Tuesday, 7 June 2005. A Discussion was held in the Council Room of the following Reports:
Report of the General Board, dated 11 May 2005, on the establishment of a Professorship of Education (p. 668).
No remarks were made on this Report.
Report of the General Board, dated 11 May 2005, on the establishment of a Professorship of Service and Support Engineering (p. 668).
No remarks were made on this Report.
Report of the Council, dated 23 May 2005, on the financial position of the Chest, recommending allocations for 2005-06 (p. 699).
Professor A. C. MINSON:
Madam deputy Vice-Chancellor, this year, for the first time, the proposed Chest Allocations for the coming year, and future projections of income and expenditure, are based on the five-year plans submitted by all institutions within the University. The plans were submitted in December last year in response to the planning enquiry and they are in the process of being scrutinized by the relevant bodies, including the Colleges. The plans are not written in stone but will be updated annually in response to comment and changing circumstances. A great deal of effort has been put into the preparation of the plans and the Report congratulates all concerned. Some aspects of the Report reflect this change of approach. In past Allocations Reports the non-Chest element of the University's finances has been included in projections but predicted expenditure has always been shown as balanced by income. This year, the non-Chest element records the predictions of income and expenditure from Institution plans and this illustrates the importance of locally held funds, including Trust funds, trading accounts and donations, as well as research grants and contracts, in our financial planning. There is, of course, considerable uncertainty in the non-Chest projections because success in raising research grants and donations cannot be guaranteed. Nevertheless, the Chest and non-Chest elements of our income are increasingly inter-dependent and this is an important change of approach.
Turning specifically to the Chest, last year the Council reported that the predicted deficit to the Chest in 2004-05 was £12m and that continued deficits were forecast in subsequent years. This gloomy picture arose largely as a result of the increased employer contributions to the CPS (Contributory Pension Scheme), but other cost increases, notably in energy costs, were also making an impact. Last year's Report noted, however, that additional income streams were expected in future years but were difficult to quantify with any accuracy. The position this year, though far from rosy, is more favourable. The deficit this year is expected to be about £10m and the Chest should be close to balance by 2006-07. Modest surpluses are predicted thereafter. The improved position reflects considerable effort by all institutions within the University to contain costs, and a reasonable level of certainty about new streams of income, notably student fees and transitional funds in advance of the full economic costing of research. Against this background of increased income we should note that we are also facing increases in costs. The changes in HEFCE formula funding results in a 10% increase in the College Fee transfer, there is a further increase in the employer's contribution to the CPS and implementation of the new pay and grading structure will increase the salary bill. The Report notes that there are significant uncertainties looking forward. Pensions and the review of HEFCE funding of teaching are highlighted, but accurate costing and realistic pricing of research, while achieving volume growth, is equally important and will be difficult. In the face of the uncertainties there is every reason to continue to control costs and to continue to make more efficient use of our resources.
Finally, we must recognize that even the most optimistic projections do not predict operating surpluses sufficient to allow the level of investment necessary to maintain our world position. We must replace facilities and equipment, we must reward our staff more appropriately, and we must offer improved support if we are to attract the best postgraduate students. In the long term we should be looking for operating surpluses equivalent to more than 5% of our turnover, not one or two percent. In the shorter term, the 800th Campaign offers an opportunity. We must use the Campaign to provide better support for our key activities - teaching, research, and the stewardship of our great collections. The growth of the University has not been matched by growth in the endowment. The 800th Campaign gives us an opportunity to reverse this trend.
Professor R. J. ANDERSON:
Deputy Vice-Chancellor, I did not sign the Allocations Report, and careful readers of the Reporter will recall that I didn't sign last year's either. I also recently resigned from the Finance Committee. I believe that the time has come to speak out about such matters.
I was elected to the Council from January 2003 and was immediately asked to join the Finance Committee. This seemed at first sight to make some sense. Although not a specialist in finance, I worked in banking in the mid-1980s and have also run a couple of modestly successful businesses.
I understand that in years gone by, the University's Finance Committee amd its predecessor, the Financial Board, were where the spending barons and the bean-counters fought over money. However, the situation I discovered was that while the Finance Committee had apparent responsibility for the University's budget and assets, the real power had migrated to the Planning and Resources Committee. This seemed to be the tail-end of a long power struggle, which saw the creation of the Unified Administrative Service and the early retirement of the Treasurer.
Since then, the remaining powers of the Finance Committee have been stripped out one by one. The Building Committee is no longer a sub-committee of the Finance Committee, but of PRC. The Allocations Report no longer comes from the Finance Committee, but whizzes past it for rubberstamping en route from PRC to the Council. And watch out for an announcement shortly on investments.
