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Tuesday, 15 October 2002. A Discussion was held in the Senate-House of the following Reports:
Joint Report of the Council and the General Board, dated 22 July and 10 July 2002, on the ownership of intellectual property rights (Reporter, 2001-02, p. 1268).
Statement by the COUNCIL (read by Dr D. R. J. LAMING):
The Council are aware that there has been a great deal of discussion of this Report since it was published.
The Council are also aware that different interpretations of this Report have been made, which has caused some misunderstandings.
The Council wish to put on the record that their intention is not to assert ownership of copyright in lecture notes or books except where explicitly agreed as part of a commissioning process, for example as might occur for creation of material for e-learning.
The Council in no way wish to prevent inventors from placing IPR in the public domain.
Professor A. MINSON:
Mr Deputy Vice-Chancellor, when I signed this Report as a member of the General Board it appeared to me to be a rather straightforward policy proposal which resolved anomalies in our current practice. Despite the heated debate that has resulted, I remain of the same fundamental opinion.
I have been involved in patenting and licensing of IPR on a number of occasions and it has always struck me as odd that if my research is performed in the University is funded by the Medical Research Council then the University owns any resulting IPR; if the research is funded by a medical charity then I, as the principal investigator, and the University as the award holder, are obliged to treat IPR in accordance with the policy of that charity. If, however, I use University facilities and University funds to conduct my research then I am free to exploit that research for my own personal financial benefit and I am under no obligation to tell my colleagues, my Head of Department, or anyone else in the University what I am doing, or even to disclose the existence of this intellectual property.
This practice does not seem to me to be reasonable, consistent, or defendable. The new proposal attempts to resolve this anomaly and to provide a consistent policy which retains substantial incentive for inventors while bringing our University into line with every other university in the UK. Of course, Cambridge does not have to be like other universities, but in the matter of IPR I certainly haven't heard arguments that convince me that every other university in the country, including Oxford, UCL, and Imperial, has got it wrong.
During the past few months there has been an impassioned debate in which two major issues have surfaced. That debate has not changed my view of the need for the proposed policy, but it has indicated that the policy statement needs some redrafting in order to meet the concerns expressed. The first issue concerns 'control' of knowledge. Some members have argued that the decision to exploit an invention must lie with the academic. I absolutely agree and, as I understand it, the proposed policy is consistent with control by the inventor. There are two reasons. The first is pragmatic, and is that to exploit knowledge against the wishes of the inventor would be extremely difficult. Indeed it would be futile to try. The second reason is more fundamental and that is that an inventor can choose to place the results of research in the public domain. The Report asserts the right of academics to publish the results of their research and in signing the Report I was clear that the term 'publish' was to be interpreted broadly. Members of the University have the right to place the results of their research or scholarship in the public domain by any mechanism, and the corollary is that the decision to exploit commercially is in the hands of the inventor. The policy statement should perhaps be modified to make this explicit.
The second issue concerns the ownership of copyright on published work. In referring to 'normal forms of academic publication' I, and I am sure my colleagues on the General Board, meant all forms of published work including books, pamphlets, lectures, lecture notes, etc. In other words, the policy was meant to be entirely consistent with the recommendations of the Cornish Report on Copyright. Perhaps this also needs to be made explicit.
A further criticism I have heard is that the University is being 'greedy' in claiming ownership of IPR. This presumably implies that every other university in the UK is 'greedy'. More to the point is what I can best describe as natural justice. I conduct research using University facilities and, crucially, in the fertile intellectual environment provided by my colleagues. The name of the University adds credibility to my work. It is surely right that if I wish the results of my research to be exploited commercially, then I should be required to share the rewards with my colleagues - that is with the University as a whole.
We all recognize that our University is in financial difficulties. Of course, we all want to blame someone else but the reality is that the reasons are many and they reach into every corner of the University. Whatever the reasons for our financial situation, many of our traditions are threatened by it, not least the style and quality of our teaching. Financial gain is not the primary reason for the proposed new policy on IPR. The main purpose is to have consistent, transparent, fair, and defendable practices with respect to IPR and commercial exploitation. But if this policy also enhances University income then I for one would welcome it.
Dr R. ANDERSON:
Deputy Vice-Chancellor, until now, academics at Cambridge have enjoyed ownership of all our intellectual property rights, with a few narrow exceptions. With this Report, the University proposes to take ownership of all these rights, with a few narrow exceptions.
I cannot believe that members of Council and the General Board were properly briefed on the scope and effect of this change.
Intellectual property rights are not limited to patents. I have copyright in the scientific papers I write, in my lecture notes, and in the act of delivering lectures. I have copyright in the minutes I take of seminars, in laboratory records, in archives of electronic mail. I have copyright in my musical compositions, and in every performance of my own compositions, and every time I play a tune by somebody else. I have copyright when I make a political speech, in my capacity as the chairman of the Foundation for Information Policy Research. I have copyright in software that I write, and in modifications I make to other people's software. I have copyright in photographs that I take. I have copyright in my Web page.
Then there are database rights, which protect directories, indexes, or compilations. I have database rights in my Web page, and in the Information Hiding bibliography. There are semiconductor design rights, which affect the G3Card project on which I am a principal investigator. There are trade secrets of various kinds. There are lawyers busy creating an intellectual property right out of the human personality, in order to protect the endorsement income enjoyed by celebrities. Finally, there are various rights that concern people in other disciplines, such as plant breeders' rights.
For the University to lay claim to all the intellectual property rights relating to my employment is simply breathtaking.
Claiming all copyright, with a narrow research exception, has unacceptable effects on academic freedom. On the face of it, the policy claims all creative expression that is not narrowly academic; as drafted, popular books and speeches fall within its remit. So controversial ideas could be suppressed. I have direct experience of academic censorship, having been on the program committee of the Information Hiding workshop that accepted the Felten paper, which the Recording Industry Association of America tried to suppress. Other examples might include an economist criticizing a policy dear to the government of the day, or an English lecturer who writes a novel attacked by religious extremists. It is for this reason that the Cornish report earlier this year described academic ownership of copyright as 'an important guarantee of academic freedom' and strongly recommended that 'No change should be made to this basic rule.' The Vice-Chancellor has completely failed to explain what made the University change its mind on this issue.
Our research effectiveness is also under threat. In computer science, for example, we often exchange fragments of software with colleagues and collaborators in other institutions. Recently, there was a proposal in the Export Bill that export licensing should extend to the electronic transmission overseas of software relating to technologies whose physical export is controlled. This would have had disastrous effects on academia, as it would have made many academic exchanges in science, technology, and medicine subject to oversight and licensing by the DTI. Because of its likely severe effect on my own work, I helped Universities UK and the AUT in a joint campaign against the licensing of academic exchanges; we persuaded the House of Lords to insert a research exemption in the Bill by a large majority. The Vice-Chancellor gave us some assistance in that campaign. Yet this new proposal will create many of the same problems. Now the Vice-Chancellor states in the Times Higher Education Supplement that all exchanges and gifts of software must in future be subject to contracts supervised by RSD. Instead of being chastized with whips, we are to be chastized with scorpions.
Teaching will also suffer. Over the years, I worked up my lecture notes with a view to turning them into a textbook. Two years ago, I did so. My publisher now wants me to produce a second edition. Yet lecture notes fall under the new policy as 'material commissioned by the University'; we are told the University must own them, in case at some time in the future the Administration decides to set up a company selling 'e-learning services', whatever those are. So where will be the incentive for University Teaching Officers to produce decent lecture notes in the future? And what will the University get in return for so damaging our teaching, and alienating the teaching staff? My book is only selling 5,000 copies a year - not the kind of money that will make up for our Administration's spendthrift ways.
There are many other ways in which particular disciplines, and particular individuals, will be harmed. We have gathered together some examples on the Web pages of the Campaign for Cambridge Freedoms, and we will no doubt hear of more examples shortly.
So it is essential that this policy be withdrawn, and if the Council is so foolish as to propose it as a Grace then this House must defeat it. However, that will not in itself be sufficient.
Last week, it came to my attention that this House passed a Grace, number 6 of 30 March 2001, whose effect was that from the first of October this year - from two weeks ago - the University has been asserting a claim on all intellectual property arising from externally funded research.
This claim uses the same broad language as the policy now under discussion; it claims not just patents, but database rights, semiconductor design rights, performance rights, e-mails, lab notebooks, and everything else following from externally funded research (with a narrow exception for research publications).
Let me spell out to this House what that means.
If you are a Professor of Divinity, and you travelled up to Coventry last Sunday to preach a sermon, and you paid your train fare from a Leverhulme Trust grant you have, then the University of Cambridge now owns the copyright in your sermon. If you were so foolish as to sing along with the hymns, the Cathedral would now require RSD's permission before they could incorporate that performance of the hymns into a charity CD.
If you are a zoology Lecturer, sequencing DNA using money from a medical charity, and contributing your sequence data to public domain databases in the honest belief that you are entitled to put your results into the public domain, then since two weeks ago you have been mistaken. The University of Cambridge now claims the database rights in your work. Whether the Vice-Chancellor says he intended to do this, or that he never intended to do it, is irrelevant. Should the University's rights in your work find their way into the market at some future time - under a future administration, or following the insolvency of CUTS, or as a result of the University selling off its intellectual property in bulk, as Imperial has done - then such assurances will be of no value. The database rights could well be purchased by a Craig Venter, or some other entrepreneur with an interest in mounting a legal challenge to the public domain status of genomic databases. The results could be catastrophic.
I greatly regret that I did not notice Grace 6 as it was going through. Regular members of this House will know that I am not among their number; this is only the third time I have spoken here in seven years as a University Teaching Officer. Had I - or anyone else familiar with intellectual property law - called attention to the problems at the time, I am quite certain that it would not have passed. As it is, this Grace must be repealed, and the University must also disgorge all the rights acquired thereby, with an effect that is fully retrospective.
If we do not undo this error, then as time goes on, more and more of the intellectual property generated by Cambridge Faculty members will be contaminated, with broader effects that can only be guessed at. The narrower effect will be to create a severe disincentive for Faculty members to seek external funding of any kind. The only path open to most of us will be to advise our external funders that financial support for our research groups should not be paid in the form of grants or donations, but as consultancy payments made direct to the individuals concerned. Is this really what Council intended?
Finally, a word on economics. There are three main interests in play here: the academic staff, the University as a corporate entity, and the broader community. It is clear that the effects of the policy on us, the staff, will be profoundly negative; we are being expropriated. Can the policy be justified, however, by claims that it will do greater good to a greater number?
This is most unlikely. The University, by ploughing millions of pounds annually into a new Technology Transfer Office, is in effect setting up a venture capital company. Even if this were an appropriate time in the business cycle for equity investment, and even if it were prudent for the University to bet the farm on venture capital rather than blue chips, this is not the way to do things. Experience matters, with V-Cs as with other business. We would be better off investing in established firms, of which there are ten with offices in the Cambridge area already. It is in any case better for academics with start-up ideas to be able to approach established sources of finance. I can see no realistic prospect of a large return on our TTO investment. And there is a real and present danger - that its employees will be driven to ever more desperate attempts to tax us in order to pay their salaries and justify their existence.
The likely effects on the wider community are also negative. There is a substantial economic literature on technology transfer from universities, as US law has encouraged this for over twenty years and there is now a lot of data about American outcomes. The most important papers - which are linked from, and summarized in, the Campaign's Web pages - support the view that liberal policies on intellectual property encourage the creation of spin-out companies. The definitive local study of the Cambridge Phenomenon, by Segal, Quince, and Wicksteed, also provides extremely strong support for this. The Report of the Council, however, proposes to replace our current successful laissez-faire arrangements with a centralized bureaucracy. The likely outcome is to kill the goose that lays the gold eggs.
Deputy Vice-Chancellor, our message for Council is this: Cambridge isn't broken - don't try to fix it!
Professor D. NEWBERY (read by Dr R. ANDERSON):
Mr Deputy Vice-Chancellor, I speak as an economist and as a member of the Faculty Board of Economics and Politics. The Faculty Board met yesterday, Monday, 14 October, and discussed this Report. They unanimously and strongly endorsed the position that ownership of IPR should remain with their author or authors except where the author(s) have agreed to assign it elsewhere (for example, as part of the conditions attaching to receiving research support). They were also sceptical of the wisdom of expanding the bureaucracy to commercialize IP, and very opposed to granting it monopsony powers, given the considerable number of other agencies that have more experience in this field. They did not have time to produce an agreed position reflecting all the views expressed, and so the remainder of this speech represents my own views, though there was no dissent to them when I expressed them at the Faculty Board meeting.
One of the major concerns facing the Faculty, and surely the University as a whole, is our ability to recruit world-class academics at less than world-class salaries. Until now, one of the compensations offered by this University is a relaxed attitude to IPR, complete freedom to publish, and a collegial atmosphere in which academics are encouraged to pursue knowledge without being subject to excessive bureaucratic and commercial pressures. The present proposal is so worded that most of this now appears to be under threat. If other British universities and even American universities choose to handicap their mission with onerous claims on the originality of their Faculty (note, I do not use the unappealing description 'employees') then we should rejoice and attempt to entice away their brightest and best. We should not be leading the herd in this poorly-conceived, badly drafted, and antagonistic proposal.
The Report itself contains serious inconsistencies. Paragraph 11 states that 'MIT and Stanford in the US, and UMIST in the UK, have intellectual property policies that leave the ownership of intellectual property not generated from research funded by external bodies with individuals (emphasis added), unless substantial or significant use of the university's own resources were made in its creation.' 'Substantial or significant use' is glossed and deemed to exclude routine use of PCs, offices, libraries, etc. That sounds a considerably more intelligent approach than the one on offer, and contradicts statements that our policy will align us with MIT's IPR policy.
Immediately following this paragraph, the Council and General Board recommend that the University assert ownership of all intellectual property created after 1 January 2003. It seems illogical that we should thereby depart from the practice of leading American universities, who have considered this matter long and hard, and have carefully decided to allow academics to retain ownership of intellectual property except that specifically excluded.
The proposal will have particularly adverse impacts on the Economics Faculty for the following reasons. Although we are unlikely to patent technology, a number of Faculty members have successfully written and commercialized software, and this activity appears to be under threat. In addition, those of us who write software for public use will now have to submit it for scrutiny and possible control by the University.
Many of us write books, and although we may not aspire to the success of A Brief History of Time, or those of our counterparts in the History Faculty, it is worth remembering that successful economics textbooks that are well targeted on the American undergraduate market can produce royalties running into seven figures. A distinguished Canadian economist, Richard Lipsey, moved to Ireland because of the favourable tax régime on the royalties of his textbook. We surely would not wish to discourage either existing Faculty members or potential hires from the considerable effort that writing a successful textbook entails, and which may at present be compensated by the small chance of a large prize.
If the University feels under pressure from the Government or DTI to pursue this policy, then we need to point to the inconsistency in their approach to stimulating technology transfer. Quite apart from the problems of overcoming market failures in the production of research, the Government already enjoys marginal taxes (income and expenditure) at the rate of over 50% on income from patents, copyright, royalties, and consulting. The University's proposed marginal rate is 67%, before the Inland Revenue takes its slice, so the effective marginal tax rate would then be 83%. To increase the present tax rate by up to a further two thirds implies a degree of discouragement that is surely not in the interest of a Government publicly committed to improving our competitive performance.
The University should maintain that its prime purpose is to produce research that is a public good, and therefore as widely available as possible. If it is also commercially valuable, one would expect specialized and competent agencies to offer to commercialize this in collaboration with University members. Where the University already has the IPR by virtue of prior agreement under funding arrangements, no doubt they could also make use of such agencies. The Government seems keen to encourage entrepreneurs to commercialize valuable IPR, and should not chill the process by forcing academics to hand over their IPR without consultation or discussion, or agreeing acceptable terms.
There is a further reason for disquiet of direct interest to economists. The University wishes to control all intellectual property and is rapidly expanding its bureaucracy to manage this. The Technology Transfer Office of the Research Services Division seems to have added a dozen people and is probably spending over one million pounds a year. We do not have any information about the additional income that this increased level of activity has created. Economists are sceptical about monopolies, and would expect that a bureaucratic organization would be not particularly well suited to maximize the benefits from its intellectual property. It is likely to be more effective to allow those holders of intellectual property to choose their partners and not be forced to supply to a monopsony buyer whose interests may not be sufficiently well aligned with those of the IP producer (and therefore the University). Competition between commercializing organizations is surely preferable to the proposed monopsony.
Finally, there is an issue of trust. Cambridge academics are not particularly well paid. The analogy between us and employees of Microsoft in terms of ownership of IP is inappropriate given the disparity of rewards. The result of this Report is likely to make a large number of people mistrustful of the University, antagonistic to its policies, and in some cases, prepared to resign. It will hinder our ability to recruit, and undermine the bond of trust and collegiality that distinguishes the University from commercial employment.
It would probably be more profitable for the University to retain that sense of trust and loyalty, and create the expectation that truly successful entrepreneurs will wish to voluntarily share their rewards with the University. That seems to be the approach on the other side of the Atlantic, and is handsomely illustrated by the Judge Institute and the new Mathematical buildings. Taxation instead of willing co-operation is likely to be counter-productive.
Professor S. DEAKIN (read by Dr R. ANDERSON):
Mr Deputy Vice-Chancellor, the proposed policy on IPR envisages a fundamental change to the terms and conditions of employment of academic staff at Cambridge. The policy until now has been for 'residual' IPR (that is to say, IPR not covered by the terms of an external grant) to vest in the individuals who created it. The new policy will vest all IPR except certain forms of copyright in the University. The scope of the exception made for copyright, namely that individuals will retain ownership over 'normal academic forms of publication including books, articles and lectures' is undermined by the proviso that the University will claim rights over works which it has 'commissioned'. On the face of it, the proviso could include lectures which are delivered as part of a degree course. The University could therefore claim copyright in books based in whole or in part on lecture courses. It could also restrict the use of lecture materials outside the University. Does the University commission research? This is less clear, but it would be surprising if there were no contractual obligation on academic staff to carry out research with a view to publishing the results, given the need to obtain high scores in the RAE. In that sense, the University requires its academic staff to produce, through research, works capable of giving rise to copyright.
It has been said that the University does not intend to claim rights over lectures, books, and academic journal articles. However, because the current proposal, with its open-ended drafting, is meant to take effect through a variation of the terms and conditions of employment of University employees, it would be in a position to make such claims at any point after that variation comes into force.
The mechanism by which the intended variation of terms and conditions would take place is an amendment of the University's Statutes and Ordinances. The Joint Report, referring to an opinion of legal counsel, asserts that contracts of employment are subject to Statutes and Ordinances. A change in the legal position can be brought about, according to the Joint Report, by a change in policy which is then embodied in Statutes and Ordinances. By this route the proposed change would affect all employees and not just those employed or promoted from 1998 onwards, when the standard-form written statements of terms and conditions of employment were altered with the aim of incorporating by reference the 'University's policy on Intellectual Property Rights as may be decided by the Regent House from time to time' (see paras. 9 and 10 of the Joint Report.)
The proposal to embody the University's IPR policy in its Statutes is welcome. This step was also recommended by the Joint Working Party on Copyright which reported in 2001 (Reporter, 17 October 2001). However, in this respect the substance of the policy proposed by the Copyright Working Party was the opposite of that now advanced by the Council and General Board. The Working Party referred to the widely held view that 'academic employment contracts contain an implied term reserving copyright in general to the individual employee', and went on (at para. 4.1.3): '[t]his term is not one which the University could alter unilaterally: it can do so only by agreement. In the Working Party's view there are fundamental reasons why the University should not attempt to alter the present contractual understanding. Indeed, that understanding should be made explicit'. Far from confirming that understanding, the new policy would explicitly reverse it.
