Should intellectual property be owned?

By Daniel Georgianna

Our local, the University of Massachusetts Faculty Federation, working with the faculty union at the University of Massachusetts-Amherst, was among the first to negotiate language that retains faculty ownership of intellectual property. The UMass administration wanted our recognition of its right to commercial ventures using patents shared between researchers and the university, and faculty wanted clear claim to ownership of their scholarship.

According to our contract, "the university waives all ownership interests in scholarly works." We specify the works in a long list that includes almost every possible activity in teaching and scholarship. We extended this language to include ownership of online courses and course material.

Our contract language has been considered among the best in the country, and the AFT higher education department often sends examples from our contracts to locals requesting effective intellectual property language.

Other than some complaints from research faculty that the administration has mishandled patent requests, we haven't heard much from our members about intellectual property. The administration hasn't sold anyone's scholarly work to anyone, and our fear that online courses would spread to threaten classroom instruction hasn't happened--at least not yet.

UMass OnLine, the distance learning division of UMass, hasn't paid faculty large sums to develop online courses for mass production and then hired adjuncts at cut-rate prices to teach them. Faculty creating online courses seem satisfied with moderate payments for developing and teaching their own courses.

So why do I wake in the middle of the night worrying about intellectual property issues?

I worry about long-term trends: universities as corporations selling knowledge or credentials, and faculty and staff as workers producing knowledge. Intellectual property, whoever owns it, is a big step in this direction.

Property is not a thing; it is a relationship that can be sold. Its value depends upon who can best profit from its exclusive use. While its current owner wants it for his or her benefit, property calls out to higher bidders, who usually claim it, if the market functions efficiently.

In other words, it doesn't matter who owns intellectual property; it will eventually end up in its most profitable use. For me, the problem is not ownership of intellectual property, but its existence--the relationship that regards knowledge as a commodity.

Ownership of intellectual property looks like protection for faculty members who own it. I worry that it is anything but that. In other fields like music, writing and art, intellectual property has become a device used by publishers and other owners to separate creators from their work.

Academic freedom was the basis for excepting faculty from the usual practice that work done by employees belongs to the firm that employs them. Professors were regarded as knowledge owners rather than knowledge workers, who needed both the freedom to explore ideas and the ownership of their results. They were expected to share this knowledge with students and colleagues in teaching and learning.

More than 25 years ago, I chose common property relations as my field of specialization. I have traveled across the United States and around the world studying common property under different conditions. I use the knowledge of common property that I have developed while employed by UMass to teach, write, lecture and negotiate collective bargaining contracts whenever and wherever I like. My university has never restricted me in any of these activities. In fact, it has promoted me for them. I am only expected to share my knowledge with students and the public in the name of the university.

Academic freedom has been a good deal.

What would happen to academic freedom when scholarship and teaching become property, especially property owned by faculty, who can and do sell it to the highest bidder? What would separate professors from other employees, or even worse, from consultants for hire by colleges and universities?

As Corynne McSherry writes in Who Owns Academic Work? Battling for Control of Intellectual Property (Harvard University Press, 2001): "In fact, the academic exceptions may actually reinforce a vision of academic freedom organized around market principles and, by extension, the very commodification of learning that the professoriate may want to challenge."

Of course, assigning ownership of teaching and scholarly works to the administration is no better, and probably far worse, than negotiating language that assigns ownership to the faculty members who created it. I am not looking to give up our contract language. Rather, I am suggesting that we focus on collective control of teaching and scholarship, old-fashioned union values.

If you listen closely to faculty, they are not saying that they want to own intellectual property in order to sell it; they want to own it in order to control it.