This year's Allocations Report, like the last several years' Reports, predicts significant trading losses, but promises to do better in the future. It reminds me of the prayer of the youthful St Augustine: 'Lord, make me virtuous, but not yet.'
When the Lambert Commission was investigating the University, Richard Lambert came and asked for my views on the constitution of the University. I suggested that he think of us as being rather like a law firm; the teaching officers were the partners, and the Registrary was the partnership secretary. Although he might earn more than a normal Professor, we owned the firm and his job was basically to keep the photocopiers fed. 'But surely you don't mean,' Richard Lambert asked in horror, 'that you could just wind up the University and share out the assets?' I answered that we might be able to in theory but obviously wouldn't in practice, any more than a successful law firm would.
Yet we are as a matter of fact consuming our capital. We may kid ourselves that this is working capital rather than core endowment, but with each passing year we are burning millions of pounds and foregoing the use of, and the interest on, that money for evermore.
I have tried in various ways to encourage economy. I've argued that we cut catering subsidies: why should we be spending money opening a sandwich outlet on the New Museums Site which is already served by a sandwich van? Why, for that matter, do we subsidize sandwich catering at all, in a town with multiple competing sandwich shops? Should the University burn its capital in an attempt to drive the sandwich-van lady out of business?
I've also argued in favour of sacking the twenty-odd people the Research Services Division hired to do technology transfer, in anticipation of the 2002 IP policy becoming law. Instead, we are to be presented, as the next item of business, with yet another variant of the IP policy, in the hope that we'll find something for these people to do.
Needless to say, not one of these attempts to inject some sanity into our budget process has come to anything. We now have before us a budget that seems to predict about 1% per annum growth in College spending, 2% for academic Departments, and 3% for the central administration. It is hard to tell for sure, as central expenditures are hidden in all sorts of places. But the big picture I take away from two and a half years on the Finance Committee is of central expenditure spiralling out of control while our core mission suffers.
Deputy Vice-Chancellor, the mechanisms for setting our budget are broken. Rather than having the spending barons and the bean-counters fighting it out in one committee, we have the former living it up in Planning and Resources, and the latter wringing their hands ineffectually in Finance. Every attempt by the Finance Committee to restrain expenditure appears to be seen as an impertinence, and its power is steadily eroded. By now, the discussions meander; all sense of urgency, and of real influence, is gone.
I understand that a group has now been set up under Lord Wilson and Lord Simon to look at governance issues once more. I welcome this. I hope that they will resist the temptation to imitate Oxford by suggesting that for administrative convenience our democratic institutions, such as they are, be weakened. I hope instead that they will give their fullest and most careful attention to our structures of financial management and internal control.
Professor G. R. EVANS:
Madam deputy Vice-Chancellor, three brief points on quantifying the unquantifiable:
1. Are we in deficit or in surplus? At (8) we read the cheery news that 'current projections show the University moving to an operating surplus of about £12m in 2008-9'. (Will that be because of the anticipated huge rise in our income as we use our history to make money in the 800th anniversary 'celebrations'? See Guardian Education, 24 May). At (27) it says that the estimate for 2005-06 is for a deficit of nearly £10m. At (65), under the heading 'Uncertainties' we read that the 'figures must be treated with caution because the income streams are uncertain'. The missing link is 2006-08, which is going to be an exciting period as we swing through an arc of £22m from deficit to surplus.
2. 'Projected additional income for research is dependent on the University's ability to gain funding for research grants and contracts on the basis of full economic cost.' Similar sentiments appear in (4) which speaks keenly of income 'derived from research activity'. I hope the bean-counters will continue to remember that research in the arts and humanities done in that 'research library of national importance' in West Road (24) does not necessarily involve getting a research grant, nor should it. Such intellectual endeavour must not come to be despised in the rat race Cambridge research threatens to become if it is to be driven solely by considerations of its earning power. There is more to Full Economic Costing than that, of course; it is ambitious to quantify the unquantifiable and needs watching.
3. And smoothly to my third point. 'Funding priorities' is a peculiarly opaque section in a Report otherwise to be commended for making strides in the direction of greater clarity. 'Priority additional funding' (41), being interpreted, seems to mean additional funding for things deemed to have some degree of priority. I would like to understand the basis of these estimates, though, and why there seems to be so much potential overlap. £4.9m is on offer to cover 'estimated costs of implementation of the forthcoming proposals for salary restructuring'. Does that mean extra money for salaries or extra money for getting the proposals through and running? For we surely cannot logically grace an allocation for something we have not yet agreed to do. Where is the boundary between promotions and regradings (an additional £1.1m) and 'salary restructuring' (42)? And how do these figures map onto (46) which promises yet another £2m 'to facilitate' 'significant cost savings' through 'staff restructuring by early retirements and redundancies and positioning for the next RAE'. I am not clear how spending more money saves money. It did not the last two times we tried that sort of thing.