It is worth revisiting the reasons given by the Copyright Working Party for arriving at their conclusion. The normal rule, that copyright in works created in the course of employment vests in the employer, is set aside in the University context because academic work rests on 'the freedom to pursue lines of inquiry and to express opinions without fear or favour'. If the University were to claim copyright, it could withhold permission to publish particular works, or insist that they be modified, truncated, or supplemented. The Working Party noted that this practice could well be contrary to the European Convention on Human Rights and to the Human Rights Act 1998.
In the view of some, copyright is a special case; patents and other forms of IPR give rise to different issues. However, academic autonomy and freedom of expression are relevant in the case of patents too, as Cambridge's own practice has until now acknowledged. In 1977 a CVCP Working Party on Patents and the Commercial Exploitation of Research Results considered the issue of inventions of university employees. The CVCP Working Party believed that such inventions would normally be the property of the employer and made a number of related proposals for alterations to academic contracts of employment which would reflect this view. On 25 November 1977 the then Vice-Chancellor, Alan Cottrell, wrote to the CVCP, rejecting the conclusions of the Working Party which he called 'wrong in principle and unworkable in practice'. His letter stated: '[a]cademic staff in Cambridge are under contract to devote themselves to the advancement of the subject, to give instruction to students, and to promote the interests of the University as a place of education, learning, and research. Such a contract recognizes the basic principles of academic freedom. Cambridge is unwilling to adopt a more restrictive form of contract, as suggested [by the CVCP Working Party].' He continued: 'Freedom of expression is fundamental to universities and the University would be unwilling to put any constraint on an individual who may wish to publish the results of his work on the grounds that the University rather than the researcher wished to explore the possibility of obtaining a patent, as is recommended by the Working Party'.
The view of 1977 need not, of course, be the view of 2002. It is, however, important in helping us to see how and why we arrived at our current position, and what the effects of changing it might be. It has been suggested that the present situation is 'uncertain', 'complex', 'confusing', and 'inconsistent'. In truth, the policy has until recently been crystal clear: it is to elevate the autonomy and freedom of expression of academic staff above all other concerns, including the degree of control which the University is able to exercise over the commercial use and exploitation of the intellectual capital which is created here. In the view of many, this policy has served both the University and the Cambridge economy well. The independence of thought and action allowed to academic staff within the setting of the University has spilled over into local high-technology enterprise, stimulating employment, and economic growth.
For these reasons I believe that further reflection is needed in striking the right balance between the University's financial interests and the autonomy of its academic members. While every effort should be made to encourage income sharing, where appropriate, between the University and individual faculty, we should begin from the position that residual IPR remains with the creator of the work. As a guiding principle, I would suggest the following: ownership of IPR in work arising from the performance of the normal academic duties of teaching and research vests in each case in the author or authors of that work, that is to say, the individual employees concerned, subject to any special arrangements which may be made for the exploitation of the work with an external research sponsor or with the University.
Professor R. FRIEND:
Mr Deputy Vice-Chancellor, I share the Council and General Board's aspiration to improve the University's ability to transfer technology so that it is exploited effectively, and so that the University is a direct beneficiary. This will bring clear benefit to the University: beyond its direct return from the exploitation, this underpins the University's standing as a generator of economic activity, and strengthens the University's standing with Government and with Industry.
There is however an inevitable conflict between the requirements of a structure that will achieve this with maximum efficiency (appropriate in an industrial organization) and the guaranteeing of academic freedom to individual staff members in the University. This Report brings this conflict to our attention, and reveals to me the complexity of this inter-relationship. Its recommendations have sweeping implications for many aspects of University activity, and we need to understand what these are. I address my remarks to three aspects:
'Profit sharing' between inventor and University.
The three-way split of revenue between inventor, Department, and University dates back to 1987 when it was introduced as a guideline for fair distribution of revenue. I see this to be wholly reasonable. My understanding is that when the technology transferred has involved significant work within a Department, and has been protected by patents, this guideline has been used effectively. This was certainly the case for the two companies that I have been involved in founding (Cambridge Display Technology Ltd in 1992 and Plastic Logic Ltd in 2000), in which the University has substantial equity (some of which has been realized, in the case of Cambridge Display Technology). (As a matter of practical reality, it is impossible to raise money against the value of a patent unless the ownership of the patent is undisputed, and potential funders have always checked the University's interest.)
I do not see that the proposed changes to IPR ownership will make much difference for the 'profit sharing' of patented technology, because the present system is doing this job already.
I have no direct familiarity with the situation where technology is protected through copyright rather than patents, but because there is no formal process required to claim copyright, I can imagine that this area is more fraught.
The breakdown of various types of Intellectual Property (IPR).
The Report seems to presume that there is a clear distinction between different categories of intellectual property: inventions (protected by patents) in contrast to scholarship (protected by copyright). This is not the case. Intellectual property, the fruit of our efforts, is not cleanly separable. Aspects of it may be protected using these different mechanisms, but the same piece of work can simultaneously be protected by patenting and by copyright.
My reading of the Report's recommendations is that by taking ownership of 'all intellectual property' the University will take ownership of all intellectual property - including patents and copyright. I do not see how this can be consistent with recommendation 4 of the Joint Working Party on Copyright 'The long-established practice - an important guarantee of academic freedom - is that copyright in works created by an academic staff member belongs initially to the individual … No change should be made to this basic rule'.
These recommendations would replace our undisputed ownership of copyright by a statement of policy that the University will not claim copyright to 'normal academic forms of publication'. It leaves open how the University will interpret what 'normal academic forms of publication' are, and, more importantly, may become in the future. For example, do the Council and the General Board have a clear view about electronic forms of publication?
The entrepreneurial environment
I have been pleased to see the recent expansion of activities in the Research Services Division, and have appreciated the improved level of support for my own activities. I am sure that because an excellent service is provided, many who might not have bothered to exploit in the past, will find it easy to do so in the future. This is of course supported by the Challenge Fund and the Cambridge Entrepreneurship Centre.
The purpose of this support, however, must be to get technology out of the University as fast as possible before it runs up substantial real costs, for example patenting at the second filing stage (the University will never be as hard-nosed about a commercial proposition as for example a Venture Capital Fund). Mechanisms for 'exploitation' will vary from one opportunity to the next, and the best solutions may well arise outside the experience and competence of the Research Services Division. I consider that placing Research Services as both custodian of the IPR and at the same time allowing it to compete with other providers of support for technology transfer is undesirable.
The proposed change to IPR ownership may also cause the University to change its relationships with large companies. IPR ownership by individual staff members has provided one of the important checks and balances for the embedded laboratories now set up in a number of University Departments. The University should never be in a position where it could sell the futures for an individual staff member over his or her head, and I note that in universities which do own IPR, (for example in the USA), such embedded laboratories are not countenanced.
In summary, I have reservations about these proposed changes to IPR ownership. I fear that they will have unexpected implications. Although couched in terms that concern 'inventions', their impact is much wider. It is very hard to be asked to look just at 'inventions'. The Council and the General Board should come back with a Report that deals with all aspects, including Copyright (do the Council and General Board endorse the recommendations of the Joint Working Party on Copyright?).
Sir John SULSTON (read by Professor M. ASHBURNER):
Mr Deputy Vice-Chancellor, it seems to me that the Report is pursuing, and confusing, two quite separate goals.
The first is the notion that those who use University resources to generate profit should be taxed in some way. This is entirely reasonable, and paragraph 11 describes ways in which this can be achieved.
The second is for the University to assert ownership of intellectual property generated by its members. This policy is unnecessary to achieve the first goal. Furthermore, it centralizes control, and the limits (paragraph 8) are loosely worded. Consequently, whatever the intentions of the General Board at present, it may easily lead to loss of academic freedom in the future.
We live in times when all intellectual freedoms are being challenged and eroded. What is the purpose of a great university if not to protect those freedoms?
Professor M. ASHBURNER:
Mr Deputy Vice-Chancellor, rarely have we seen such a badly drafted Report to the University, and such a campaign of 'spin' to try and convince us that our fears concerning its content are groundless and others that those that oppose this Report are acting solely out of financial self interest. If nothing else, I hope that this Discussion will emphasize the desirability of wide, and open, consultation before publishing a Report such as this, whose recommendations will be felt throughout the University. 'Informal discussions' with the 'relevant Councils of the Schools' are simply not good enough.
It is now widely accepted that the Report, and its Annex, are, at best, ambiguous. The 'Statement of Policy' says that all 'IPR arising from intellectual property ... will be owned by the University' from 1 January 2003. The definition of IPR makes it clear that this includes not only patents, but also 'confidential information' (and I take this to mean my laboratory notebooks - will I not be allowed to take these with me when I move to the US?) and copyright of designs, software, and their documentation. It excludes 'copyright in normal academic forms of publication' - without distinguishing the normal from the abnormal - unless such works have been 'commissioned' by a sponsor or the University - without defining the meaning of the word 'commissioned'. These are some of the reasons why this Report has had such a hostile reception from so many across such a broad range of disciplines.
There are other reasons for this hostility. I will mention but one: there is a common perception that the real purpose of this Report is to prepare the stage so that the University can mortgage its intellectual property, in return for a substantial payment by an investment company. Such contracts are by no means unknown, elsewhere in the UK (e.g. at Imperial1 and in Oxford2) and in the USA. Indeed, the University has already accepted funds from a company for at least one new institute under the condition, I am led to believe, that the company owns the institute's IPR for a certain number of years. I also understand that this had the inevitable result that the search to fill the Chair associated with this institute was compromised. I can see no better way of destroying the intellectual integrity of the University than following this path. I, at least, would welcome a strong and unambiguous statement that my fears that the University is exploring the option of mortgaging our IP are groundless, and that investment companies are not included within the 'other third parties' of paragraph 15 of the Report.
But to return to the here and now. I will give three examples in which I simply do not know where I will stand after the first of next year, were recommendations of this Report to be accepted by the University. These are not difficult issues, and the lack of clarity in the Report (and its Annex) can only be because those that drafted it had not fully thought through its implications.
Along with many colleagues in the University my research group sequences DNA. For the last twenty years it has been a requirement that such sequences are submitted into a public database before they can be discussed in a scientific paper. This database is about as public as could be: you, Mr Deputy Vice-Chancellor, could download its entire contents (and these include the complete sequence of the human genome), wrap them up in pink ribbon, and, if you could find any one stupid enough to do a deal with, sell it them. The only requirement is that you would have to acknowledge the source of the data. Whether or not these data are 'rights' 'capable of registration' will I, and my colleagues, now be required to obtain the consent of the Research Services Division before submitting data to this database? I trust the answer will be 'no' - but my point is that the stated policy is ambiguous, to say the least.
My second is also drawn from my own work. I have, for a decade or more, spent much of my time constructing databases for biologists. Indeed I have a group of over ten people in the University and a further five at the European Bioinformatics Institute who do this work full-time. We are funded (largely by the US National Institutes of Health and the Wellcome Trust) to make these databases public: these databases are freely available to both academia and commerce without licence. Is the University of Cambridge now going to claim ownership of the copyright of the database I produce from my Department ? Or is the production and free dissemination of such databases a 'normal academic form of publication'? I simply cannot tell from the Report.
My third fear is closely connected with the production and dissemination of databases: it concerns software. As many will know, 'Open Source' has been an extraordinarily powerful and effective basis for software development3. All the software generated by my database projects are released as Open Source. Such software is clearly covered by the proposed policy. The Vice-Chancellor's statement says that such release will be allowed but implies that the Research Services Division will require to oversee the 'contract'4. I am at a loss to know what this means - no contract is necessary, simply a statement that the software is released under one of the accepted Open Source licences. Will our ability to release software under an Open Source licence be compromised? I simply cannot tell from the Report or from the glosses that have been placed on it.
Finally, I wish to make a more general point. For reasons that are not wholly clear to many of us, the University is in dire financial straights. We understand that some of the reasons may well be beyond the University's control. There remains the suspicion, however, that this Report is motivated by the hope that income from the exploitation of IPR may help alleviate our plight. It is, however, essential for us to be clear about our mission: it is to teach and do research. 'Universities are not in business as inventors' - I quote a letter from a past Vice-Chancellor, Alan Cottrell, to the CVCP in 19775. What, fundamentally, has changed in the last 25 years ? I am, of course, not so naïve as not to realize that there has been a political change since 1977, but that is not the question. Why is it correct now, but was not in 1977, to 'maintain and encourage a culture of entrepeneurship' in the University? It is also wrong, and naïve, to think that the greatest public good can only be met by the patenting of inventions. This is most certainly not the case in the field of genomics, where the patenting of DNA sequences has unquestionably lead to a failure of discoveries to be exploited for the common good (the 'benefits to society' of the Report). The whole tone of this Report assumes that (a) our duty as employees of the University of Cambridge is to maximize the University's income from our work and (b) that only by doing so we are best serving the public good. I reject both assumptions.
1 http://www.ic.ac.uk/templates/text_3.asp?P=3398
2 http://www.chem.ox.ac.uk/newlab.html#nov2000
3 E.S. Raymond. The Cathedral and the Bazaar. O'Reilly, 1999.
4 http://www.admin.cam.ac.uk/news/dp/2002091301
5 Alan Cottrell, 'Letter from the Vice-Chancellor of Cambridge University to the Executive Secretary of the Committee of Vice-Chancellors and Principals on the Working Party on Patents and the Commercial Exploitation of Research Results', 25 November 1977.
Professor Sir Keith PETERS:
Mr Deputy Vice-Chancellor, I welcome this proposal and this Discussion for the clarity that I hope that they will bring to the issues concerning intellectual property.
The Clinical School has seen great growth over the last decade fuelled in large part from the support provided by charitable bodies, such as the Wellcome Trust and the major medical charities. These bodies have been generous in sharing the benefits of the research that they fund with organizations they sponsor. They also recognize that the environment in the research centres in Cambridge is conducive to a free flow of information and new ideas. Where new intellectual property is commercializable they assist with expert support to capture and exploit it, and allow the proceeds to be shared with the individual, the Department, and the University.
Clinical and biomedical research depend on collaboration in which a community of innovative scientists and clinicians work on a common problem; the strength of Cambridge's collaborative approach has been recognized by the Medical Research Council, the medical charities, and other benefactors, who have funded buildings and major research programmes at the Clinical School and elsewhere in Cambridge. Top class scientists are drawn to the environment that Cambridge fosters. Few biomedical scientists would not acknowledge the debt that they owe to their colleagues, to the organization that houses them, and to the community that funds them. The policy of communal ownership of intellectual property fuels the Cambridge Phenomenon in biomedical sciences - it does not stifle it.
For the University to have the responsibility for generating the benefits of the intellectual property that someone working in this context might create in return for an appropriate share of the proceeds seems entirely appropriate. However, for the individual to take the lion's share denies the contribution that the University and their colleagues make.
There may be differences between different Schools in the University. Some may argue that biomedical science is a special case. We all have an ownership of our underlying biology, and biomedical scientists may simply reveal what is already there - they do not as often invent de novo in the same way that physical scientists do - issues which have been widely debated in the context of the sequencing of the human genome - where the scientists at the Sanger Centre, led by Sir John Sulston, successfully argued for the public ownership of the genomic information generated there. It would be up to any individual academic, as I understand it, to do the same, if he or she felt similar compelling arguments against patenting applied. However, we would normally expect academic staff to recognize that it was both in their interests and the University's that appropriate protection and exploitation of intellectual property should take place. For this we need, in the University, a top class professional capability. However, it is well known that no office dealing with intellectual property can function without the enthusiastic participation of the inventors or discoverers. I find therefore that many of the concerns generated by the University's proposals are misplaced.
Professor R. J. EVANS:
Mr Deputy Vice-Chancellor, I would like to draw attention to paragraph 8 of the Joint Report of 24 July. This states that 'the University should assert ownership over all intellectual property generated by its employees in the normal course of their duties, with the exception of copyright in normal academic forms of publication including books, articles, and lectures, or other similar works generated by staff, unless those works have been commissioned by a sponsor or by the University'.
This amounts to a major and far-reaching change in the University's policy on copyright, despite the claim in Paragraph 4 of the Report that it does not. Obviously I welcome the assurance that there is no intention to go against the conclusions of the report of the Joint Working Party on Copyright of 17 October 2001. This very sensibly states that there is a legal presumption that University staff own copyright in their works, and that the personal relationship between the creator and the work created is protected under the Human Rights Act of 1998. In all universities, staff enter into contracts with publishers, either directly or through literary agents, on the assumption that they own the copyright over their work. The Report goes on to note that if the University were to assume copyright itself, then it would be able to require the alteration of works published by members of staff, and that freedom of expression would be compromised. And it would of course have to set up what the Report calls an alarmingly large bureaucracy to deal with the management of these rights.
But I have to say that whatever is currently intended is largely beside the point. The point is in the wording of the Joint Report of 24 July, and in particular paragraph 8. This is extremely vague and loosely phrased and opens up all kinds of possibilities which have already been the cause of grave concern expressed by a number of Faculty Boards in the Humanities and Social Sciences in this University. Let me briefly list some of them.
First, what is intellectual property generated by staff in the normal course of their duties? We are required to carry out research as part of our duties, so I do not think we can claim that we prepare publications only in the evenings and at weekends.
Secondly, what is a normal academic publication? If I publish a book with a commercial publisher, write an article in a newspaper or magazine, or do a radio or television broadcast, is this a normal academic publication? You may be amused to learn that earlier today my literary agent informed me he had sold the film rights to my latest book to a company in Hollywood, executive producer Ridley Scott. I hasten to add that the money he paid was peanuts by Hollywood standards, though it's important to me. I don't think the film will qualify as a normal form of academic publication. The UK government website on intellectual property defines it as including among other things 'copyright for material - literary and artistic material, music, films, sound recordings, and broadcasts, including software and multimedia'. That means for example that music composed by, say, Robin Holloway of the Music Faculty is a form of intellectual property and presumably since it is not a normal form of academic publication it too will fall under the copyright claims now being asserted by the University.
Thirdly, an exception is made for works commissioned by a sponsor or by the University. If the BBC or a commercial publisher or some similar body commissions a work, as often happens, whether it is a book or a broadcast or a piece of music, that presumably falls into this category. And what exactly is meant by the University commissioning a work? Does it commission our lectures, for example? It is certainly possible to argue that it does, in which case we would be in the absurd position of attempting to write our books without reference to our lectures, or worse still, trying to ensure that our lectures did not cover topics on which we intended to publish.
There are two important general principles at stake here. The first is freedom of speech. Let me give you a concrete example. As you may be aware, I was involved in a high-profile libel case as an expert witness for the High Court two years ago, a case that was decided in most respects on the basis of the findings in my expert report. Yet when I tried to publish a book based on the report, no fewer than four publishers turned it down under the threat of a libel action from the defeated plaintiff, or attempted to make its publication dependent on unacceptable conditions. It took me eighteen months to find a publisher brave enough to bring it out. Had the copyright in the report, which after all was not a normal form of academic publication, and had been commissioned by a sponsor, namely the solicitors for the defence, been vested in the University, I doubt very much whether it would ever have seen the light of day. It is vital therefore that any new rules on copyright introduced by the University should provide cast-iron guarantees of the basic rights of staff over their own work, and that any exceptions should be very carefully defined.
Secondly, in common with many, probably most staff in the History Faculty and other areas of the Humanities and Social Sciences, I depend for a living not just on my salary, which I have seen decline drastically in relative terms over the thirty years during which I've been an academic, but also on additional income from journalism, broadcasting, and commercial publication. This is not just the case with senior academics; I know a number of junior colleagues who are in this position too. Not only would it be wrong for the University to grab this income, it would also drive many of us away and do desperate harm to recruitment of the leading young academics on whom we depend for the maintenance of our position as Britain's leading University.
