Jeremy Loeb is a JD candidate at Osgoode Hall Law School, who is spending part of the summer completing the summer law program in International law at the Queen’s University Bader International Studies Center in Herstmonceux, UK. He is currently writing from Paris, France.
It has been nearly one month since the British took a brief respite to recognize and celebrate the royal wedding, but it has not been quickly forgotten that less than half a year ago students in England were doing more damage to the royals than they were rejoicing in their presence. The student protests of last year, and the anger surrounding the further privatization of institutes of higher education, continues to be a contentious issue in the UK as evidenced by daily news reports citing the battleground.
The recent tuition changes legislated in the UK have increased the need for universities to find new sources of revenue. Parliament’s December 2010 decision to allow significant university tuition fee increases in England is not unique amongst modern education policy in western nations and the further privatization of education systems has underpinned many intriguing issues related to intellectual property law.
The search for private revenue means that cashed strapped universities have been forced to explore their IP policies for new ways to generate income to keep up with the global education marketplace. In the UK, this has lead to a new government report entitled, Intellectual Asset Management for Universities. The Report received mixed reviews this month by the Intellectual Property Office (IPO), the official body responsible for IP rights in the UK. Intellectual Asset Management for Universities advises higher education decision makers on IP strategy in order to monetize and take advantage of the intellectual property content being produced in their institutions.
One of the main suggestions in the Report is that academics should patent new research before publication to increase universities’ revenue and promote their local economies through patent protections. This is tantamount to public policy reform suggesting that universities need to operate policies that benefit the financial health of the institution, as well as the greater economy, which is a far cry from the historical academic mission statement that purports the quest for knowledge as the first priority. This policy is also contrary to the open access movement which pushes for academic knowledge to be accessible to all and for the common good. This open access movement is most recently exemplified in academia by MIT’s Open Courseware initiative. Furthermore, at least one commentator believes that the IPO report should have gone even further and involved private business in developing the IPO report. This raises greater questions of the changing nature of the education industry and the implications for IP law as the pressure mounts from governments, private industry and other actors to maximize the IP monetization potential of these institutions.
While universities and research communities have a huge incentive to monetize their intellectual property, academics and students often have their own ideas about the IP created in their institutions and how it is regulated. Academics often want access to source materials, databases, and the output of others, while at the same time they would like to monetize their own work for their own benefit. University researchers often enjoy the benefits of partnerships with their home institutions because their institution usually covers the cost of launching intellectual property protection, including the high cost of patent registration. This aside, the academic community’s incentives are to some extent in direct conflict with the IPO recommendations. Furthermore, the issue of content ownership in this industry conflates the complexity facing academic institutions when developing IP policy.
According to Marshall Leaffer, an IP law professor at the University of Indiana (and someone whom I heard lecture recently), there are conflicting incentives for both academics and universities in implementing IP ownership rights. For example, if a university decides to annex all of the ownership value of the IP created by its professors, that institution may reap short-term monetary rewards, but soon find that academics shun that institution as a potential research partner willing to share IP value in good faith. Leaffer suggest that, as it stands, nothing prevents universities from annexing this IP value. As universities come to grips with the trend of diminished public funding, they will have to create answers to find the right balance regarding the intellectual property created within their walls.
In conclusion, IP law generally continues to be an expanding area of legal regimes globally. The growth in the internet, global health services, food supplies and biotech have all impacted on the increasing importance of developing IP laws. Traditionally it has been the large multinational and global corporations that have had an interest in pushing IP law forward both domestically and internationally through harmonized law, however, it seems likely that the research communities including universities and academics are joining this group in a race to protect value and monetize. Certainly there have been calls for the need for even greater deference amongst the academic community to develop IP regimes in congruence and conjunction with business interests. This ties into one of the main challenges facing IP legal regimes which is balancing the conflicting interests of disseminating information for societal value while maintaining the incentive to create. This debate is now being applied to the education industry in the UK and it is unlikely to go away quietly.