of knowledge cannot be sustained when there are fewer able and willing contributors to it (both within and outside of the university) than there are exploiters of it.

So how do we help to preserve both the commons of knowledge and our public serving universities? It seems to me that the most effective way to accomplish these twin goals would be to prohibit academics and the university from engaging in the privatization and commercialization of knowledge, either in the service of others or on their own. Instead, all knowledge produced in the university, with either public or private funds, would have to be placed in the public domain. To prevent others from privately appropriating this knowledge, it would need be protected in some ways, such as through mandatory non-exclusive licenses.

Such a strategy would go a long way towards returning our universities to their public service mission. Among other things, it would help free up substantial institutional resources that could be spent on more broadly based and public serving research and other activities; it would delegitimize reduced democracy, transparency, and accountability in academic governance; and it would eliminate the various conflicts of interest and abuses of the public trust that result from the university's involvement in business ventures of others' and their own. This strategy would also go a long way in terms of protecting and revitalizing the commons of knowledge by restoring conditions within the university - and beyond - that promote and facilitate public knowledge production such as open communication of research results, greater research collaboration, and lower research costs. It may also be the case that the university's withdrawal from private knowledge production would increase rather than decrease academics' access to the intellectual property held by others, such as those in the private sector. This is because requests for IP exemptions for the academic community are far more likely to be accepted by companies who need not fear that the knowledge produced using their IP will be privately appropriated by a competitor.

While my proposal seems to fly in the face of current government policy and popular wisdom, the time may actually be quite ripe for it. As evidence of the harms of the university's involvement in IP mounts, a number of groups are becoming more concerned about it. These include students who are suffering from intolerable debt loads, academics whose access to increasingly expensive research materials is being limited, members of university departments and faculties that are being penalized for their inability or unwillingness to engage in private knowledge production, those in the private sector who are being harmed by the patent scope problem and by publicly subsidized competition from university businesses, and citizens who are distressed by the university's apparent willingness to sacrifice the public interest in the pursuit of private profit. Add to this the more general concern about the erosion of the knowledge commons shared by farmers, aboriginal people, environmentalists, health professionals, religious groups, and others, and a potentially powerful coalition to push for an end to the privatization of academic knowledge could be produced. In discussion, we might talk about how such a coalition could be formed and how its agenda might be advanced. Right now, though, I'd like to turn to two potential objections to my proposal and to some questions that I still have about it.

One objection I can foresee has to do with our ability to, and the requirements to, protect academic knowledge so that it may be kept in the public domain. While mandatory non-exclusive licenses would protect academic knowledge from being privately appropriated once it is placed in the public domain, this knowledge is still vulnerable to private appropriation in the production stage be it through industrial espionage, the leaking of research results to the private sector, or by being scooped from academic meetings and conferences. As well, in order to lay claim to academic knowledge in the first place, objectionable practices such as research secrecy, publication delays, and the like would have to be maintained by some academics some of the time. While some of the these concerns may be easily allayed (for example, by requiring all academic conference attendees to sign some kind of non-appropriation agreement) and while some of these concerns may be exaggerated (given that, for example, this new policy is likely to diminish the industrial orientation of academic research), it is true that this strategy cannot ensure that ALL academic knowledge be kept in the public domain or that it be placed there at the optimal time. I welcome your thoughts on whether this is a serious problem and, if so, how it might be resolved.

The second, and main, objection I can foresee is that this strategy is too radical and unrealistic. Objectors are likely to call for less drastic approaches to dealing with the privatization of the university and the commons of knowledge. Thus far, I have not come across any alternative that is able to do the trick. In closing, I would like to briefly mention four alternatives that have been proposed elsewhere and state why I believe they should not be pursued.

The first - and most popular - alternative that people put forward is to attempt to regulate the university's involvement in the privatization of knowledge in order to minimize its harmful impacts, particularly the various scandals and conflicts of interest it has generated. So, for example, there have been numerous calls for policies that mandate academics' full disclosure of potential conflicts of interest, that put limitations on publication delays, that impose restrictions on corporate sponsors' ability to shape research protocols and research papers, etc. While there is nothing inherently wrong with many of these proposals, they ARE very problematic in that they do not acknowledge, much less do anything to resolve, the more serious problems posed by the university's involvement in intellectual property including the skewing of the research agenda, growing managerialism and declining collegialism and institutional democracy, the erosion of the university's public service ethic, and the depletion of the knowledge commons. On the contrary, these proposals make these more serious problems invisible, which serves to perpetuate and to intensify them. Put differently, I think of the strategy of regulation as cutting off the tip of the iceberg of the problems of private ownership in the university, making it more difficult for us to realize that larger problems loom beneath the surface. In providing the illusion that the problems around intellectual property in the university have been taken care of, the strategy of regulation simultaneously reinforces and legitimizes the privatization of both the commons of knowledge and our public universities.

A second alternative that has been put forward is to call for various legal documents and agreements, such as government acts related to higher education or university collective agreements, to be rewritten in ways that oblige universities and academics to prioritize public service and the public interest in all their activities, including knowledge production and transmission. Thus, for example, Jennifer Washburn calls for a reformulation of the Bayh-Dole Act in the United States, in order to make it more difficult for universities and academics to use their intellectual property to promote narrow, private interests and to make it easier for public officials to intervene when they do. While I do not object to this strategy - indeed it could be used to fortify my preferred option - I think it is too soft, fuzzy, and, above all, contestable to accomplish much on its own. This is particularly the case in the current climate where business interests are increasingly equated with the public interest.

A third suggestion is to set up independent, non-profit, third party bodies - on institutional, local, and/or regional levels - that are responsible for all aspects of the privatization and commercialization of academic research, including the distribution of profits to universities, academics, and their corporate partners. One model Washburn offers is the Research Corporation that was set up by Frederick Cottrell in California several decades ago to ensure that neither academics nor universities were corrupted by the commercialization process. Here again this strategy strengthens and legitimizes the privatization of the commons of knowledge. And although it may help to diminish some aspects of the privatization of the university, it leaves others - such as increasing research costs, growing secrecy and competition, and the promotion of a private service, as opposed to a public service, ethic - in tact.

The forth and final suggestion I have come across is to vest all knowledge produced in the university with the state. It would thus be up to government to decide what to do with academic knowledge - when to place it in the public domain, when to make it available through an exclusive license, when to commercialize it itself, etc. While this strategy might go furthest in terms of reversing the privatization of the university - given that the incentive if not pressure to produce industrially oriented and financially lucrative knowledge would be diminished - it is potentially quite problematic nonetheless. Not only is the state unlikely to have the resources and expertise to properly manage huge amounts of academic research, but, in the present context, where private sector priorities and representatives are deeply incorporated into public policy-making processes and bodies, the government is likely to be very aggressive in terms of privatizing and commercializing academic research to the detriment of the knowledge commons.

While I therefore also reject this option, it does raise the key questions of how academic knowledge is to be put in the public domain and who is to make those decisions. Will we have a one-size-fits-all formula such as mandatory non-exclusive licenses across the board? Will we use a variety of tools that keep knowledge in the public domain (including GPL licenses)? And will ANY privatization or commercialization be allowed and under what circumstances? Further, who will decide what approach to use and when? Will it be academic researchers, university administrators, local bureaucrats, citizen councils, various combinations of these, etc? It seems to me that these are the key questions that we need to work through, assuming that we agree to prohibit the university's involvement in private knowledge production. I look forward to our addressing these questions in this session's discussion and beyond.