I am sure, as I say, that none of this is the intention behind the current proposals. But they have, frankly, been very poorly drafted; they are in essence a lightly amended version of the existing rules, in a situation where the complex and rapidly-evolving area of IPR demanded a thorough rethink and a completely new draft. I therefore urge Council and General Board to bin the Report and go back to the drawing-board.
Mr R. J. DOWLING:
Mr Deputy Vice-Chancellor, The proposals on Intellectual Property Rights (IPR) are notable for their failure to mention software. There is a growing trend among programmers, and one which I feel should be encouraged, to release code where possible under the Free Software Foundation's General Public Licence (GPL). The proposals, as they stand, would obstruct this. I use the phrase 'as they stand' advisedly because the Vice-Chancellor has sought to clarify the proposals in a University news report. Surely, such clarification belongs in an amendment to the proposal, not in a faked up 'questions and answers' news article?
The Vice-Chancellor assures us that 'the new proposals are not designed to inhibit the publication of public domain software'. But they do! The University plans to assert ownership 'of all intellectual property created after an agreed date by all employees'. The exemption list mentions 'books, articles, lectures, and other similar works generated by staff'. So software is not exempted. Therefore every request to release software under the GPL must be cleared by the Technology Transfer Office. Will they say yes? Will they say no? Will they just never get round to replying to the e-mail message? They've not got round to replying to mine. Policy must be laid down in the proposal; it cannot be left to the TTO to treat each case individually.
The GPL has the property that it is 'sticky'. If you take some software covered by the GPL and adapt it, your adapted version must also be released under the GPL. But if release under the GPL requires TTO approval, does this mean that we need TTO approval to start working on GPL software? The number of requests to the TTO that this will generate beggars belief.
This proposed policy is hopelessly poorly drafted and needs a complete rewrite and representation. It cannot be allowed to stand as is.
Professor A. B. HOLMES:
Mr Deputy Vice Chancellor, I welcome the chance to contribute to the Discussion of the Joint Report and to argue for the alternative option of more or less maintaining the status quo.
I speak with the personal experience of having been the named inventor on over 34 patent applications, eleven of which have been allowed and fifteen or so are still under examination. I think I know what I am talking about, and I believe that is the outcome of over twelve years' experience working to exploit intellectual property which has emerged from my research laboratory. I also speak as a founder of Cambridge Display Technology in which the University owns equity. The University has realized some of the profits from the equity held in that company as a result of its ownership of intellectual property created in part by me and my colleagues in the Melville Laboratory and the Chemistry Department. Some of these profits have (rightly in my opinion) been used to contribute to the recent expansion of the Research Services Division.
A prime consideration for me in filing patents on work carried out in Cambridge University has been the importance of the basic science. We have always been motivated by doing the best possible science. This is reflected in the publication record from our laboratory and the citations of the published work. However, we have also appreciated that there may be opportunities for commercializing the discovery, and so we have been careful to consider filing a patent application before putting the work in the public domain.
My basic concern is that we should offer the maximum flexibility to academics themselves in deciding the best route to exploit the intellectual property generated in their research in this University. Apportionment of benefits between inventor, Department, and University is eminently reasonable. However, I note that the Annex in the Joint Report of the Council and the General Board specifically excludes situations where equity in companies is allocated to inventors. Does this mean that inventors who form a company to exploit intellectual property generated in the University may (reasonably in my view) expect a different proportion of ownership?
I would like to outline a trivial example to illustrate the consequences of the changes. We have a good research result, and think it might be worth protecting through a patent. We then have an opportunity to present the work at international meetings. What should we do if we wish to present this result at the conference? Should it be decided that we cannot do this at such short notice, because we need to check whether the Research Services Division wishes to file a patent on behalf of the University? Or should we do as I have been doing for the past ten years, and draft a preliminary patent specification in the name of Cambridge University Technical Services, and post it off to the patent office by Guaranteed Delivery the night before going off to the conference? The latter has proven to be a very pragmatic solution to the problem and has led to a number of patents which have eventually been allowed and passed on for exploitation. Nothing is lost by this action, and there is every opportuinity for gain.
Of course, the scenario which I have described is probably a relatively rare event, not least because the experience and knowledge which we have developed of the process of invention and patent filing has been acquired over a long time, and not many people will have been given this opportunity in the normal course of their academic careers.
This then takes me to the point at the heart of the Discussion which is dealt with in para. 6 of the Joint Report. The proposal in the Report asserts that it cannot be proven whether the present policy of allowing staff to act independently of the University is or is not responsible for the success which has so far been achieved in technology transfer of intellectual property from the University to the market. The Joint Report says 'a policy based on assertion and belief is hard to justify.' I agree, and this must also apply to the implementation of the new policy.
Mr Deputy Vice-Chancellor, this is my main concern. We simply do not know what is best. In my view the wisdom of experience is essential to the process of transferring technology from the University to the market place. This experience will be derived from getting the right (and wrong) advice. One of the most important sources of advice must be the Research Services Division, and many people will make this their first port of call. Others will also want advice from elsewhere. Will they necessarily seek it if they have no choice? I doubt it. We can be sure that an excellent Research Services Division will attract people to it by its reputation, and we should certainly do all in our power to support the Director in striving for this excellence. In the meantime the only perfect solution is to carry out an experiment and to draw conclusions on a statistically significant sample. Why not continue to conduct that experiment within the framework of the status quo? I for one will be very demotivated by the new policy.
Professor A. J. BADGER:
Mr Deputy Vice-chancellor, I want to make three brief points about process. First, I speak as a member of the Council and General Board. The Council and General Board drew up the policy on IPR in this Report as a result of the recommendations of the Research Policy Committee. That committee consists of Chairs of the Councils of the Schools, the Regius Professor of Physic, a senior figure in the Arts and Humanities Research Board, and leading researchers in biochemistry, pathology, earth sciences, and engineering. In broadly following those recommendations the Council was clearly neither sanctioning some sort of power grab by RSD nor finding some quick fix for the deficit.
Second, it is clear that Council will have to consider very carefully the comments made this afternoon in order to ensure that the proposed policy in this complex area does not inadvertently have the apocalyptic consequences that so many speakers have outlined. But, speaking as chair of the Audit Committee, I am a little surprised that there has been so little mention this afternoon of the issues of audit and accountability of HEFCE funds. The University has a duty to exercise due diligence in the proper expenditure and exploitation of those public funds. The unfettered exploitation for private gain of these public funds is clearly unacceptable.
Third, the University in the past ten years has had to come to terms with its accountability to outside bodies such as the Health and Safety Executive and with the opening of its decision-making to scrutiny by external bodies such as the National Audit Office, the HEFCE Audit Service, the courts, and even the Information Commissioner. It has had to change its practices - often with great difficulty - in such areas as health and safety, personnel policy, promotions, and financial management. IPR is one more area. Whatever the outcome of the discussion of this particular change of University policy and practice this afternoon and subsequently, the Regent House needs to be aware that some change in practice is required: the status quo is not an option.
Dr S. MAHAJAN:
Mr Deputy Vice-Chancellor, the academic community thrives on openness. As my case will illustrate, the proposals in the Report, and the Grace of 21 March 2001 on externally funded research, hinder openness.
I am a physics lecturer funded by the Gatsby Charitable Foundation to contribute to physics teaching in the University and outside. One of my intended contributions is to publish a textbook under the GNU Free Documentation Licence (http://www.gnu.org/copyleft/fdl.html), a free-software-style licence designed for textbooks and manuals.
This licence allows anyone to reprint, improve, and even republish and resell the book, subject to the condition that all improvements are made available on the same open terms.
With these terms, books will be widely and cheaply available to students and others, whether in England, America, or Africa. I hope that the physics community will see such books as their own and will contribute to improving them, as has happened on a large scale with the GNU/Linux operating system.
I have nearly completed negotiations with the major American textbook publisher. I will transfer all rights to them and they will publish under the free licence. By being first, and selling widely and cheaply, the publisher hopes to become the standard setter. This method of publication required approval from the managing director, and the delicate negotations have taken two years. If I did not hold clear ownership of the copyright, and therefore the ability to transfer it in exchange for publication under a free licence, the negotations would have failed, and a method for academics to share ideas would be stillborn.
I ask that the Grace on externally funded research, which claims my intellectual creations from 1 October 2002, be repealed; and that the current proposals, which extend the claim to all employees, not pass.
The Report on intellectual property rights seems to assume that the amount of money changing hands measures the value of an invention or publication. Sharing has a value that cannot be measured in pounds.
Dr D. MACKAY (read by Dr S. MAHAJAN):
Mr Deputy Vice-Chancellor, thousands of members of this University benefit from free software, much of it written by academics around the world. All Cambridge staff and students should continue to be free to contribute to the free software community, by writing new software or improving existing packages. I understand that the proposers of the new policy on IPR do not 'intend' to prevent our doing so; but the policy that the University should own copyright of the software we write would directly conflict with the most widely used free software licence, the GNU General Public Licence (GPL) (http://www.gnu.org/licenses/), which explicitly advises that the author's employer should 'disclaim all copyright interest' in the software.
The University should therefore have an explicit policy along the following lines: 'Unless otherwise stipulated in a relevant contract, all University employees and students may release software that they write under free software licences (including the GPL), and in such cases the University will disclaim all copyright. The author may then assign copyright to whichever body the author sees fit' - for example, the author might assign copyright to the Free Software Foundation, an organization that defends free software licences.
Professor J. P. ALLAIN:
Mr Deputy Vice-Chancellor, in general, we have no conceptual problem with sharing the potential outcome of our IPR with the University, provided the system results in a fair and optimal outcome for all parties. However, the current proposals recognize only one side of the coin, i.e. ownership. Our real concern has to do with the other side of the coin, that is, how can inventors be sure that the University is making best use of IPR on their behalf? As clinicians, we also want to see maximal and rapid translation of inventions into the clinic for the benefit of patients. We feel that as the proposals stand, inventors are being asked to give up ownership without any guarantees from the University that it will be pro-active and efficient in setting up licence agreements. We have heard no innovative or strategic ideas on marketing or translational research, for example.
We are pleased to see the expansion of CUTS and some new recruits. However, we wonder if it is perhaps premature to expect the young team at CUTS to fly solo without close collaboration with scientists and clinicians. If inventors are being asked to sign away ownership, they need to have absolute confidence in the CUTS team. This confidence needs to be built before the current position on ownership can be changed. So we do not support changing the status quo yet. Meantime, we would advise CUTS to actively develop plans for IPR marketing and to communicate these widely to the academic community. This would pave the way for reconsideration of the proposals in the future.
Mr M. LUCAS-SMITH:
Mr Deputy Vice-Chancellor, I wish to speak today, in a personal capacity, on one aspect of the Council and General Board's proposal, namely the inclusion of software within the proposed new policy. I wish to discuss the applicability of the policy to so-called 'open source' software.
The present issue regarding intellectual property rights is of concern to me, an assistant member of staff, as someone who is employed by the University to write software. As the full-time webmaster for my Department, much of my work involves the use, and potential release, of open source software.
Open source software is used much within the University. For instance, anyone sending an e-mail using the University's e-mail provision is utilizing open source software, which is used in part of the process. To take another example; a high proportion, probably around 90%, of the websites in the University, including that of the Research Services Division, is run using an program called Apache, which is released under an open source licence.
Is the Administration aware of the huge role open source software plays in keeping the University's computing systems running?
At present, for instance, I am writing a large piece of software which enables control of information such as inventory or staff details, via a Web browser for authorized users. Naturally, I am keen that, unlike another piece of software recently implemented within the University in recent years, it is reliable, useful, and saves time and effort. Indeed, my software may well become of interest both to other Departments within the University and potentially beyond. I therefore wish to release this software under an open source licence, increasing its availability for others to use and to improve it, while retaining my own rights to be recognized as its original author.
I therefore made enquiries to see what, if anything, was needed formally to declare this software for release under an open source licence. My enquiry, although now being dealt with, was greeted partly with an apology from a Case Administrator at the Research Services Division for 'not having a relevant form or any set procedure in place for you already'. I would expect better of our Administration if they wish to become the guardians of most of the University's intellectual property.
I wish to see the University's position on open source software made explicit as part of the process of introducing new IPR regulations. The situation is ambiguous, both at present and as proposed, and the lack of any clear procedure - should one be required - for declaring software as open source, is not helpful.
In my view, those writing software on University funds should have the automatic right to declare their software under an open source licence, if they so wish. That the University should supervise all releases of Free Software is unacceptable and risks making us a laughing stock.
I ask the Council and General Board: will you make explicit the right of software writers employed on University funds to make the judgement on whether to open source their software?
Professor M. J. KELLY:
Mr Deputy Vice-Chancellor, as someone newly returned to Cambridge, I want to make a few remarks as if still from outside looking in.
My twenty-one year absence has been split almost equally between industry (GEC) and university (Surrey). In both cases, new intellectual property was owned by the employer, it being argued in both cases that I was being employed to produce such new intellectual property. I was appropriately remunerated in both employments, and so I feel that my employers were entitled to rights to the fruits of my efforts. The Surrey IPR arrangements are similar to those proposed for Cambridge. I share a number of perspectives of the Vice-Chancellor, and I endorse his statement in the Times Higher Education Supplement.
Together with one other, I hold a UK Patent that is the basis of a new microwave source. More than a decade after its invention, and with the combined efforts of very many others, it now forms a key element of all cruise control systems in Jaguar, BMW, and Fiat cars. I frankly get more satisfaction from its widespread use than I would from collecting a few pennies on each system sold.
For purely practical reasons, the ownership of IP must be unambiguous. If all other institutions own the IP of their employees, how much time and effort will be wasted in persuading potential investors that Cambridge is different? What right have I, as an individual member of staff, to sign away rights to my ideas unilaterally, the germination of which owe so much to many others who have invested in me through the provision of salary and infrastructure, stimulating conversations, the efforts of students, etc.? A letter from the University asserting its ownership cuts right across all that uncertainty when time is of the essence as one raises funds to exploit.
The return on the vast majority of potential exploitations will not exceed the £100K ceiling at which the inventor's incremental share of the revenue first falls below 50%. For those cases where the 33:33:33% rule applies, our paymasters, the Government and taxpayer prominent among them, would regard revenue to the Department and to the University as juste retour. This is all the more so, when Government (HEIF) funds are made available to Universities explicitly to help further exploitation.
There is an onus on the University. In being granted the ownership of intellectual property, it must be an effective steward. In industrial contracts with universities, publications can be delayed for only a finite period while IP issues are resolved. The University must agree in a finite period (say, eight weeks) either to assert and protect ownership with a clear plan for exploitation, or explicitly to cede ownership back to the individual(s).
In closing, I have been greatly saddened by the prevailing tone in some Discussions earlier this calendar year that I have read prior to my return. The carping, particularly on matters of administration, shows the University in a very poor light. There must be a turning point, and I hope that it is in the administration of IPR, where University revenue is at stake, in which we can have full confidence.
Mr S. ALLOTT:
Mr Deputy Vice-Chancellor, Cambridge has a thriving technology business scene with 1,500 technology businesses employing some 45,000 people. This is a great achievement. Cambridge is acknowledged as one of the leading technology business clusters in Europe. The growth of technology business here is known as the 'Cambridge Phenomenon'. The question arises whether the University's past liberal policies on IPR ownership by academics helped to create the Cambridge Phenomenon or not? If the past liberal policies have been beneficial, will the proposed changes in the University's IPR ownership policies have a negative impact on the Cambridge Phenomenon in future?
There is some important evidence on this point which I would like to bring to the attention of this House. The evidence is set out in the Cambridge Phenomenon Report which was published in 1985. The study was sponsored by the DTI, the SERC, six separate Cambridge Colleges including Trinity and St John's, the University's Department of Land Economy, and several local businesses. It was carried out by Segal, Quince, and Wicksteed, a local firm of consultants reporting to a steering group. The then Vice-Chancellor, John Butterfield, contributed the Foreword. My impression is that the work is highly regarded and respected. A follow up, the Cambridge Phenomenon Revisited, was published in June 2000. Sponsors, the second time around, included the DTI, the European Commission, Cambridge Council, Trinity and St Johns, and several local businesses. The current Vice-Chancellor, Sir Alec Broers, has contributed the Foreword.
Before examining this evidence in detail, let me first introduce myself. Having graduated from Trinity in 1980 with a law degree, I was called to the Bar by Gray's Inn and practised for three years at the commercial bar in London. I then practised as an in-house lawyer for six years employed by Babcock International, Rank Xerox Ltd and finally by Sun Microsystems Ltd. I then spent five years working for McKinsey & Co as a strategy consultant advising technology companies before joining a software company, Micromuse, in 1995. By 2001, from its London base, Micromuse had achieved £145m in annual turnover, employed around 800 people and had been floated on the NASDAQ in the USA. By the time I left, I had become company President as well as being Chief Financial Officer and a main board Director. Micromuse sponsored two separate pieces of research in the University Computer Laboratory, the terms of which I negotiated personally. I am now doing some full time voluntary work for the Computer Laboratory, whilst on a sabbatical from my business career.
The original Cambridge Phenomenon Report published in 1985 sets out a very clear view that the then current liberal Cambridge University IPR régime had contributed directly and indirectly to the Cambridge Phenomenon; i.e. the growth of technology business in and around Cambridge (see summary at paras 5.36 to 5.38). The report explains that the liberal IPR approach (described in detail at paras 7.14 to 7.27) has 'two effects of great consequence' (para. 7.28 et seq) which are beneficial to the Cambridge Phenomenon:
| 1. | It makes it easy for academics to enter into commercial activity |
| 2. | It makes it easy for academics to interact with local firms on technical matters |
The report notes that Cambridge's liberal IPR approach is the 'sharpest contrast to those of most other British universities' (para. 7.33). The noticeable and undesirable tendency of a centralized system of industrial liaison (not then used at Cambridge) to drive consultancy underground are discussed at para. 7.40. The question of IPR is specifically discussed at para. 7.46 and an Oxford University committee recommendation that patents resulting from a typical university research project be vested in the employee rather than the employer is mentioned.
A 'revealing indication of the benefits of the Cambridge approach' is inferred from the figures cited that Cambridge was responsible for over 10% of the revenue generating technology ventures from UK universities between 1949 and 1984. In this period 39 technology business ventures were set up by Cambridge University members in the Cambridge area whilst only some 300 of the 2,500 inventions assigned from all universities to the National Research Development Council became revenue earning. The report notes that 'one could argue that the burgeoning phenomenon … derives indirectly from the ... opportunities created by [Cambridge] University's open [IPR] approach.'; see para. 7.48. ('In sum, the net effect of the Cambridge approach can be described as 'lowering the threshold to commercialization' of academic know-how ...') (para. 7.49).
The report was updated in June 2000 when it noted that Cambridge now had 32,000 people employed in 1,250 technology firms. By March 2002 this had risen to 1,500 firms employing some 45,000 people (noted in the separate St John's Innovation Centre Report authored by Walter Herriot and Dr Tim Minshall). The updated Report notes that by 1998 'From [an IPR] perspective, it has, probably, become harder for entrepreneurial academics to drive spin-out creation ...' (para. 3.81). From this it seems reasonable to conclude that:
| 1. | The University's liberal IPR approach has been a significant positive contributor to the successful growth of technology businesses in Cambridge |
| 2. | Changing the University's IPR policy to make it more restrictive and cumbersome will harm 'the Cambridge Phenomenon'. |
If one believes that the Cambridge Phenomenon is good for the University in general, the benefits of tightening up the IPR policy as currently proposed must be weighed against any harm done to the Cambridge Phenomenon and, by extension, harm done to the University itself. Assuming that the originators of the current proposals are familiar with the findings of the original 1985 report, it would be helpful to have an explanation of how an adverse impact on the Cambridge Phenomenon and hence the University itself will be avoided.