Nor do I see at a glance the relationship between the promotions and the 'redundancies' and how it is possible to estimate in advance what proportion will be rewarded and what proportion eased out. And all this because HEFCE threatens a financial penalty rather less than this seems likely to cost if we do not set up our temple to HERA.
Just one last thing. (I know that makes four, but my move from three to four is no more notable than some of the slippages I have been pointing to.) Under the heading of utilities costs (44) there is a mysterious reference to 'a fixed contract for supply' which has expired at a cost apparently of an additional unforeseen £1m. What contract? Why was this not foreseen? I trust the Council will explain in its reply. That at least should surely have been a quantifiable quantity? Professor Anderson's warnings about control should be heeded. Silly ideas with a following wind from the 'real' centres of power do far too well here, and can consume our resources only too easily.
Dr D. R. DE LACEY:
Deputy Vice-Chancellor, it is good to see that the 800th Campaign is intended 'to generate investment for key priorities' (8). This suggests that such priorities have been identified. Yet we still await the drafting of a Strategic Plan (12) which should of course be the basis for all the measures we are discussing today.
Meanwhile, in a Discussion in December 2003 (http://www.admin.cam.ac.uk/reporter/2003-04/weekly/5944/20.html) I expressed concern over the way museums were to be funded. I note that the projected income now includes £1.5m from the AHRB to assist in this funding. It is not clear from the figures whether this has been secured, or is as hypothetical as the £1.5m to be given by alumni this year; a figure which is admitted to be 'optimistic' (64). Even less clear is what will happen if the AHRB fails to produce this sum, or there is dispute over the proportion to be paid by the Schools. A definitive statement on the future of these vital collections would be welcome.
Third Joint Report of the Council and the General Board, dated 23 May and 11 May 2005, on the ownership of Intellectual Property Rights (IPRs) (p. 709).
Professor I. M. LESLIE:
Madam deputy Vice-Chancellor, this Third Report on Intellectual Property Rights has been modified from the Second Report in light of the Discussion last year, and by further discussions which have taken place thoughout the past twelve months. I would like to thank all those who have contributed constructively to those discussions. I would particularly like to thank Professors Cornish and Bentley and Joanna Cheffins for casting their expert eyes over previous drafts.
This Third Report follows the main thrust of the Second Report. It provides consistency and clarity to the ownership of intellectual property. It recognizes the obligations that the University, academics, and students have to those who sponsor research; the default position described by the policy can thus be overridden by agreements with sponsors. The default position is, however, consistent with the provisions of our major sponsors, particularly the Research Councils and medical charities. As in the previous Report, copyright is assigned to creators; in the case where the inventors decide IPR should be protected, the right to apply for a patent is assigned to the University.
There are a number of differences between the Second and Third Report. I would like to note five of them.
First, there is clarity over any investor's rights associated with copyright which the University may have, including database and performance rights. These are licensed to creators automatically and will be assigned to creators on request.
Second, there is an explicit provision for inventors to choose not to involve the University in exploitation of intellectual property.
Third, the conditions under which the IPR created by students would be assigned to the University are made clearer, based on Imperial College's policy. The one difference from Imperial is the requirement to warn students that they may be subject to these conditions because of the working practices of their research group.
Fourth, there is an explicit recognition of open source development and a lightweight mechanism for authorization for those in non-research areas wishing to work in this way. (Researchers are already free to follow this path by virtue of Regulation 7.)
Fifth, there is student representation on the Tribunal if a student is involved.
This proposal does not represent an enormous change in the disposition of the ownership of intellectual property. The vast majority of patentable intellectual property that is created in this institution is already covered by agreements with sponsors. This policy does affect the relatively small amount of intellectual property that does not arise from external sponsorship and does so by bringing it in to line with the Research Council and charity sponsored research. The motivations here are consistency, clarity of policy, and transparency with respect to what activities are taking place in the University.