Dr A. MYCROFT (read by Mr S. ALLOTT):
Mr Deputy Vice-Chancellor, I fear this Report is the next stage of a wedge being driven between researchers and their vocation by the Research Services Division who seem to seek to extend their remit of providing a service to researchers into controlling their output.
I warned the Regent House of various inconsistencies in the first stage of the wedge in my remarks (http://www.admin.cam.ac.uk/reporter/2000-01/weekly/5838/12.html) at the Discussion of 13 February 2001 on 'Ownership of Intellectual Property Rights generated by Externally Funded Research'.
It is now clear that there is a plan to restrict all external interaction by researchers except that sanctioned by the administrators who believe that they control us.
In 2001, the University approved ill-drafted, but arguably justifiable, policy to ensure that the University took a share in projects funded externally. The current proposal effectively plans to own/censor almost all copyright and patents which its employees produce from 2003, especially in disciplines such as mine where almost all professional activities produce copyright in contrast to a more liberal régime in say private medicine where medical procedures do not produce copyright.
The problem is that this proposal will become 'one law for the clued-up and one law for the rest'. The exemption in paragraph 12 permitting 'Inventions in the course of consultancy' will be used, by those in the know, to ensure that large amounts of IPR will magically been have done in the course of private consultancy, perhaps even to a company owned by the employee's spouse. This has been the experience of other universities which exclude consultancy.
No doubt then the next stage of the wedge will be to demand a share of all consultancy income too, when the current proposal, if adopted, has been deemed to be 'not working effectively'. One suspects in 2004 there will then be a similar proposal, now including all income from other sources, so this too may be taxed by the University (and what junior lecturer - not to mention the current members of University 'management' - has not occasionally earned a fee for giving a lecture, advising or the like, to enable them to live in Cambridge while salaries drop further behind?). But there is no panacea: when even these measures are seen not to work as fully as they might, the University might want to see spousal tax returns to check that spouses are not giving advice which might have leaked from the University (and perhaps to ensure total family income does not fall outside the bounds deemed appropriate for the employee's position in the University); the panacea fails here as this would be illegal.
What will happen to this money raised? Perhaps there will be end-of-year bonuses to staff in the way of the best co-operatives? Or will we just have more building projects, and sneaky ways to pay certain officers whose need to live in Cambridge is deemed more important than that of the rest of us? (Remember that Professors can keep their bonuses secret, unlike the rest of us.)
Let me give a little personal history which I think reflects 'good' (synergistic) industrial involvement rather than bad - which the current sledgehammer proposal seems to assume we are all 'up to'. Many years ago, I part-wrote a software package (a 'compiler') which is owned by a company. It has been moderately successful, and one of its successors is still used by ARM to compile much of the world's mobile-phone software. Since my research involves compilers you might think 'Aha, using his University skills to make money'. Well, I used no University equipment and worked at home in my own time. Actually building an industrial quality compiler enabled my lectures to be improved - the students get sensible discussion about the dark corners which are normally glossed over by textbooks; it's not bad for the kudos either! Moreover, a licence was donated to the University and the software was used in our Department for teaching and was the University-standard compiler in the last few years of the University IBM mainframe. Further, based on contacts made during this time, the University still benefits from ongoing research grant income from ARM. So, are we to begrudge the fact that I spent additional working time beyond my University duties in a way which benefitted the University, just because it did not control what I did? Would it have been better if I had just taken a longer holiday instead?
(Note particularly that, although the rules would seem to continue to allow this for most employees of the University, because I am the Reader in Programming Language Implementation with teaching and research centred about compilers, this route would specifically be forbidden to me in future. It is a curious world where one must only create external IPR far from one's field of expertise!)
I am currently negotiating that some IPR generated during my latest sabbatical leave is donated to the University so we may jointly exploit it (one practical route is then for the University and I to place some of the IPR in the public domain, but to retain associated patents for future income). In a perfect world, I would be asking Research Services Division to help me in this; however I am dissuaded from doing so at the moment because the current proposal seems to suggest it is inappropriately named! Perhaps we should have a separate division which can give impartial advice to staff.
I worry also about the effect on sabbatical leave; much research and generated IPR arises from sabbatical leave in industrial institutions (as did the above IPR). The next stage of the wedge must also include reform of the sabbatical rules to ensure that contracts signed during sabbatical leave are vetted by the University to 'protect' its IPR.
And what about recruitment? Certainly some of my skills were developed before I came to Cambridge. Suppose a 'highly desirable' potential recruit says 'I need a special contract with the IPR rules amended because the IPR which I will generate depends on my previous experience, knowledge, and connections'? Do we allow this? Would it be public?
There are also problems in the drafting with closer-to-home issues: the University's job adverts all claim it 'has a policy on part-time work'. Does this mean that only part of a part-time employee's IPR will be seized? And what about those of us who work for both Colleges and the University? How is IPR shared then?
And, by the way, why does the proposal share revenue between three pots: the inventor, the Department, and the University? Is the Department not part of the University? Or is this just a disingenious plan to make the shares from the scheme look equal? Perhaps 33%/67% would have the wrong 'spin'?
Based on the above arguments, I urge the Regent House to reject the proposal; perhaps some control is needed to prevent University equipment being used for personal gain without the University having a share in the benefits, but this would require far less than the current ill-drafted proposal to confiscate ideas.
The following remarks were made on 22 October 2002:
Dr J. P. DOUGHERTY:
Mr Deputy Vice-Chancellor, I generally support the critics who spoke on the first day of this Discussion, so I will try to avoid overlap with their remarks. I would like to make three points briefly.
Firstly, there are severe difficulties that in some cases might befall officers who leave Cambridge to posts elsewhere. Their intellectual property rights could be split between rival claimants in such a way at to compromise continued work on a project. This applies especially to people whose work results in the building of large academic databases. Recent events in my own life prompt me to add that the same could apply at an officer's retirement. A don's work is never done, and most of us hope to continue with our research, and to write up or develop material that we did not have time to complete before. It also occurs to me that there is a similar point in the case where an officer dies in post, and an executor or literary executor is endeavouring to make arrangements for unfinished work.
Secondly, a glance through the Ordinances reveals that there are many passages in smaller print than the main text. Some of these have straightforward explanations, for example Supplementary Regulations for some Tripos Examinations. Others have a variety of provenance, being Notices, Codes of Conduct, Rules, and so on. It is unclear what force they have. This could be the subject of a longer speech but for today let us note that the Council themselves have not been meticulous followers of the Statutes and Ordinances in recent years. Indeed, the current flysheets pertaining to the vote on the Offices of Secretary General and Treasurer include a Reply offering the argument that because Statutes (not just Ordinances) have not been followed recently, that forms a good reason to alter them! I suspect that passages in small print command reduced respect. If there is to be a passage in Ordinances on IPR, and I think there should, it needs be a proper passage printed in full size. It would then qualify under the statement that University officers' appointments are subject to the Statutes and Ordinances of the University. Instead, what is offered in the Annex to the present Report is a Policy Statement, not an amendment to Ordinances, which is what it should be. This Annex is plainly meant to be legalistic, as it goes to the trouble of defining the word 'University' to mean the University of Cambridge. So it should be part of the rule-book that is under the charge of the Regent House.
Thirdly, on the substance of the matter, that the Council should seek to appropriate, starting 1 January next, all the IPR generated by all the staff, which can then be granted back on an ill-defined basis, is quite unacceptable. It potentially includes everything done by way of leisure activities. If it applied to me, it would include all my musical compositions, my genealogical databases, and so on. We just do not want that heavy-handed treatment. It's all the more reason for the Regent House to be deeply suspicious of the present administration and its thirst for Governance combined with corner-cutting. It is not enough just to be told that 'doing nothing is not an option'.
Dr T. W. KÖRNER:
Dear author-members of the Poldovian Academy of Literature, as so often in the past few years, the Praesidium of the Academy wishes to bring forward proposals which are simultaneously so minor that they are unworthy of your attention and so important that failure to pass them will lead to unspeakable catastrophe.
Our proposals echo the words of our great comrade-minister Tsanberi: 'When a man inherits wealth it belongs to him. When he discovers an idea it belongs to mankind as represented by our great Poldovian Academies.' Until recently, the copyright of our authors belonged to the authors themselves. Not only did this run counter to the views of comrade-minister Tsanberi but it also created great confusion both in the outside world and in the Praesidium.
We have already introduced transparent and equitable arrangements for writers of instruction manuals and we now propose to extend these transparent and equitable arrangements to authors of non-fiction books. Some of you fiction writers worry that you too may be subject to transparent and equitable arrangements. I say to you, have no fear. We in the Praesidium know that whilst writers of non-fiction are merely useful, the writers of fiction are the glory of Poldovia. We swear to you, splendid fiction writers of Poldovia, that we have, at present, absolutely no intention of making transparent and equitable arrangements for you.
As a great Poldovian once said, 'A man who can order someone else to make two blades of grass grow where one grew before will deserve more of humanity than the whole tedious crowd of inventors and intellectuals'. It would be contrary to the natural order of things to have rich authors and our proposals ensure that the natural order of things will not be disturbed. Suppose, for example, that a book earns 10,000 zorbals a year and the author pays our glorious Poldovian taxes at 40 %. In the first year the author will get 5,400 zorbals, in the third year 4,200 zorbals, in the seventh 3,000 zorbals, and so on until in the eleventh year he will see 2,000 of an original 10,000 zorbals. We in the Praesidium feel passionately that an effective rate of tax of 80% reflects the gratitude that all comrades feel to Poldovia and to our Academy. We wish that we too could pay an effective rate of tax of 80% but, unfortunately, we in the Praesidium are not authors and this glorious opportunity must pass us by.
Some simple-minded comrades have suggested that Poldovian authors might leave to join academies in other lands. We reply that it is well known that there do not exist any academies which treat their authors better than we do. It is also well known that only outstanding authors can join these academies (which, as we said before, do not exist). Since we have only a few outstanding authors, only a few of our authors can leave. Comrade-authors, I say to you, we will be well rid of these trouble makers. There are very few true individuals and Poldovia will be better off without them.
Some comrades are troubled by the thought that if writers of non-fiction receive less money for their work they will work with less keenness. The statement that authors will work better if they are paid properly is superficially attractive but is unprovable and a policy based on assertion and belief is hard to justify. May I remind you, comrades of the old Poldovian saying 'To the cat the cream, to the donkey the cudgel'. Some people do indeed respond to incentives (the higher members of the Praesidium, for instance, must be paid the rate for the job) but with authors and intellectuals it is the other way around. It used to be said by thoughtless people that the members of our academies accepted low incomes in exchange for great freedoms. In the last twenty years, the Poldovian academies have much reduced the freedoms of their members without much increasing their incomes, and yet I and the presidents of our sister academies see nothing but joyous faces and observe nothing but increased zeal. Who can doubt that further reducing the rights of our comrade-members will lead them to redouble their efforts?
Moreover, comrades, is not the question of who owns a copyright a false question? What matters is not ownership but doing the best we can for our books. One day, a peasant was walking through one of our great Poldovian forests when he came across a gold piece. He started to run home, thinking of the things that he could buy for his family, but before he could get home a robber set upon him and took the gold piece. The peasant was very sad and often cursed the memory of the robber. However, the robber invested the gold piece and became a very rich man who used some of his wealth to build a new school for his town. When he heard this, the peasant was deeply ashamed of his selfish feelings. As we say in Poldovia, 'Property belongs to him who can make best use of it.'
The Praesidium has observed with sadness in its heart that some comrade-authors have fallen victims to predatory external parties and may have been persuaded to sign unequal contracts. (Thus some agents have tried to take control of copyright, others to take the lion's share of royalties or to prevent heirs enjoying any inherited rights.) Our proposals will prevent our authors from signing unequal contracts with anyone except the Academy.
In future, all business concerning non-fiction books will be carried out by the Bureau of Contracts. There are many advantages to this procedure.
(1) The experience of all countries throughout history is that the best way to encourage creativity is to channel it through a bureaucracy specially constructed for that purpose.
(2) The Academy is better able to negotiate with outside companies than individuals. All comrades will remember how in the matter of our new accounting machines we ran rings round our suppliers forcing them to deliver a system unparalleled anywhere else in cost and efficiency.
(3) All the Bureaux of the Academy operate with incredible smoothness and competence. But, even amidst such perfection, our Bureau of Contracts with its famous slogan 'If it is not too difficult we will try and do it quite quickly' stands out. We are sure that all authors who come into contact with the Bureau of Contracts will find it an unforgettable experience.
We have not made these changes to increase the short-term revenues of the Academy. Indeed, the cost of expanding the Bureau of Contracts will ensure that there is no short-term gain. However, there is an expectation that in the long term we should get something. As the old Poldovian proverb puts it: 'Better ten zorbals in my pocket than a hundred in yours'.
The Bureau will not normally change current practice under which the author does the actual work of writing the book. The only difference that most authors will notice is the reduced payment and the additional form filling. However, the Bureau may sometimes take a more active part. The sales of a history of England under the first two Edwards could be much increased by giving it the title 'From Firm Sword to Red Hot Poker'. More intensive work (in which the author might not wish to be involved) could convert a book on 'Adolescent Angst in a Post-Capitalist Society' into a popular and money-spinning television family comedy. If we can not get anybody to publish a book on any terms whatsoever we may return the copyright to the author.
Since we will own the copyright, you will have no rights of any kind, but, in the event of a dispute, we are prepared to set up a special court to tell you so.
Some soft-hearted comrades have suggested that authors should retain some rights over their books. But, comrades, it would be an intolerable burden on our hard working Bureau of Contracts if it had to consult an author before arranging a contract with a publisher. Moreover, comrades, we might wish to sell all our future copyrights for a number of years to Mr Murdoch and we understand that he does not take kindly to nit-picking constraints on his own use of his own property.
We did not consult you comrade-authors when constructing these proposals. As the old proverb goes: 'Do not ask the frogs before draining the pond.' We consult you now but we remind you of another proverb of our Poldovian folk: 'Ten dogs may bark for all I care' (or as we will soon say: 'Fifty dogs may bark for all I care').
Professor M. E. MCINTYRE:
Mr Deputy Vice-Chancellor, I agree with Sir John Sulston's lucid and succinct submission, that there are two completely separate issues.
The first is that if someone makes a profit out of University resources, then the University should take some reasonable share of the profit. I agree with that. And I sympathize with those trying to manage the University's finances in hard times.
The second, completely separate issue is that, according to the actual wording I have read, the University authorities - whether intentionally or inadvertently - are about to take ownership of nearly all intellectual property, profitable or unprofitable, that is generated by members of the University. From next year on, it seems there will be an onus on an individual member of the University to prove that their IPR is an exception to this new and disastrous rule.
In considering the actual wording, we should remember that a lawyer, today, would have no difficulty in proving that all our IPR is 'sponsored' or 'commissioned' in one sense or another. We should remember that lawyers, today, claim to have proved something that is far more difficult to prove, namely that discoveries (for instance, discoveries of the naturally-occurring patterns called genes) are inventions. Lawyers, today, backed by billions of dollars, argue that there is no distinction between discovery and invention. (If you want chapter and verse, including a European Directive, see my home page on the DAMTP website at http://www.atm.damtp.cam.ac.uk/people/mem/).
(This legal situation, by the way, hardly helps those of us who try to improve the public understanding of science, as we are constantly enjoined to do. If I can't distinguish between discovery and invention, how can I even begin to talk coherently about science?)
I want to argue that the individual ownership, by default, of intellectual property generated by members of a great University is not a self-indulgent luxury - as the University authorities now seem to think - but, rather, an urgent and crucial necessity for humanity at large, for humankind. A sufficient reason is the issue of the safety and reliability of complex technological systems, in a world of ever-increasing technological complexity.
I mean of course the safety and reliability of food supplies, of transport, of financial transactions and IT systems, and of human health and habitat including the global environment - in short, the safety and reliability of everything that advanced human societies depend on - including, to an increasing extent, the safety and reliability of genetic engineering.
Imagine humans living on a planet whose life support system is controlled by a giant computer, put in place by a benevolent alien civilization. Imagine that the humans have just discovered how programs are stored, and that they have understood, say, half a percent of the programming language. Let's say they know nothing about network architecture and layers of software at intermediate and higher levels.
Well, according to present knowledge - which I'm still allowed to talk about - that is not science fiction. Apart from the aliens, it is science fact. The planet is our Earth, and what I have called a giant computer, of whose programming language we know hardly anything, is of course the biosphere - a vast information processing system, an IT system to end all IT systems (in more than one sense). The analogy is imperfect, but it's good enough for now.
Programming our own relatively simple, electronic, computers is a relatively simple business - orders and orders of magnitude simpler. Despite that relative simplicity, it has taken the methods of open science discovered in the Renaissance, alias 'massively parallel problem-solving', alias the peer-reviewed 'gift culture' in ideas, discoveries, and expertise, alias the open-source software movement - it has taken those methods of open science to achieve safety and reliability in programming even our relatively simple electronic computers.
Now imagine what would happen if control of our biospheric computer were to be handed over to some giant private corporation and their highly paid lawyers, along with complete control of the individuals working on the problem of understanding it. What will happen? At the first programming catastrophe - the first biospheric Blue Screen of Death, the first mega-BSE - there would be a public outcry. People would scream 'We Need Help'. We need help from independent scientists, and independent thinkers of all kinds, not under the control of any giant private corporation. We need a supply of Davids against these Goliaths.
If the University authorities have their way and the present wording on IPR stands - or indeed any wording that doesn't give, to coin a phrase, cast-iron, nay, titanium protection to individual IPR by default - there will be no such Davids at Cambridge. There will be no historians and social anthropologists who tell it like it is, without fear of censorship. There will be no independent legal minds. There will be no scientists free to speak out. Cambridge will no longer be a great University, one of the few remaining bastions of intellectual independence.
As Sir John Sulston implied, those bastions are, of course, fast disappearing from the face of this planet. Already in the Human Genome Project there was only one scientist - Sir John himself - able to speak effectively in public and rescue the genome from corporate ownership. Already in the open-source software movement, it was only the community of independent computer scientists, free to put their IPR into the public domain, that was able to stop a single giant corporation from controlling the entire Internet. If you don't know this story, see the links on my home page to the famous Hallowe'en Documents and related writings.
Remember, with AIDS, BSE, and the mere beginnings of cyberterrorism, we ain't seen nothin' yet. I rest my case for intellectual independence and for the drastic redrafting of the University's IPR policy.
Mr D. B. WELBOURN:
Deputy Vice-Chancellor, just fifty years ago I attended for the first time a Discussion in the Regent House. In those days reading out a written statement was at the very least frowned on, if not disallowed. I am horrified that we have come together two weeks running to read statements, which we are expected to have on disk. These should have been printed in the Reporter without wasting the time of a lot of busy people often trying in vain to follow what is being said by people, many of whom have not mastered the appalling acoustics of this building. Are you surprised that the outside world finds it hard to take seriously our pleas of poverty?
It is also almost thirty-two years since I became the first Director in Industrial Co-operation of this University, and had to think hard about the problems being discussed today. They have not changed, nor has the fundamental problem changed. It has merely been dodged. The fundamental problem is not one of intellectual property rights but one of money, which affects all of us, not merely those working in laboratories.
When Professor J. F. Baker, later the Lord Baker of Trumpington, invited me to join the staff of the Engineering Department, he said that he wanted me to take on as much consulting work as I could find time for, since this was the best way of getting both the knowledge and the methodology of the Department out into industry. Doing so would increase the wealth of the nation, making more money available, among other things, for education.
He said that in doing so I should earn fees, and that if I charged appropriately, they would not be negligible. He expected me to pay 10% of them into the research funds of the Department, since although I already had a personal reputation in industry, most of the work was likely to come my way because I was on the staff of Cambridge University.
To get this in perspective, at today's figures the University was paying me about £25,000 a year, while for my first successful piece of consultancy I was paid £5,000. As a result, the firm for which I was consulting, and through it the country, short of foreign exchange, was saved from importing oil to the tune of about £40,000 a year, not merely that year but for many years to come.
Besides consulting, I have also written two engineering texts, published articles, reviewed books, successfully exploited a patent, and talked on the BBC. In every case I paid 10% of my earnings into the Departmental research fund. This was not being virtuous; it was merely doing my duty. Had I remained in industry, any and all of my activities would have been the property of the firm for which I worked. It did not object to me earning a few guineas for an occasional article in the Poultry Farmer, or for a book review, but I should have been sacked had I earned in this or other ways more than 2 or 3% of my salary. My spare time was for recreation, not for work.
The Report before us today deals only with work done in laboratories. Work done in libraries also costs money. What we should have before us is a Report covering extra-mural earnings of all sorts, not intellectual property rights. We have spent endless hours discussing financial differentials for Professors, while quietly overlooking the far larger differentials due to extra-mural earnings of every sort. I am glad that the Professor of Modern History spoke frankly about this.
When I became a member of the staff of the University, I signed a declaration that I would promote its aims as a place of education, religion, learning, and research. I would suggest that in addition we should sign an undertaking to pay to the University some fixed percentage of all our extra-mural earnings on a scale to be determined. I suggest that 10% on the first £10,000 would be reasonable, and that thought might be given to making the percentage increase with earnings. Any regulations should apply to everyone from Vice-Chancellor to laboratory assistant, since I am aware of people at both ends of that range who have had extra-mural earnings as a result of their work in the University.
I say, and I stress, that the same rules should apply to everyone. Invitations to write books, to appear on TV, do not come because we work in any university, but because we work in Cambridge. Doubtless this is one of the reasons which weighs with those seeking personal chairs in Cambridge, rather than accepting one of the many which must have been offered them by other distinguished universities, if their work is as good as they believe it to be.
My experience as Director in Industrial Co-operation makes me believe that regulations with regard to patenting and exploitation in industry are necessary, but I do not think that they need to go beyond ensuring that would-be patenters and exploiters should discuss the matter with someone competent to advise in this field, since many subtleties are easily overlooked, e.g. the copyright law can be more useful than the patent law. Having listened to the advice, they should be free to go their own ways, and indeed, as a previous speaker has forcibly proposed, there should scarcely be any change to the present situation.
Mr Deputy Vice-Chancellor, I am well aware that my views will arouse fierce disagreement. We make a great fuss about differentials in Professorial stipends. Other differentials are far greater.
Dr H. LEE (read by Dr M. CLARK):
Mr Deputy Vice-Chancellor, the proposed change in IP seeks to impose on academics provisions commonly imposed in commercial entities on their employees and provisions (by virtue of the Patents Act 1977) that apply to employees in the absence of any express provisions relating to intellectual property rights in their contract of employment.
But:
• Many University research appointments are for fixed terms limited to the period of grant funding without the security of continued employment by the University.
• Funding for the research project is rarely provided by the University.
• The University, as employer, gives no direction or input to the research.
• The University is usually unable to fund more than the initial patent filing costs. Indeed, it often files only one application instead of considering the full commercial patent strategy at the initial filing stage.
• The University is unlikely to take proceedings to defend the patent application and often does not have the resources or contacts to use patent agents experienced in the specialist field. In other words, the University is not able to incur such costs as may be appropriate to protect adequately the employees' inventions including full worldwide patent filings and defending opposition proceedings and/or taking action against infringements.
Many academics have chosen to work in a University environment because of:
• The flexibility in the conduct of research.
• Their ability to manage their research.
• Their ability to be closely involved in considering the patent policy for an invention, whether it should be put into the public domain or patented and if to be patented, to consider whether or not an early industrial partner/licensee or a large number of licensees should be sought.
• Their ability to manage both the ethical and moral implications of their research. The academic is in the best position to be aware of the potential value of the invention and also has the best technical knowledge. In many of the quoted success stories of commercialization, it is the academic who has located the appropriate commercial partner for the invention. Indeed, often the partner/licensee will be unwilling to take the invention without the collaboration of the academic.
• The academic feels comfortable that he has control over data, laboratory notebooks, etc., generated in his research and that if he is to resign, it will not all be removed from his control.
The reasons why many of us choose to work in the academic environment also benefits the University:
• It obtains the benefit of our research publications.
• Considerable amounts of grant funding are obtained by academics and directed through the University accounts thus raising levels of 'University research funding'.
• In many cases the University's contribution has been recognized by equity and/or a licence fee from the commercial entity.
• The academic has the ability to act as a Consultant thus fostering closer links between the University and a commercial entity and possibly generating further research funding for the academic group.
The University is now seeking to impose on the academic researcher provisions commonly applied in commercial entities but is fully aware that it is not giving the benefits to its academic researchers they might be able to achieve in the commercial environment. Indeed, for many where the majority of their work is research, they will be in a far worse position by continuing to work in the University than if they had created an invention in the course of employment by a commercial entity.
Concerning the ability of the University to manage and exploit the inventions, I have the following questions:
(1) How does the University intend construing the provisions of the Patents Act and in particular, what is deemed to be the performance of the normal duties of employment? How does one delineate between an invention made by an academic at home on a Sunday morning and one made whilst in the laboratory at 10 a.m. on a Tuesday morning, where both relate to the core area of research? If ones creates copyright work at home at the weekend, is that owned by the University - particularly if it is done at the weekend because the academic did not have time to do it during the 'normal working hours'?
(2) The ability by the University to exploit the IP in a manner to achieve its best value appears to be entirely dependent on the quality of the work to be done by the RSD and this will depend on its funding. How do the current resources compare to other institutions such as the University of Oxford, Stanford, or indeed, MIT? What resources will the University commit to the RSD in the coming three years? Specifically, what steps are being taken to ensure that:
• It can recruit staff with the appropriate expertise to evaluate and exploit my specialist area of research;
• It can properly assess patent strategy and fund and pursue patent applications as a commercial entity would to obtain maximum value from the invention;
• It can effect a proper business development/licensing role, identifying and assessing potential licensees and pursuing contact and negotiations with them;
• It can afford to and will choose and use advisers (patent agents and lawyers) with experience and expertise in the relevant field, both in the UK and in the licensee's country, to obtain the best outcome.
(3) When the academic leaves, does the University intend to retain all data, software, laboratory notebooks, and materials that may have been purchased or acquired by the academic in connection with his employment? If so, what provisions has the University made to store and access such large volumes of information? If not, then how does the University intend to effectively prosecute and protect the inventions?
(4) What is the University proposing to give as some comfort to the licensee on future IP? How does the University intend dealing with existing arrangements relating to IP previously licensed out and arrangements already entered into on future IP? Any potential licensee will be reluctant to enter into any licence agreements if the University is free to license future IP, which may be directly competitive to the original IP, or may be dominated by the original IP, to a third party?
(5) Although there is the possibility of other agreement, in cases where the University has had very little involvement in the work, funding or provision of facilities for the creation of the invention, how are the academics protected if the University refuses to agree to a more equitable split of proceeds?
(6) It seems that the inventor's reward is linked to the success of the RSD generally and not to the direct results of the invention. No budget for RSD costs is agreed with the inventor at the outset, so that one is aware of the costs which will be deducted and the amounts that will flow back from CUTS to the University (of which the inventor will get a percentage). How does CUTS avoid the position where the success of one invention is subsidizing all other IP exploitation? Given that the inventors do not hold shares or otherwise benefit from the success of Cambridge University PLC, is this equitable?
(7) If the University owns the invention, the inventor(s) have no legal right to be involved in any manner. Moral rights and 'nice words' are not enforceable. What comfort do the inventors have as to their involvement in the exploitation process?
(8) What if the University does nothing with the invention, is it proposed that the inventor will have any rights to take it back and exploit it?
(9) The academics cannot publish or disclose any intellectual property to a third party without the consent of the University (since it belongs to the University); what is proposed as to the manner in which the inventor is to be permitted to present at conferences, publish papers, discuss the work with academic collaborators, etc.?
(10) What are the specific rules/guidelines by the University concerning consultancy arrangements?
Whilst I recognize that the University, as a publically funded body, needs to maintain accountability for inventions generated by its employees, I have major concerns with the proposals being made. I have heard no good reasons why the current régime, giving the inventor the option to use the services of the University Technology Transfer Office and providing for an equitable share of proceeds, should not continue and why the University should move in one swift step to ownership of all intellectual property created by any employee. Further, unless the University has specific answers and policies already in place to address the legitimate issues many have raised, I consider that the University is seeking to pursue a policy where it has not considered fully the potential consequences.
Dr N. J. HOLMES (read by Dr M. CLARK):
Mr Deputy Vice Chancellor, I intend to be as brief as possible. Much has been said in the press and elsewhere in the run up to this Discussion but I want to focus attention on the real essentials. This Report finishes with a recommendation in paragraph 16 for approval of the policy set out in the Annex. So, it is the wording of the policy contained in that Annex which is the critical issue. What is contained in that Annex is, in my view wholly unacceptable. There are, I believe, two distinct problems. First, the claims are too broad. Second, they quite unnecessarily claim ownership. I have no problems with giving the University a share in profits from exploitation of IPR. I do object to having no legal rights to control of my intellectual property. I do not exempt IPR generated in the course of externally funded research here either. I think we missed a point there last year.
So if I think the annex is all wrong what should it say? It should unequivocally state that the creators, inventors, originators, authors of IPR within the University own the IPR they produce. It should then define specific circumstances in which the University is entitled to an assignment of rights in IPR including a right to a share in the profits of exploitation where appropriate. It is important that, in direct contrast to the proposal before us, the default position should be that all rights lie with the individual creators. Only under clearly defined circumstances should the rights of inventors and authors be circumscribed. It will probably be appropriate to include the possibility that ownership is joint or vested in another party where an explicit external agreement so states. Before there is too much outrage, I will say that my proposal is not very different to the position that existed only 18 months ago.
What are the benefits of the approach I advocate? In my view there are two principal advantages. Where unusual forms of rights are involved, for example copyright in sound recordings, videos, software, and database rights and any novel forms of intellectual property, these will remain with the authors unless a specific case is made to the contrary. One of the extraordinary things about the present Report is that it speaks (in paragraph 4) of making no proposals to change policy on copyright, but the actual wording of the Annex seems unequivocally to give ownership to the University of copyright in works other than 'normal forms of academic publishing'. Although this vague term is nowhere defined, it must mean that copyright of some material IS intended to pass to the University. This therefore represents a change in policy on copyright contrary to the assertions in the Report.
The inexactitude will inevitably give rise to differing interpretations. Uncertainty is enough to give rise to problems. I am the author of a website on immunology. I receive regular requests for permission to use my material, particularly artwork, in a variety of ways including some from commercial publishers. I have not always granted such permission and have never accepted any payment when I have. External organizations may well question my right to grant or withhold such free licences if I am not unambiguously the copyright holder.
The second principal advantage is that of control. Some of us failed to notice the subtle but legally important change in the policy which came into effect last year covering IPR arising from externally funded work. Previously there was a duty for staff to assign rights to the University; now the University owns the IPR. As I understand it, the earlier wording left inventors with some rights to control exploitation or otherwise. If we do not own our IPR we have no legal rights to control it. Promises of consultation, however sincere, are not legal rights. Principal Officers, Council members and even Directors within the Unified Administrative Service all inevitably change with time. If anyone doubts that their successors views may differ, they should compare the University's response in a submission from the then Vice-Chancellor to the CVCP's Working Party on intellectual property rights in 1977 with the present Report.
I welcome the recognition by certain members of the General Board and Council that the wording of this policy needs revision, that in fact the Annex does not explicitly give effect to some of the assertions within the Report itself. However, I believe that a fundamental rethink is needed, rather than mere clarification. I also request that the Central Bodies proceed by publishing a new Report. Given the strength of feeling that this issue has generated and the complexities of the issues involved, any new proposal for change needs an opportunity for further Discussion.
Dr M. R. CLARK:
Mr Deputy Vice-Chancellor, I first feel obliged to declare my income from patents and inventions since the Vice-Chancellor, in defending the proposed policy, indicates that most of the opposition is driven by an objection to sharing income with the University. He is mistaken. Many, like myself, are happy to share income with the University, yet oppose the proposed policy.
From 1986 to October 2002, my records indicate a personal involvement in thirteen separate items of commercial IPR, including eight priority UK patent applications, and assignment or licence agreements with nine different commercial companies in the UK, USA, and Finland. Many did not fall under the ownership of the University as laid down in the IPR policies of 1987 and of 2001, but in every case I have shared revenue with the University, through the Wolfson Industrial Liaison Office and, more recently, the Technology Transfer Office. During these sixteen years, the total income I have received has been £128,735.55 before tax. Most, but not all, of this income derives from a single product, Campath, assigned to the UK Government's National Research and Development Corporation (NRDC) on 20 October 1989. During this same period all this IPR has produced royalty income for the Government-established BTG (founded from NRDC), the Medical Research Council, and the University, of more than £6.5 million. My total share over sixteen years, less than 2% of the royalties, is about the same as the declared annual University salary of several of our senior officers. Am I driven by greed? I am happy to be judged by my peers.
If my research aims were purely commercial, then I would be richer working in industry. My university salary last year was £30,585 before tax, but I have always felt that this comparatively low salary was compensated for by my academic freedoms. So my opposition to the proposed policy is ethical and moral, and is a question of the erosion of those academic freedoms.
Whilst I welcome the statement by the Council at the beginning of this Discussion, I wonder if they would consider the following two points?
(i) In reconsidering this policy, and in referring the issue back to the Research Policy Committee, could they ensure that the Committee has representatives appointed to it who thoroughly understand the very many valid issues raised so far in Discussion?
(ii) The Report refers to external legal advice having been obtained on a number of issues (Paragraph 7). Could Council please publish the learned Counsel's expert opinions in full, for all members of Regent House to see?
Many others before me in Discussion have pointed out the confusing and ambiguous statements within this Report so whilst I support their statements I will try to concentrate on additional points. It is very important to remember that what is being proposed in this Report is a legal change in the rights affecting the majority of members of the University. As in any legal document a failure to pedantically adhere to the correct words and definitions can lead to costly misunderstandings and might ultimately have to be resolved in the courts. As pointed out by Dr Nick Holmes, we should remain focused on the main issue, the wording of the annex to the Report, and how this might be legally interpreted, both now, and in the future, when many of those on Council, the General Board, and in administration will have changed.
I have read the Reports on IPR very carefully, I have read the rhetorical writings and press statements on this subject coming from the Vice-Chancellor's office, and I have listened carefully to the words in support of the policy here in Discussion from Professors Minson, Peters, and Badger. I have no real disagreement with them when they argue that those who make use of substantial University resources, or those who are under contractual obligation to a sponsoring body or organization, and who as a direct result of these circumstances produce income through a commercial application of the work, should share this income with the University and/or the sponsor. However, in all of these arguments I have not heard a single convincing legal reason as to why it is necessary for the University to assert ownership over most of the IPR of all of its staff in order to achieve this revenue sharing with just a few staff. Rhetorically they speak of a clarification of the situation but what they mean by this is a change, indeed a reversal, in ownership.
(iii) Could the Council provide the legal arguments as to why University ownership of all IPR is necessary in order to achieve revenue sharing on only a fraction of this IPR?
The only case I can think of is that raised by Professor Ashburner when he asks if the administration have plans to mortgage our future IPR in return for the rewards of immediate investment.
Despite the other rhetorical claims from the Vice-Chancellor that staff will be rewarded for this change with 'The Lion's Share', the true position is that the majority of the staff of the University will lose most of their rights in IPR, yet they will be rewarded with no improvement in pay and conditions, and no inventors share, because a third of nothing is nothing, and most University research does not produce anything in the way of immediate commercial income. But they will all lose their rights.
From 1987 until 2001, the University has had a functioning policy of revenue sharing without directly asserting ownership over its staff's IPR. However, Professor Minson in his remarks misrepresented the policy when he said 'it has always struck me as odd that if my research performed in the University is funded by the Medical Research Council then the University owns any resulting intellectual property'.
Sorry, Professor Minson, but this statement misrepresents the policy in force from 1987 until it was amended by the 2001 policy. A correct reading of the policy is that the policy mentions a contractual obligation for assignment of rights in inventions produced with the support of the Research Councils, 'The undertaking will state that the person concerned agrees to consult the Wolfson Cambridge Industrial Unit on the possibility of exploitation of any invention before disclosing it, and, if requested, to assign his or her rights in such intellectual property to the University or its nominee in return for an equitable share of the proceeds of exploitation.'
... whilst the 2002 Report mentions ownership of all IPR by the University.
Note how invention has been changed for intellectual property right. Also a contractual obligation to assign commercial rights in an invention if requested, has been substituted with ownership by the University. An assignment is a deed of transfer which can include negotiated contractual obligations on the receiving party as part of the transfer of ownership. If you don't own something, you obviously can't be asked to assign it.
(iv) Could the the Council provide figures on the proportion of Research Council funded projects awarded between 1987 and 2001 which resulted in a request for an assignment of ownership of an invention?
(v) Were any requests to assign ownership of an invention ever refused, and if so how many?
(vi) If requests were refused, could Council tell us what reasons were given?
It is worth remembering that laws on intellectual property rights were originally enacted in order to allow those who had put a lot of creative effort into producing something, to stop their work being copied and plagiarized by others. Within a University we normally put a high status on originality and we penalize those that plagiarize the scholarly work of others. The initial ownership of the IPR is normally given to the creator of the work, but in some circumstances it may pass to an employer. But don't forget those in a university are not like employees within industry who work to a common commercial goal. We are not directed by our employer as to what research we do, we apply for our own research funding, we decide on our own research methods, we analyse our own results, and we write the reports and publications. We are even expected to develop and hold ethical and moral views on the conduct and the applications of our academic research. Importantly our success is not generally held to be dependent upon an immediate commercial benefit, otherwise the majority of members of the University would certainly be classed as failing.
However, if the University asserts outright ownership in our IPR the decision of how it is to be exploited will then chiefly be one for administrators. If I worked in industry, it would be reasonable to assume that I agreed with how the company exploited its IPR. A patent is a right to stop others from making a similar product, and it can be used to demand payment for a licence to copy an invention. Charging a high royalty on a patent based on publicly funded research is equivalent to charging the public twice for the same product. They first paid the University to do the research; why should they then pay the University again for access to the product? The University should acknowledge our right to hold many ethical views, such as against the patenting of gene sequences or in favour of non-exclusive patent licences, and to choose how our IPR is used. Although the policy declares that the University would normally work with the creator of the IPR in commercial exploitation, this declaration is merely a promise, hard to enforce in court, and is not a legal right over an assignment of the IPR.
Professors Peters and Minson both mentioned how different sponsors had different rules on IPR. Peters even acknowledged that the Wellcome Trust in funding the Sanger Institute had supported a policy of not patenting human genes and he suggested that we could make a case for different rules in different situations. Well up until recently, we did have a choice. We could apply for research funding from different agencies, and if successful we were bound by different contractual obligations. If we didn't accept conditions of the contract we could seek funds elsewhere or attempt to carry out the work using the more limited resources of internal funding. That choice of contractual obligation is an important freedom, and the removal of the difference in contracts by creating one contract with the University owning all the rights, is a removal of that freedom.
The Report (para. 7) states that the RPC rejected an earlier proposal from the WILO, that the creators and the University should share in the IPR ownership. A declaration of shared interest (note I avoid the use of ownership) would allow all parties - the University, the sponsor, and the creator(s) - to enter into a contract, and exercise some legal control. If necessary, these separate rights could still all be combined into a single ownership by negotiating a mutually acceptable assignment of rights. This has been done for most of the IPR with which I have been involved, and so I assure you it works in practice.
John Sulston made the point very succinctly and clearly. It is not necessary to assert ownership and to erode our basic academic freedoms in order to share in the revenue from commercial exploitation of certain forms of IPR such as inventions. The 1987 IPR policy demonstrates that it is possible to arrange contractual obligations dependent on funding or support. Take careful note of John Sulston's words, they make perfect sense. We can work for the public good, and share income with the University, as asked by Minson and Peters, but without surrendering our important rights.
Much of the rhetoric coming from the Vice-Chancellor's office, and discussed earlier by Minson, Peters, and Badger, seems to be that this policy is necessary to bring us into alignment with other UK and USA universities. Well I ask myself, if we are a great University why should we be content to stand in alignment, or simply to follow where the herd leads? Why can't we lead from the front, set an example by practice, and show that we can benefit society through our best research and teaching practice, and without compromising our academic principles? A previous Vice-Chancellor, Alan Cottrel, when asked to align Cambridge with other UK universities over IPR policy under the 1977 Patents Act, wrote 'Cambridge University is unable to accept the recommendations of the Working Party. It recognizes the difficulty of attempting to produce guidelines for patent procedures in view of the lack of precision in the 1977 Act when applied to universities, but considers the recommendations of the Working Party both wrong in principle and unworkable in practice.'
Why can't our present Vice-Chancellor lead the pack, rather than follow the herd?
To me this debate is not about money. It is about protecting academic freedoms and retaining some legal control over our intellectual work. I ask members of the University - are we 'techno serfs' or conscientious and free individuals?
Dr P. HAZEL:
Mr Deputy Vice-Chancellor, my name is Philip Hazel; I am a Computer Officer in the Computing Service. I have been writing software for the University for more than thirty years, most recently the software that runs the central e-mail servers. It is the application of this Report to software that concerns me most.
My colleague Bob Dowling and other earlier speakers in this Discussion made several points about free and open-source software. I would like to add my support to their Remarks.
The University uses a great deal of free and open-source software, for which it pays nothing. This software underpins major services such as the University's presence on the World Wide Web, as well as providing many of the software tools that are used throughout the University. It is only right that a large institution such as ours should give something back by making its own contribution to the non-commercial software community.
Free and open-source software is developed in the pursuit of excellence, not in the pursuit of financial gain. It seems to me that this is an appropriate motivation for people who work in a university. All University staff, both officers and assistants, should therefore be able to release free software without formality if they so desire. The important words are 'without formality'. The delays of bureaucracy are likely to be stifling, and it would be intolerable if one had to get permission from Research Services before publishing a few lines of code that constitute a bug fix.
This Report lumps together all kinds of computer program, using the single word 'software' without qualification, but real software comes in many shapes and sizes. There are useful programs that are only half-a-dozen lines long. These are treated much like food recipes, which are, on the whole, a form of intellectual property that people share without a second thought. I hope that there was no intention to lay claim to this kind of software, because any attempt to do so would be ridiculous.
So, although it is not clear on this point, let us assume that the Report is intended to relate to 'substantial' software products, fuzzy though that concept may be. I do not object to the commercial exploitation of software. Indeed, I have myself sold software in the past - I hasten to add that it was written in my own time using my own computer. However, the software I have recently developed for the University is released under a free software licence, because I believe that commercial exploitation of this product is neither desirable nor practical.
A previous speaker suggested that the University would find it hard to exploit an invention against the inventor's wishes. Nevertheless, if the University owns the rights, it can presumably stop the inventor from giving the invention away. If a University researcher invents the proverbial better mousetrap, and wants to give it to the world, what will happen? Will he or she be prevented from doing so?
In fact, in the case of software, I suspect that exploitation without co-operation would not be difficult, for the following reason: if a physicist, for example, invents something, several years of subsequent development are normally required before a product emerges, but with software you have the product as soon as the program is written. This is why it is important for University staff to have the unconditional right to release their software under a free licence if they so wish.
Dr G. R. EVANS:
Mr. Deputy Vice-Chancellor, the issue before us is whether the Regent House will choose to assert intellectual property rights over its own members' work and that of other employees of the University. It is not for the Vice-Chancellor publicly to take sides on this, as on our governance debate, not at least without making it very plain that he speaks in an entirely personal capacity. And if he does, I do not think the Press Office should be making his article for the Times Higher Education Supplement Text-of-the-Day on the University's Web page. It is our decision and the Old Schools and the central bodies have no authority.
I was pleased to hear Mike Clark stress that for many of us it is the freedom of thought and expression which is the heart of the matter. No one can doubt his proven integrity on that point. I too have a well-founded fear that the Poldovian Academy's promises about leaving certain categories of work alone will soon be forgotten and we in the humanities could all be having to get permission before we publish a book or an article or write for a newspaper or make a speech in the Senate, and the University would be in a position to try to control what we say. And for the scientists? As Mike Clark put it in the Financial Times, 8 September 2002, 'I will lose all control over how my ideas are developed in industry'.
You think I exaggerate about the threat to our freedoms? Freedom to dissent? Mike Clark posted on the newsgroup (ucam.change.governance) the message he had received, that individual opinion was not allowed. 'The School's Council has agreed to support the new IPR regs. and will expect the School's Departments to comply … You may wish to refer … to [your] Head of Department who will have endorsed the University's position on IPR'.
Line-managed thinking, about decisions such as this, and about the right to freedom of expression itself is upon us if we let them fool us. Compare the attitudes of Oxford's Vice-Chancellor, in his annual address published in the Gazette of 17 October:
'The prosperity of the knowledge society is not be acquired simply by whipping on science and technology. It will depend upon bringing through our universities young people who learn there independence of judgement, confidence in their own intellectual ability to make informed decisions, the capacity to scrutinize evidence for meaning, the ability to distinguish the true from the merely apparently true, and the habits of creative thought and action …'
'What impoverishment of culture, what weakness of purpose, what shallowness of principle, what capriciousness of action attend a society that holds cheap the understanding of human complexity and disregards the hard-wrought basis of civilization. Have we not learned even this from the last century?'
I strongly urge readers to find the Gazette on http://www.ox.ac.uk/ and read the whole of that speech against Sir Alec's annual address on 1 October here, which is now in print in the Reporter.
I do not approve of all Oxford's intellectual property arrangements, but they are clear and even-handed. You know where you are. As evidence of the unreliability of firm policy statements and promises in Cambridge under the present régime, let me just quote the words of our Vice-Chancellor before the House of Commons Select Committee on Science and Technology in February 1999:
Para. 1117. (Professor Sir Alec Broers) 'It is a culmination of things over the years. First of all a concentration of excellence is essential. There is very much a critical mass in a lot of these things but there are many other universities which have also been very excellent in this area; the history of various companies, Pye and Philips and the Cambridge Instrument Company and others, but it has been as much as anything a critical mass and an innovative spirit which may be tied to the fact that we place very few constraints upon our academics. Academics own their own intellectual property. This is something we may modify slightly to help people develop things professionally but they have owned their own intellectual property and are relatively free to work with others.'1
Compare that with what he and the Press Office said in their recent article for the Times Higher Education Supplement. Compare it, too, with the promises of 2001, that only externally-funded research would be affected.
I am pleased to hear another call today to bring all sorts of earnings-on-the-side into the framework of the present debate. Our own Vice-Chancellor, ably assisted by the Directors of Communications, argued in the THES that many believe that 'people who make a good deal of money from commercializing inventions that have been achieved on the back of government grants and in University laboratories should indeed give something back to the University'. Perhaps, Sir Alec, the newspaper subedited out your statement that you would of course be giving an equivalent proportion of your annual £65,000 from Vodafone and Malcolm Grant of his £20,775 as Chairman of the Local Government Commission back to your employer the University. Mind, it was not in the Press Office version either. We should all be interested to see your Time Allocation Survey returns, both of you. You two are, after all, 'true individuals' in taking on this work, but I hesitate to call you 'selfish'.
I say again, the choice is ours. For the sake of grabbing some of the richer pickings, and, it is rumoured, mortgaging them to a waiting merchant bank to get us out of a little present financial difficulty, we are invited to give up some of the freedoms which are at the heart of our purpose as a University, the pursuit of truth and the right to 'speak the truth unto power'. We are doing so, in some numbers, and I hope we shall keep it up. Those deriding the huge impact a Discussion can have do seem to be the ones most laid back about the introduction of a Poldovian Checkpoint we must pass before we utter.
The Reporter, 31 January 2001, pp. 429-31, proposed a Grace. We let that go through. When people accuse me of protesting too much and too often, and before they vote to allow those presiding at Discussions to cut off speeches in the middle with accusations of 'irrelevance', they should perhaps consider the consequences of a lack of vigilance. Ross Anderson said last week that he now wishes he had been alert at that moment. A few of us did speak on the first move in the game we now see for what it was (Reporter, 21 February 2001). But they took no notice. A great many more are raising their voices now. I suggest all read Council Minute, 22 July, 221, about the creation of Cambridge Business within the Research Services Division. Poldovia PLC? Or an 'Inc' of Enronny persuasion?
The Council could choose not to take this forward. They will almost certainly press on regardless, rejecting all that is said today and last week against doing so. See the Notice in the Reporter, p. 5, for the methodology.
Remember, the Regent House has only to say no. Call a ballot, while that is still possible, and vote non placet. If the Press manages to send out the ballot papers with the flysheets next time (see circular about today's 'administrative error').
1 http://www.parliament.the-stationery-office.co.uk/pa/cm199899/cmselect/cmsctech/17/9020103.htm.
Mr N. M. MACLAREN:
Mr Deputy Vice-Chancellor, this intellectual property rights proposal would make it University policy to treat all University officers in a similarly harmful way to the way that that some Computer Officers have been treated. And, by harmful, I mean not just to the people involved, but to the University. I shall give a recent example of how this attitude lost the University money - only a few thousand pounds, but the principle applies more generally - and I know of very able and productive Computer Officers who have left because they were being exploited.
Quite recently, I received an enquiry from a company that wanted to buy rights to a program I had developed. I contacted the Research Services Division, and was told that this was an easy matter, because I (as a Computer Officer) had no rights in it whatsoever. That was completely false, for too many reasons to go into now, but I did not have the time, energy, or inclination to argue the matter. So I let the offer lapse, the University lost the opportunity for some money, and I arranged with the Director of the Computing Service to put the program into the public domain (in the USA sense).
From speaking to my colleagues, both Computer Officers and those in teaching and research, many people feel similarly. Few are very interested in making money, but even fewer like being treated in a way best described by the neologism 'technopeasant'. It is essential that all inventors of intellectual property feel that they are joint owners with the University and not just a modern form of serf. Yet, outside the good example of the Computing Service and one or two Departments, this is exactly how many Computer Officers have been treated.
But this sort of problem is only one harmful aspect of the current proposals. I shall not say much about the importance of allowing individuals to put the copyright of software they develop into the public domain, as those points have already been made. I know very well the level to which public-domain software is critical both to the functioning of the University's computers and to our international reputation.
There are much more serious issues that are looming, because it seems almost certain that software patents will become legal worldwide, given that they are already being issued in the USA and there is strong political pressure from there in favour of them. The area of software development is one in which the majority of patentable ideas are invented by individuals, because you do not need expensive laboratories and equipment. Linus Torvald may be exceptional, but Linux is not an exception, and the same applies to the algorithms and techniques that will be patentable. So what will be the consequences of extending this IPR proposal to software techniques?
In my career, I have thought up many dozens of computing techniques, almost all of which had been previously invented by other people. However, I cannot assume that what I think up is not patentable, because I believe that I have been the first inventor of perhaps half-a-dozen useful and now widely-used techniques. There are a good number of members of the University who can say something similar. If this proposal goes through, those inventions would be the University's property, not mine, and my concern is that such modest but useful inventions would be stifled by a bureaucracy designed for much larger issues.
These inventions are simply algorithms, techniques, and fragments of code that I have made freely available for non-commercial purposes to people who have consulted me: students, colleagues in other universities, small companies, charities, standards committees, and suppliers of software to the University. This proposal would make aspects of my University work almost impossible, as I should have to seek permission before making possibly patentable suggestions even to students. And would the University give me a sabbatical year to search the literature for prior art on a patent that might be worth tens of thousands?
There is a worldwide community of workers in my area who realize that the advantages of open collaboration vastly outweigh those of reserved rights, and there are dozens of members of the University whose job includes providing help and ideas to students and others. All of us will be affected by this proposal. It has been said by several observers that the main reason for the incredible dynamism in software development is precisely because software patents are (or, at least, were) not legal. I agree that this is changing, and we shall have to adapt, but let us preserve at least some of what was good.
I should like to end with what I think are the essential principles of how intellectual property should be handled in a university context.
Firstly, the ownership of intellectual property should be joint, with some appropriate arrangement for payments if either party exploits it. The proposed scale is plausible though not generous if the University puts the effort into the exploitation, but it is unreasonably grasping if the inventor does. Also, it does not give the owner any property rights, which is unreasonable.
Secondly, any inventor of intellectual property should be entitled to put it into the public domain, or make it freely available for use for non-commercial purposes (including donating licences to most not-for-profit organizations), without needing permission. This is essential if we are to keep the University's overheads within bounds, or even to pursue our existing collaborations.
And, thirdly, this should apply to all intellectual property, copyright, patent, or other, and all members of staff; the only exception should be where the instructions are explicit, precise, and detailed, and the person doing the work is not adding intellectual property to the project.
Dr M. SAYERS (read by Dr R. ANDERSON):
Mr Deputy Vice-Chancellor, I speak as Director of the University Computing Service and will confine my remarks to the subject of open source software.
Cambridge benefits greatly from the activities of academics and others throughout the world who have developed and released excellent software through the various open source initiatives, especially the Free Software Foundation which sponsors the GNU project and GNU/Linux. From time to time our own Computer Officers have developed software or alogorithms which have met a need in the world outside this University and we have been pleased to release it, free of royalties, through open source mechanisms. This has brought considerable credit to the University; indeed our e-mail server software is used by hundreds of the larger universities and internet service providers throughout the world, and it has relieved us of the burden of staffing the support organization which would have been needed had we sold the software. It has also helped us to feel that we have put something back into an organization from which we have got so much.
I ask the Council to be careful not to put impediments in the way of our continuing to participate fully in open source initiatives, because the balance of benefits is overwhelmingly in our favour, and also to be careful not to treat Computer Officers any less favourably with respect to IPR than their academic colleagues.
Professor J. CROWCROFT (read by Dr R. ANDERSON):
Mr Deputy Vice-Chancellor, while I was at UCL, where I conducted Internet-related research from 1981 until 2001, I was involved, in various roles via various types of collaborations, in seven startups. six were successful, one was not. The successful ones were set up by people by moving outside of the universities they were rooted in. Often they had continuing research relationships with their founders' alma maters, and funded graduate students there for many years afterwards. One of the sucessful companies is a small outfit called Cisco. Another - called Orchestream - came out of Imperial, but was largely separate and is still trading in the UK.
The unsuccessful one involved UCL. There are several reasons, amongst which are certainly the lack of correct incentives for the UCL finance staff involved, and the complexity of dealing with second and third stage funding when one is encumbered with multiple owners from the start. Three body problems are much harder to solve than two body ones.
A modest factor in my move to Cambridge just over one year ago, was the lack of these fatal interdependencies here. It is possible that proposed changes in the rules concerning IP might make people in the future think differently about their choice of institution.
I do not think there is any evidence that the proposed system would improve exploitation, and there is significant evidence in my non-trivial experience that more liberal approaches are more successful for the inventors and for their employers, in the long run.
Professor I. G. ROBERTS (read by Dr R. ANDERSON):
Mr Deputy Vice-Chancellor, the Linguistics Department formulated the following view of the Report at its meeting of 8 October 2002:
'Whilst we understand the University's reasons for trying to change the situation regarding IPR, in a way which fundamentally changes our conditions of service, we are seriously concerned by central aspects of the current Report. Although it may be thought that the issue of IPR primarily concerns inventors and perhaps individuals who produce original software, and therefore that it concerns those doing research in the humanities rather less, we wish to express our opposition to the Report on the grounds that the notion of 'normal academic forms of publication' is insufficiently clear. This notion may or may not, it seems to us, include popularizations of specialist fields, for example, and may thus be interpreted as giving the University ownership of work carried out by an individual to a large extent independently of and in addition to his or her normal teaching and research duties. Under the present rules, and, as we understand them, under the régime adopted at MIT and Stanford, such works unambiguously belong to the individual. Under the proposed changes, ownership would depend on the interpretation of this clause. We would therefore recommend that the current proposal be rethought and redrafted.'
Mr R. SANSOM:
Mr Deputy Vice Chancellor, let me first introduce myself. I am Robert Sansom, I have a Cambridge University M.A., and I am here today to speak as Chairman of the Cambridge Angels, a group of local high-tech and bio-tech investors and entrepreneurs. We have, between us, generated many businesses that have contributed significantly to both the UK and the local Cambridge economy. Some of us, as a result, have made substantial charitable and other endowments to the University and to the Colleges. We actively continue to start new enterprises and invest in emerging companies, many originating from the University.
The Cambridge Angels are concerned by the proposed changes to the University IPR policy. We have discussed the matter between ourselves and met with the Vice-Chancellor.
We believe that it is healthy for ideas that have been developed within the University to be utilized, and it is right that the University should benefit from its expenditures. However, we would argue the need for clarity of ownership and efficiency of process. We have been aware, for example, of possible investments in the biosciences area that have been refused because the ownership of the relevant intellectual property was unclear. Therefore, we wish to make two recommendations to improve the proposed policy.
Firstly, the drafting of the Grace must make clear what intellectual property is included. We suggest that only exploitable intellectual property, such as patentable inventions or software copyrights, that the inventor has decided not to publish be included, and that University ownership only applies when there has been an element of University investment, either as work for hire, or when substantial University facilities have been used, or when the intellectual property has been assigned to the University, for example as the condition of a research grant.
Secondly, there must be clarity, efficiency, and timeliness of process. We believe that there must be an element of competition in this process in order to maintain this efficiency. We would like inventors to work with the RSD or its successors not because they have to, but because they are seen to be the best route to exploitation of the invention.
Therefore we recommend that the Grace includes an automatic reversion of rights to the originator if the University does not commit to exploit the intellectual property within, say, 60 or 90 days of notification by the inventor. This commitment must include the assignment of the potentially substantial resources that may be required to further the exploitation of the intellectual property.
Indeed, the Joint Report of the Council and the General Board on the ownership of intellectual property rights (Reporter, 2001-02, p. 1268) anticipates this by stating in para. 13: 'As is also current practice, the University may disclaim and assign its rights in inventions to the inventors in cases where the inventor is keen to commercialize intellectual property but the Research Services Division is unable to support such commercial development'.
The issue is thus not one of blanket acquisition of intellectual property, but of careful choice of which inventions to offer to invest University resources into. We feel that the emphasis of the Grace should shift to be about mechanisms for deciding which intellectual property, given that the inventor has decided not to publish it, should be the recipient of University funds for investment and exploitation, be that payment of professional patent and other fees, grants for further development, or investment into a spin-out company.
With these recommendations, we believe that the University can create a 'win-win' environment. On the one hand, when the University decides to exploit an inventor's intellectual property, the University will apply the resources to make the exploitation beneficial to both the inventor and the University. On the other hand, when the University decides not to exploit an inventor's intellectual property, the inventor is free to make the best job of exploiting and benefiting from it.
Mr R. J. STIBBS:
Cur opus confectum frustra adgrederis. ('If it ain't broke, do not fix it'.) To which might be added: 'If, despite all the evidence, you are determined to fix it, enlist an experienced fixer.'
I should declare my interest. I am a founding and current director of CRIL (Cambridge Research and Innovation Ltd), a company set up in 1987 with University, College, and City funds for early-stage technology transfer. CRIL was the original investor in Cambridge Display Technology, Cambridge Positioning Systems, and a joint first investor in De Novo, with many other investments in lower profile companies. One of the other founding directors was one of our great Vice-Chancellors of the last century, John Butterfield, who has been mentioned earlier in this Discussion. John wrote the introduction to the Cambridge Phenomenon report (Segal, Quince, Wicksteed, 1985) including these prescient words 'The question must be asked: What does the University get out of the liberal policies referred to earlier? Will those who get rich put anything back?'. His answer: 'So whatever may have been all the other factors underlying scientific and industrial progress here in Cambridge, the policy of freedom of action and conscience for the individual researcher seems to be working and yielding tangible benefits to the University and to the wider community'.
A later Vice-Chancellor concurred. The University's submission to the Select Committee on Science and Technology 17 January 1999 (http://www.publications.parliament.uk/pa/cm199899/cmselect/cmsctech/17/9020101.htm) given as a preface to evidence from Sir Alec Broers and Sir Keith Peters, stated:
'THE UNIVERSITY AS A HIGH TRUST ENVIRONMENT
An ethos of trust and professional autonomy underlie the liberal policy of the University towards innovative activity by its staff.
The University is non-bureaucratic and largely self-governing. Academics have considerable autonomy, but an informal system of checks and balances ensures close attention to teaching, research, and administrative duties. In the Engineering Department, for example, which has the highest number of University spin-out enterprises, teaching performance and student assessments are closely monitored and Professors are heavily involved in undergraduate teaching. There is a strong research culture and incentives to maintain research performance. Assessment is based on output and there have been minimal bureaucratic obstacles to staff engaging in innovative activities.
The approach to intellectual property is part of this liberal ethos. Unlike almost all other universities, Cambridge University does not claim title to the intellectual property created by its employees in the course of their duties. In practice, research in the University is largely funded by the Research Councils, charities, and industry, all of which external sponsors require the University to manage the intellectual property output of their funding to the benefit of the inventors and the University. As a result the prevailing ethos is one in which the inventors are motivated to exploit their research as the University is able to work with them in a facilitating way rather than compelling them to work with a potentially heavy-handed bureaucracy. The latter either drives activities underground or stifles initiative, both of which Cambridge would find unacceptable.'
It is difficult to improve on this analysis but, maybe, Sir Alec does later in his answer to the Chairman's question, already quoted by Dr Evans, which I will repeat in full so it is not a selective quotation:
'1117. The 'Cambridge Phenomenon', as it has become known, is clearly something which is associated with a high quality academic institution. Cambridge is not the only high quality academic institution in this country. What do you think is special or unique about the Cambridge phenomenon?
(Professor Sir Alec Broers) It is a culmination of things over the years. First of all a concentration of excellence is essential. There is very much a critical mass in a lot of these things but there are many other universities which have also been very excellent in this area; the history of various companies, Pye and Philips and the Cambridge Instrument Company and others, but it has been as much as anything a critical mass and an innovative spirit which may be tied to the fact that we place very few constraints upon our academics. Academics own their own intellectual property. This is something we may modify slightly to help people develop things professionally but they have owned their own intellectual property and are relatively free to work with others. There is no doubt that it is a concentration of very bright and innovative people which is perhaps central and a long history which some people attribute back to Prince Albert in the middle of the last century who encouraged the Duke of Devonshire to put up the money to found the Cavendish Laboratory which generated the interest in industry which had not been in British universities.'
Rather a change of tune from 1999 to 2002 where we find the Vice-Chancellor saying on Radio 4, In Business, 20.30, Thursday, 19 September 2002.
'Interviewer, Peter Day: The University's Vice-Chancellor, Sir Alec Broers, is himself a Computer Scientist and ex-IBM man and he insists that the University's proposed changes are not challenging academic freedom, but creating more chances properly to exploit perhaps neglected ideas originating within the University.
Professor Broers: What we are mainly trying to do is to encourage people to be entrepreneurial and to gain benefit from the entrepeneurial output that the University has. I'm intent that the big ideas in Cambridge are turned into big companies. We have rather in the past turned big ideas into small companies.
Peter Day: Some dons see it as a land-grab, er, a breach of academic freedom.
Professor Broers: I suppose they do but I certainly don't. I see it as almost the opposite. It's my thought that the University has a right to a share because I think there are very few true individuals in the University. Most people have had to rely on others. And if they go off on their own that is rather a selfish thing to do.
Peter Day: So, despite twelve hundred companies in Cambridge now, that weren't here thirty years ago, there's room for more, you think. There's room for the exploitation of ideas that are lying buried in labs and places at the moment.
Professor Broers: Well, if you take twelve hundred companies and, whatever it is, twenty or thirty thousand jobs, it's not very big is it? We could be much bigger in my mind. When you have only got to have an international company close one plant, they do away with that number of jobs. So the Cambridge phenomenon is a sparkling thing, but it's a sparkling little thing at this stage, and I'd like to see it much bigger. I mean not in the immediate region, as I always argue, but it would be thrilling to me if the big international players were created that could go and employ a hundred thousand people up in Peterborough.
Peter Day: The Vice-Chancellor of Cambridge, Sir Alex Broers, identifying the really large question mark over the remarkable Cambridge phenomenon.'
Well, I prefer the earlier 'liberal ethos' view to the 'big international players' view and I speak with thirty-two years of experience of technology transfer in the University. My view may be seen by Council and the General Board as 'superficially attractive' and 'assertion and belief' as in paragraph 6 of the report (http://www.admin.cam.ac.uk/reporter/2001-02/weekly/5894/15.html) which states:
'The present policy is believed by some to have made a major contribution to the success of 'The Cambridge Phenomenon', to the encouragement of entrepreneurial activity, and to the University's ability to attract and retain academic staff. It allows academic staff to act independently of the University and has thereby removed from the University the overall responsibility of managing its intellectual property. This rationalization may be superficially attractive but is unprovable and a policy based on assertion and belief is hard to justify.'
Other speakers have given the research evidence from across the world proving the 'unprovable' while I can provide the 'assertion and belief' which I find easy to justify on the experience of founding and supporting successful spin-off companies. I suppose I can be damned as being amongst the 'predatory external parties' who have been preying on 'vulnerable' individuals (paragraph 6, ibid.) although it is difficult to imagine that CRIL with its University and College shareholding can be classed in that way.
Let us look at some history. The Mott report (1969) was concerned with planning issues and indeed, presciently, raised worries about housing provision in addition to advocating Science Park development. It had nothing to say about IPR, as there was no need, as there was the prevalent belief that IPR resided with the researchers. Indeed when some research undertaken by the Centre for Land Use and Built Form Studies (forerunner of the Martin Centre) in 1970 was so successful that the commissioning agency (a Regional Health Authority) asked that it be developed for practical use, the research group was instructed by the then Secretary General to set up a private company to do the development, there being no way within the University to do so. The result was Applied Research of Cambridge (ARC), a highly successful company, which after twelve years of organic growth was sold to MacDonnell Douglas. I was the original Chief Financial Officer, whose job consisted of carrying around the company cheque book to pay the bills at the end of each month!
What did the University get out of ARC? By allowing this to happen in that informal fashion, it both retained staff involved and gained experience back from them; they included Marcial Echenique, Nick Bullock, David Crowther, and Paul Ritchens, all of whom are still heavily involved with University teaching and research. Indeed the Cambridge Futures project, dear to the heart of our Vice-Chancellor, would not have succeeded without the invaluable input, both financial and technical, of Marcial Echenique and Partners Ltd, a spin-off of ARC.
By the 1980s the need for more venture capital for early-stage technology transfer was apparent and so in 1987 Cambridge Research and Innovation was created and has, I believe, been a model for constructive co-operation between capital and the University; this was particularly evident in early days when CRIL was managed by Miranda Weston-Smith. There was an excellent relationship between CRIL and the Wolfson unit headed first by Stephen Bragg and following him Richard Jennings. Historians of Cambridge may care to note that Cambridge is at its most successful in many activities when scions and relatives of the Darwin dynasty are involved.
What did the University gain? Major shareholdings in world-leading companies such as Cambridge Display Technology (and its spin-off Plastic Logic) and de Novo plus the continuing contribution to the University of such world-class academics as the Cavendish Professor.
So much for the first aphorism. What of the rather stilted second one? 'If, despite the evidence, you are determined to fix it, enlist an experienced fixer.' Let us allow the Research Services Division to prove itself to the University on the routine administrative matters of running research contracts efficiently before we entrust it with our IPR. There is anecdotal evidence from major fund-holders that the Research Services Division has some way to go to provide that proof.
Mr Deputy Vice-Chancellor, nothing in the assertions in this Report convinces me that the proposed changes would be helpful for technology transfer or for University finance. So, Fractum non sit, ergo noli id reficere.
Dr M. MACLEOD (read by Dr D. SECHER):
Mr Deputy Vice-Chancellor, it has been acknowledged that this Report is not explicit, or sufficiently clear, about a number of points, and that those points do need to be clarified. I therefore wish to address my remarks to the main proposals in the Report.
I am grateful to Dr Anderson, whose opinions I know are different from my own, for nevertheless sending me two papers on the subject of University Technology Transfer. They report on academic studies of the effectiveness of universities in transferring the technologies or inventions made by their staff (or students) successfully into exploitation in the outside world, and are based on detailed investigation of a large number of universities. In my view the findings of these studies support the strategy proposed in the Report.
The studies make clear that it is necessary to have an effective and sufficiently well-staffed Technology Transfer Office. Although that has not been the case in Cambridge until recently, I believe that that is what we now have. Also, and unsurprisingly, since successful exploitation of inventions always requires effort and commitment from the inventor herself or himself, the studies find that a generous reward structure is a significant positive factor. The reward structure already in place in Cambridge, and which is to be retained, appears from the studies to be generous compared to that at most universities.
After the clarifications which I expect to be made, I believe that the proposals in this Report do not represent any threat to academics' freedom to disclose results in scholarly ways. However it is, in parallel, right and necessary for the University to ensure that more of its work is successfully exploited commercially. In Cambridge in the past, commercial exploitation has depended haphazardly on extremely motivated academics to do a great deal of work themselves, and the benefit to the University has been correspondingly haphazard. The proposals in this Report will allow the University to successfully see through to exploitation the work of an increased number of academic inventors, even when those academics are not able to contribute such huge amounts of personal effort. They represent, in my view, a proper balance between personal gain for the academic inventor concerned, and gain to the University which, after all, provides the resources and environment which make each invention possible.
Dr D. SECHER:
Mr Deputy Vice-Chancellor, I have been a member of the Regent House continuously since 1974, by virtue of an academic appointment in Gonville and Caius College. Half my post-graduate career has been spent as an academic researcher in the MRC laboratory in Cambridge that has just picked up its thirteenth Nobel Prize. I was awarded tenure, developed my own research group, and published more than 60 peer-reviewed articles including a cover story in Nature. More recently I have worked in the biotechnology and pharmaceutical industries, as well as founding and directing a national clinical trials organization for testing new cancer treatments. I have been directly responsible for three different pharmaceutical products on the market today. Why is my background relevant to the Discussion today? As an academic in Cambridge in 1980, I made an invention of serious commercial potential. I did not work for the University then, but for the MRC and this meant that I was not entitled to any share of revenues generated (all of which was due to the Treasury). More seriously the MRC, advised by the National Research Development Corporation decided not to patent my invention. I offered to patent it myself, but the offer was declined. I secretly filed a patent in my own name and a year later I assigned this to a grateful MRC which had by then set up Celltech Ltd who have made many millions from the patent. You can see that no one could be more in tune with the notion that the inventor should feel free to determine the fate of his/her invention and there is nothing in the proposal that is contrary to that notion.
I would not have come back to Cambridge three years ago, had I not thought that there was the potential and will in the University to support the building of a new, different, and effective Research Services Division. Nothing has changed my view (not even the recent personal attacks in the context of this debate!). Anyone visiting our new office in Mill Lane and meeting the staff would see that we have built an organization that is very different from the old administration. RSD now manages an annual research income of more than £140m, negotiates 250 contracts for academic researchers, advises on around 150 inventions, and has a technology transfer turnover of more than £3m. Over the past five years the University has made £4.7m from licensing its IPR. Of this, £2m has been paid to inventors, £1.8m to Departments, and £0.8m to the Chest. Over the same period MIT has made more than ten times as much, most of it recycled through Departments and centrally to fund research, including graduate Studentships and to endow Professorships. This proposal is only a small part of what is needed to help Cambridge improve the return on its research, but reform of IP policy was delayed until progress had been made in developing a service, e.g. from 3.5 to 15 technology transfer staff. There is also external recognition that we are moving in the right direction. In the past few months alone we have brought in nearly £1m of new (DTI and CMI) money to support work in the Division.
My colleagues and I have read and listened to the points made over the Summer and last week - and I am here to listen today. The Council statement at the start of this Discussion has already offered some points of clarification and where necessary the Research Services Division will make suggestions for clarification of any further points of ambiguity to the Council for its response. I shall not list those points here.
I do want to repeat that this proposal is not about grabbing a share of book royalties or about controlling the freedom of academics to publish or disseminate the results of their research. Nor is it about playing political games (although a recent submission to the newsgroup about IP policy concludes: 'It is politically vital that some of this term's non placets succeed').
While we argue about how a particular word could be misinterpreted by a future uncontrolled and tyrannical administration, our competitors in London are thinking strategically about their global position - and are taking action.
The IP proposal is about working in partnership - academics and administrators; it is about building teams to ensure that the maximum value of University research is passed to the wider society we live in; it is about creating more value when the inventor decides that commercial value is there to be created; and it is about sharing any profits from such commercialization in a transparent and fair way among all those involved in creating the value. It is about whether we want Cambridge to become as famous for its excellence in knowledge transfer as it is for its research and teaching.
You may question whether the University administration is up to it and this is a critical element. The University must provide a first-class Research Services Division, if it is to be a world leader in knowledge transfer. The University will have to take IP ownership seriously, and for that we shall need resources - including the trust and goodwill of researchers. For the vast majority of the commercially valuable IP generated in the University (i.e. all that supported by Research Council, Charity, industry, or other 'external' funding), we have no choice but to provide that service. The University has to own - and be accountable for - any IP generated and we have accepted this responsibility (see current policy as described in the Report published in January 2001 Reporter, approved 31 March 2001, and in operation for the past 18 months.) Our administration has to be 'up to the task' and, if it is not, we must make it. That is why we have put in place service standards on the Web, commissioned a user survey, introduced appraisals and job descriptions, set up the Research Policy Committee to oversee RSD, and taken many other measures.
Finally, I want to say a few words in defence of the dedicated and hard-working staff of the Division who are not eligible to speak here on their own behalf, but who have been shamelessly and incorrectly attacked without evidence or foundation. I shall give one example only and not refer to any individual by name. I quote from an e-mail: 'I now have two separate accounts of X [a member of RSD] obtaining intellectual property by extortion.' 'I will of course be digging as much dirt on this as I can. It is likely to start coming out next week at the Discussion.' When I investigated this accusation of extortion I received the following response from a senior academic: 'Of all the people in the University I have worked with over the years, X has always been the fairest and given a balanced view over such issues. To accuse X of obtaining IPR by extortion is outrageous'. This referee was chosen from among the list of members of the so-called 'Campaign for Cambridge Freedoms', although he was not aware of this unauthorized use of his name.
I have only spoken in Discussions once before. That was to refute the claim that morale was low in my division. I got the impression that the critics were disappointed, rather than heartened by the news. There is an insidious threat to the survival of this great University, but it is not the threat of an uncaring administration depriving the academic community of its freedom.
I have found the extreme polarization of staff in Cambridge and mistrust of the administration by many academics to be the most disappointing experience in joining the University. I know this is not the case in Oxford or in many other universities and it was not the case in any other organization I have worked.
That senior and professional administrators cannot play a part in these proceedings may be a reflection of that. There is great pride in being a self-governing academic community - but I believe there is also pride in being a world-class university. In today's world, the University will need an able administration, sustainable policies and secure governance, to compete for the resources and opportunities that are so vital for international excellence. By continuing to attack individuals within the administration, a small minority could make their claims self-fulfilling, when the ablest administrators move elsewhere.
Dr S. J. COWLEY:
Deputy Vice Chancellor, I am not sure I heard everything that David Secher said. I think he said that the Senior Administrators could not take part today or were unable to take part today. As I understand it anybody can take part today with the permission of the Deputy Vice-Chancellor, i.e. administrative staff could take part. I was also interested to learn that the Research Services Division (RSD) set up the Research Policy Committee (RPC).
In his report on CAPSA Professor Shattock stated that improving the internal climate of the University must be a major objective and will not be achieved overnight. One assumes that the central bodies concur with this sentiment (especially in light of what David Secher has just said). Yet they publish a Report which was patently a disaster, (at least in terms of public relations) waiting to happen. Why have the central bodies not learnt lessons from CAPSA? Unfortunately when the Board of Scrutiny visited RSD and asked for a preliminary discussion of this Report we did not get very far.
Why is it so important that the issue of IPR is brought before the Regent House now? What is the driving force behind this Report? Why is it, as Professor Badger stated last week, that 'some change in practice is required: the status quo is not an option'?
• The Report states that the 'aim is to maintain and encourage a culture of entrepreneurship, whilst providing support for all inventors, including those less able or inclined to participate actively in the application of their knowledge', but that could be done without claiming ownership of IPR.
• The Report also claims that 'the University needs a supportive infrastructure to ensure that where opportunities for application of new knowledge arise, the benefits to society are not lost', but that too could be done without claiming ownership of IPR.
• Further, it is suggested that 'the complexities created by this mixed ownership cause confusion internally for employees and externally for sponsors and potential investors in University-derived technologies', but surely in an educational establishment difficult ideas, even legal ones, can be clarified without the sledgehammer of claiming ownership of IPR.
A Research Services Division which was renowned throughout the University for its efficiency and effectiveness could achieve these declared aims and overcome the legal difficulties.
The statement that 'there is an inconsistency in that the outputs from separate streams of government money are treated differently and, by extension, different classes of employees employed on these separate streams have enjoyed different rights' is closer to the heart of the matter. The 'different rights' are rights to make money, and this Report, if not the debate, is about money.
Last week Professor Badger referred to the University's 'duty to exercise due diligence in the proper expenditure and exploitation of … public funds', and expressed the view that the 'unfettered exploitation for private gain of these public funds is clearly unacceptable'. I agree.
Professor Minson stated that natural justice requires that those who wish to exploit their research commercially 'share the rewards with [their] colleagues'. I agree. However, Professor Minson also suggested that 'financial gain is not the primary reason for the proposed new policy on IPR'. I disagree. This Report is about money pure and simple, and possibly about undeclared aims.
With the exception of the jealousy argument (i.e. why should the University own my IP supported by external funds, when you own your IP possibly supported by HEFCE funds), the declared aims of the Report could be achieved without the University owning the IPR. As I understand it, there is no legal reason why the University needs to own a patent to share in the commercial benefit of an invention. That aim could be achieved if the inventor was bound by Statutes and Ordinances to share the benefits in a previously agreed way.
As regards possible undeclared aims, as I understand it, only if the University wished either to exploit an invention when the inventor does not, or (as has been suggested earlier) if the University wished to raise money through the bulk sale of IPR, would it need to own the IPR.
Of course, last week Professor Minson stated that, in line with para. 1 of the Report, as he understood it, 'the proposed policy is consistent with the control of the inventor'. However, that sentiment is not in the Statement of Policy at the end of the Report. Is that just bad drafting?
If the University was never ever going to raise money through the bulk sale of IPR why did David Secher, as reported in Varsity, refuse to definitively rule out the possibility of the University selling some of its IPR to a commercial venture? True, he is also quoted as saying that 'the academic inventor must be in control. It can't work any other way', but an invention can be exploited without 'the willing support and co-operation of inventors', otherwise you would never have law suits for the infringement of patent rights.
It seems to me that we have another example of a Report, like that on Governance, that includes reassuring noises in the commentary but tells a different story when it comes to the legal statements: the Statement of Policy here and the proposed Statutes in the case of Governance.
I believe Professor Morrill when he says that the Report is 'the consequence of sustained discussion conducted with integrity and an overriding sense of equity to the whole and to each' (the quote is from the press pack handed out by the Press Office last week). Nevertheless, the fact remains that the Report, and in particular the Statement of Policy, is badly drafted. Why? Was there inadequate administrative support? I think not: RSD has sixty staff, of which five are listed as solicitors. Did the solicitors not read the Report? Did they not advise on the Statement of Policy? If not, why not? If they did, Regent House beware.
Dr N. DODGSON (read by Dr F. KING):
Mr Deputy Vice-Chancellor, I apologize that I cannot be here in person; I am out of town this afternoon. I wish to suggest a modification to the proposal that is before us.
One problem with the proposed policy is that it leaves the Colleges out in the cold. Historically, grateful and wealthy alumni have donated to both their University and their College. One intention of this proposal is to short-circuit the cash flow so that, rather than revenue flowing to the inventor and then, hopefully, some of it being donated to the University, the University directly receives some proportion of the revenue. For intellectual property generated under a research grant, this seems appropriate. The issue is more murky for intellectual property generated by an individual who is a member of both the University and a College. A fiscal argument runs something like this: my College pays roughly one seventh of my total salary. Should not my College therefore receive a proportionate amount of the University and Department share of revenue from my intellectual property? An alternative argument, which I find morally more convincing, is that, as the Vice-Chancellor reminded us in his recent annual address, benefactions are very important to both the University and the Colleges. This proposal has the potential to reduce one source of benefactions, because an inventor will see that the University has already received its share of the revenue. It would be invidious if this proposal thereby caused a College to miss out on a benefaction that it would have otherwise received. It would be a fine gesture if the proposal were modified to include a proportion of the revenue going to the inventor's College, where appropriate.
Mr P. GOSLING:
Deputy Vice-Chancellor, I am a Computer Officer in the Department of Engineering, and thus certainly not a 'true individual'. I have a number of concerns relating to the current proposal.
It seems to me unwise to sign away rights on the understanding that you won't be taken advantage of. And yet many of the soothing statements made by the RSD or PPO in Web pages that mutate day by day defending the proposal, suggest that we should do just that.
What is proposed is a situation in which absolute control (through ownership) of exploitation will reside with RSD, and originators will have to hope that the current spin (that exploitation will not happen against the wishes of the originator) is still remembered once the new system is in place. There is certainly nothing in the way of a guarantee of this, and even were each other part of the proposal to pass, this must be something that needs formalizing.
It also appears that we are proposing an absolute monopoly over exploitation of IPR; it also seems that this is happening as RSD attempt to change the ground rules to allow themselves to satisfy the need for their revenue generation to exceed their costs. Quite apart from the suspicion that this will not achieve the desired aim, it also calls into question how RSD will measure their revenue generation. Two matters should concern us here - the claiming as theirs of revenue which would be or is already the University's without their help; and the failure to take note of revenue lost as a result of a rather rigid approach to IPR negotiations.
There are other areas of support activity within the University where the central provider does not have a monopoly - Departments may choose the extent to which they make use of the central provider. This seems to be a model that has benefitted both the Departments and the central provider, in the long term.
The final concern that I will raise here relates to the matter of publication of research. The proposal under discussion is careful to emphasize that copyright in normal means of academic publication will remain with the originator (for just long enough for it to be signed over to a journal publisher, sadly). It does not, however, make clear what constraints the University, as owner of the IPR relating to an invention, might wish to place on members of staff, to prevent them destroying the value of this IPR by premature publication. This is a completely separate issue from the question of ownership of the published words, and should be of great concern.
Finally, Dr Secher reports a feeling of confrontation between academics and the administration. I would suggest that a simple way of improving this situation would be to place more administrative staff in Departments where they can work closely with academics; not to create ever larger and more isolated central offices, perhaps at the cost of fewer departmental staff.
Professor Dame Marilyn STRATHERN (read by Mrs S. BOWRING):
Mr Deputy Vice-Chancellor, one of the very few patents ever to have been withdrawn after successful filing concerned a human T-cell line infected with a virus seemingly conferring resistance to leukaemia. Assigned to the US Department of Health and Human Services, the act of patenting led to widespread protest. The cell-line was derived from the blood of someone from Papua New Guinea, and the US Government was accused among other things of 'patenting a man', and by extension his community: in the emotional language of one NGO, the patent made no provision for the people to receive compensation 'for becoming the property of the US Government'. Among the inventors cited was the medical anthropologist who had sent the blood to a US lab; she subsequently claimed that she had put her name there as a way of protecting the interests of the indigenous people from whom the original samples came, hoping there might be some form of return for their participation in the research. Since she had not told anyone at the time that this was her intention - least of all the PNG government - the scepticism with which her claim was greeted may have been justified. At any rate, international furore led to the patent being withdrawn (and to the anthropologist leaving the country). The case might have turned out differently if she had been required at the outset to declare her interest to the Government-funded medical institute at which she worked, in other words, had there been a presumption that the institute owned the anthropologist's intellectual outputs. Aside from that, the case raises the familiar question of recognizing that any process of invention might involve non-propertizable claims with which those named in a patent may or may not be obliged to deal.
Property ownership is an emotive concept, and the idea that something is being taken away one thinks is one's own even more so. When the University of Cambridge says that it wishes to assert ownership of the intellectual products of its employees it looks as though a corporation is taking away from the individual what naturally belongs to him or her, and the individual creativity of the scientist seems under assault. But if I were to ask whether a university or an individual were more likely to secure protection in relation to commercial interests, I would answer the university. If I were ask whether a university or an individual were more likely to see that benefits flowed back to the community at large, I would probably answer the university. Yet if I were to ask whether a university or an individual were the natural owner, I would hesitate. Because the truth is that neither are, and natural ownership is a fiction.
Two consequences:
(1) Cambridge University's claim to ownership is, among many other things, an administrative facility - the identification of a legal person who can take action. The issue for debate is how this administrative facility can best be put to use - how useful it can be made to be.
(2) None of us produces ideas unaided. There are many ways of acknowledging multiple authorship, team effort, the role that institutional support plays. If that is what we are now being to asked to recognize, then I would vote for the University. But however effective the University could be as a 'private owner' in respect of outside bodies, is it also prepared to act as a 'public owner' in relation to its internal constituency?
The real question becomes how adequate the University is as an institution to ensure that the mechanisms by which it sets up this administrative facility will not unduly interfere with or meddle in the sense of freedom with which individuals pursue their projects. Or for that matter prevent them from feeling rewarded. There is a tension here. Is our University up to the complex social task?
The documents it has produced make me hesitate again. The Joint Report (Reporter, 24 July 2002) opens with a first sentence that is misleading (to ensure that 'all' intellectual property is held by the University), because there then has to be a qualification about copyright. In other words, the patent is taken as the paradigm of a IPR instrument - whereas what concerns many academics in their everyday lives would be the workings of copyright in relation to publications, lectures, and so forth. It is a pity that the Report makes patents the unmarked category (the generic intellectual property), because the reality is that the University's copyright policy - following the Cornish report - will continue to encourage individual ownership and creativity. But that is a small point.
Far more importantly, the University needs to be the place to carry forward ongoing debate about what is or is not appropriately patentable. New objects are constantly being brought into existence, above all in a research university, and there are some difficult questions about the appropriateness of disseminating new forms of knowledge through property ownership régimes. The completion of the genome project and the stance which the Sanger Institute took in the name of immediate public dissemination is a case in point. The Nuffield Council (on Bioethics) has recently issued a paper on 'The Ethics of Patenting DNA' which both acknowledges the benefits of the patent system and points to its limits, particularly where the criteria become over-stretched and where a proliferation of patents may work against and not for the dissemination of useful knowledge.
Our University would be absurd to turn its back on patents. Rather, it has the opportunity to take the lead in tackling patents in research contexts on several fronts:
1. Protecting the diverse interests of individuals, Departments, research teams, and the community of scholars, that is, recognizing there are multiple interests here.
2. Encouraging debate over the appropriateness of this property rights instrument, and helping to define its boundaries in the context of arguments for open access régimes.
3. Acknowledging the accountability which an assertion of ownership will bring, since by establishing itself as an interested party the University inevitably becomes a moral player in the field - it cannot avoid ethical questions.
Is the will for this in place?
Dr D. R. DE LACEY:
Mr Deputy Vice-Chancellor, the Report begins: '1. In this Report the Council and General Board recommend that the University extends its existing policy ... The aim is to maintain and encourage a culture of entrepreneurship ...' May I ask the Council or the General Board to explain just how this fits with our Mission Statement (http://www.admin.cam.ac.uk/univ/mission.html) - always assuming of course that at some stage the Regent House gets to adopt this Mission Statement? Are we to add an entrepreneurial spirit to our core values?
Section 3 promises consultation: 'the General Board noted their intention ... to consult the Regent House about substantive matters of policy ...'. Is this that consultation? If so may I be permitted to remark that the emotive language used throughout the Report is prejudicial. It abounds with the terminology of invention, exploitation of technology, and the entrepreneurial spirit. This will surely lead all members of my Faculties in the School of Arts and Humanities (who often do work, incidentally, largely in isolation) to assume that this simply cannot apply to us. Yet, as Dr Anderson showed so graphically last week, it can and it will. There has been some significant comment, here and in the press, on the Cambridge Phenomenon and its relationship to our current IPR policy. Section 6 addresses this issue. However, there is nothing in Section 6 which clearly implies the necessity, or even the desirability, of a change in our policy: it is all about advice and assistance in marketing ideas, not about the need to take possession. The emotive language of that section seems designed, though, to obfuscate rather than to elucidate the logic behind the policy being proposed.
Poverty in communication skills and in clear thinking is evident throughout the Report. Would Council or the Board explain whose responsibility this is?
In the Report's Annex (p. 1271) for instance, we are told that for sums over £100,000 each party (the inventor, the Faculty or Department, and the University; itself a somewhat egregious concept of the interested parties - where do the Colleges fit in?) receives precisely 33.3%. Not one third, but 33.3%. Can those who drafted this Report not do simple arithmetic either? Can they not see that this leaves at least £100 unaccounted for? Into whose pocket does this disappear?
The use of passives in a document such as this is bound to create ambiguity. '... due care must be exercised', we are informed on p. 1270. Exercised by whom? Others have commented on factors which the Report simply fails to address, such as GPL software and Web publication. Council's reassurances, as read to us at the start of this Discussion last week, fail to satisfy, since the wording of the Report appears to point in a different direction. If differing interpretations are indeed possible, there is something sadly lacking in the draftsmanship. Once more we need to ask Council and the General Board to go away and think again.
Report of the General Board, dated 10 July 2002, on the establishment of an office of Director of Medical Education in the Faculty of Clinical Medicine (Reporter, 2001-02, p. 1271).
No comments were made on this Report.
Report of the General Board, dated 10 July 2002, on the establishment of a Professorship of Financial Policy (Reporter, 2001-02, p. 1272).
No comments were made on this Report.
Report of the General Board, dated 10 July 2002, on the establishment of a Visiting Professorship of Marketing, Strategy, and Innovation in the Judge Institute of Management Studies (Reporter, 2001-02, p. 1273).
Dr G. R. EVANS:
Mr. Deputy Vice-Chancellor, I promise readers of this speech in print that it will be well worth their while to persevere beyond this first bit about the statutes to the concluding passage.
There is a history to Visiting Professorships. on 12 October 1966, statute D, XIII was amended to include one or two of the breed. the intention was to provide short-term cover until a proper appointment to a professorship of theoretical physics could be made, on terms which would waive the residence requirement for the person prepared to help out for the time being. 'while the general board feel that it might be objectionable on practical as well as statutory grounds to allow the holder of a permanent professorship to hold simultaneously another office which required him to be away from Cambridge for a substantial part of each year, they see no objection to the establishment of a special Professorship to be held for a short period by a named person' (Reporter, 1966, pp. 289-290).
By 1992 there had been the familiar creeping modification of principle and a BBV Foundation Visiting Professor was allowed to be elected 'from time to time' by the General Board under the authority of Statute D, XIV, 1(d) (Reporter, 4 March, 1992, pp. 453-4 and p. 639).
When Professor Edwards' successful challenge to the awarding of the title Research Professor led at last to a Report in 2001 to ensure that professorial titles were not being scattered at will by the General Board, they tucked in Honorary Professorships. Honorary Professorships were created in 1987. These do not appear in Statute K, 3(o) alongside Visiting Professorships. This represents a failure to make consequential amendment to the Statute but it leaves us wide open to Professorial Proliferation, in which untidy piecemeal decision-making is going to lead to gross unfairness and inequity of treatment.
I rather suspect the University faces a long and expensive period while it takes legal advice about the employment status of College officers who simultaneously hold one of the temporary and affiliated posts as lecturers in the University and will be excluded from these Visiting and Honorary Professorships.
The University has already obtained a legal opinion that 'the epithet Honorary Professor is regarded differently within the University'; and that the man on the Clapham omnibus could not possibly confuse someone thus calling himself 'Professor' with someone else calling himself 'Professor' who holds a genuine chair in the University. When Faculty pigeon-holes begin to fill up with letters to College officers and passing or visiting persons with vague Faculty links saying 'Professor so and so' I do not think UTO's-in-waiting are going to like it.
And what have we here? This Visiting Professor? The Judge Institute of Management (it has quietly deleted the 'Studies') is 'building a strong reputation' (p. 1273). It needs to, with that 4 in the RAE and a mere 'satisfactory' announced on its website for teaching. Whizzing in a Visiting Professor or two will no doubt help no end, when the General Board in the person of Professor Grant (2 October, Minute 7 (c)) considers 'a full-scale review' of our RAE '4' institutions.
The Judge is particularly keen to improve its profile in the areas of 'marketing, strategy, and innovation', it says. The Visiting Professor will be expected to offer 'guidance and intellectual leadership' in these areas.
I would like to draw attention to what do seem to be fairly fundamental questions about what the Judge Institute understands by these notions, before this goes ahead. As Chief Executive Officer in Residence - and surely a candidate for such a Visiting Professorship when once it is approved - Kevin Roberts of Saatchi and Saatchi gave an address to the Judge alumni last year in which he sought to psych them up to great things.
'During his thirty year career, Kevin Roberts has gained a reputation for a passionate management style and for provocative, imaginative, and unconventional thinking. He started his career with Mary Quant in London, later moving to Gillette, Procter and Gamble, PepsiCo, and Lion Breweries in New Zealand and Australia. He joined Saatchi and Saatchi in 1997 and was appointed CEO in Residence at the Judge Institute of Management in October 2001'. He is presumably of the same breeding as other figures loudly proclaimed as distinguished, such as the 'Arthur Andersen Distinguished Visitor'.
Last year's speech by Kevin can be read on the Judge Institute website, under the heading: Kevin Roberts - Thoughts from the Edge. I abbreviate very slightly.
'I'm honoured to have been named as the new CEO in Residence at the Judge Institute … Here are some initial thoughts about an institution that I believe you can help make more than a great brand.
The goal of the Judge Institute of Management should not be to become a Lovemark. What the Judge Institute has to win is not just acclaim. It has to gain a permanent special place in the hearts of students, staff, and our extended external family throughout the world. The people who will transport the school into the heart of the culture.
Brands, even great brands, are running out of steam. At a time when people everywhere are seeking togetherness and connections, brands are not gaining emotional traction. The makers and marketers of brands are still fixated on transactions. This is not good enough. It wasn't several years ago; it certainly isn't post-September 11. Respect, the sought-after-status of brands, is indispensable, but not sufficient. For the modern brand, love is essential. It's not either/or … it's and/and. Not Respect or Love. Respect and Love.
What does this mean for the Judge Institute? The school is a very new part of a very old institution. Cambridge University has so many ingredients of a Lovemark - great stories, wonderful traditions, a sense of mystery - but doesn't make the most of them. From what I have seen, the Judge Institute has a spirit that is livelier and a focus that is much clearer than many other parts of the University. This means we can draw on the respect that Cambridge engenders; what we must add is the passion.
The Judge Institute is strongly positioned to leverage off Cambridge's centuries old reputation in the absolutely core area of ideas. When I spoke to Judge alumni I said that if you wanted to capture the essence of Cambridge (the University of Newton, Darwin, Rutherford, Crick and Watson) in one word that one word (or that hyphenated word) would be 'world-changing'. This is the edge on which the Judge Institute is positioned. New ideas and new practices from a place that has changed the world …
Another great advantage for the Judge Institute is that we are of the world. We look out, not in. We're engaged. We won't have to proclaim our virtues or achievements to the world - we'll show the world. We'll take the values of the Judge Institute, of our community, into companies and organizations around the globe. Our graduates are the people who will Lovemark our school.
Have a look at the speech I gave to Judge alumni earlier this year for a fuller explanation about Lovemarks and about Lovemarking Cambridge University. The speech is at http:www.saatchikevin.com/talkingit/Cambridge.html. Check it out. Check the Lovemarker out. Run the Judge through it. Run Harvard, Northwestern, Columbia, LBS, Insead, and Imede through it. See how we do. Any ideas on how we can do better? Send them to me through the Newsletter (press-publicity@jims.cam.ac.uk) or better still just run with 'em!!'
I did send him an idea. I invited him to come and tell us about this in the Governance Discussion. But he was awfully busy. At the Edge. So I am reading his thoughts to you for him. I am sure we all wish him and his like well as one of these Visiting Professors.
Professor S. J. N. DAWSON (read by Dr J. ROBERTS):
Mr Deputy Vice-Chancellor, the fields of strategy, marketing, and innovation are important growth areas for the Judge Institute of Management. Whereas development of these fields has a stronger and longer history in some other parts of the world, notably the USA, than in the UK, the Judge Institute recognizes the importance of providing enhanced expertise and leadership in these critical areas of business thought and practice and welcomes this proposal to establish the Visiting Professorship. The establishment of a Visiting Professorship in these fields will enable the Judge Institute to attract distinguished academic leaders from overseas institutions to work in the Institute for visiting appointments. The appointment of a Visiting Professorship will enable further development of existing research into technology-based entrepreneurship, the invention, development, and commercialization of products, the translation of inventions and innovations into products and services in the marketplace, the development of marketing strategies in traditional firms to exploit the Internet, the investigation of 'network effects' and 'path dependence' as drivers of high-tech products, and the relevance and strategic impact of industry boundaries immediately following a technological discontinuity.
The Visiting Professorship will in time become as recognized in the field of management as other renowned appointments in the University, including the John Wilfred Linnett Visiting Professor of Chemistry and the Pitt Professor of American History and Institutions.
The establishment of this Visiting Professorship is a very important platform for building important areas of work within the Judge Institute. All those involved welcome the generous endowment of Mr Gianni Montezemolo to establish this Visiting Professorship, which will enrich both teaching and research.
Report of the General Board, dated 10 July 2002, on the School of Clinical Medicine (Reporter, 2001-02, p. 1274).
No comments were made on this Report.
The Seventh Report, dated 18 July 2002, of the Board of Scrutiny (Reporter, 2001-02, p. 1306) was held over for discussion until 29 October 2002.
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Cambridge University Reporter, 30 October 2002
Copyright © 2002 The Chancellor, Masters and Scholars
of the University of Cambridge.