I fully accept that there will be circumstances which the policy does not address. The following is taken from the Harvard IPR Policy:
'Since activities in the University are too diverse and are evolving too rapidly to permit a statement of a University-wide general policy which can be mechanically and unambiguously applied to every possible situation that might arise, it is felt necessary for detailed policy to evolve by the making of decisions on individual cases based on interpretation of the general policy and principles enunciated below.' (http://www.techtransfer.harvard.edu/PatentPolicy.html)
This consideration is part of the motivation for the appeal procedure described within the policy; this procedure should provide reassurance where the policy has not spelt out the outcome in every imaginable circumstance.
In the Discussion last year, a number of speakers suggested that the University adopt the 'Melbourne model' in which IPR that is free of third party (i.e. sponsor) restrictions is owned by the academic and revenue shared with the University. Further information about the Melbourne model is relevant:
The proposed regulations in the Third Report provide a path which might be considered analogous to the Melbourne policy, but with one fundamental difference. It provides for University ownership rather than academic ownership, thus avoiding the possibility of either confusion or of joint ownership (and thus potential stalemate or exploitation of the weak by the strong). If the academics agree to exploit without the involvement of the University, and if there are no agreements with third parties that prevent it, they may do so. However, if they cannot agree, the ownership by the University allows the University to arbitrate in commercialization decisions.
It is not a motivation for this policy to make a great deal of money for the University. How could it be? The ownership of the majority of patentable intellectual property is already prescribed by sponsorship agreements. For precisely the same reason, the policy does not imply an increase in investment in technology transfer.
A set of principles that encompass the ownership of all intellectual property in the University must take into account the requirement for academic freedom as well as responsibilities to our funders. This consideration is not unique to Cambridge. The introduction to Columbia's IPR policy contains the following:
'University policy is here limited to inventions and discoveries which are or may be patentable as well as to the technology associated with them. The reasons for this present limitation are linked equally to considerations of balance between faculty privilege and University rights and needs. The area of patentable invention and discovery is well-defined and sharply self-limiting.' (http://www.stv.columbia.edu/guide/policies/app_I.html)
I find some reassurance that Columbia recognizes IPR policy as a delicate balancing act, and that they chose a similar (if more restrictive) solution.
Deputy Vice-Chancellor, I realize that not everyone will welcome this policy, but it does command significant support. It gives as great a level of control to academics as any policy of which I am aware, and is more generous in sharing the monetary benefits than any policy of which I am aware. (If you hear assertions about 'more liberal policies' I suggest you read the fine print of the policies of the named universities, in particular with respect to how time is spent by academics.)
Most importantly the proposal before us provides consistency, clarity, and transparency. It allows the University to intervene, with a well specified process, in disputes concerning IPR including those involving students. This policy balances academic freedom with academic responsibility. I firmly believe it is the best policy for the University.
Mr R. J. DOWLING:
Deputy Vice-Chancellor, once again the Council has come to the Regent House with an IPR Report couched in the language of ownership by a corporate University rather than by individuals. Many details have changed, and credit is due to Professor Leslie for changing them, but the general tone of the Report is the same as that of its two doomed predecessors.
Why is the Council so desperate for ownership to rest with the University? It is not for financial reasons; the Report makes it quite clear that the University cannot hope for any significant boost to its income from this Report. It is not for fairness, consistency, or clarity; the Report twists and turns as it copes with special case after special case. Nor is it to stimulate the commercial exploitation of our creations; the proposed layers of bureaucracy and delay take care of that.
The reason is simple. The philosophical juggernaut of University ownership of IPR started years ago. You may recall, for example, our former Vice-Chancellor's infamous slur on the University's creative geniuses that 'there are very few true individuals'. It now has its own bureaucratic momentum and despite two resounding rejections in Discussions nobody in a political position to end it has had the political courage to say 'stop'. But the Regent House must have that courage; Cambridge needs us to have that courage.
Cambridge has the Cambridge Phenomenon. The benefits of that are obvious. We have a thriving science park, we have a huge number of successful spin-off companies elsewhere, and we in the University have local companies contributing to the coffers of those Departments with the initiative to organize them. The disadvantages are equally obvious. We have ridiculous house prices and great pressures on our infrastructure. But nobody can deny that the phenomenon exists. Our University has given the local economy a huge, high-tech, high-income boost.
But why Cambridge, and not Oxford or Manchester? In their eponymous study of the Cambridge Phenomenon, Segal Quince Wicksteed identified the University's policy of ownership of IPR by its creators, a policy unique to this University, as one of the principal factors in the success of the Cambridge high-tech economy. And now the University Council threatens to jeopardize this success story with the changes proposed in this Report.
It makes no sense to kill the goose that lays the golden eggs. The Government is desperate for increasing commercial exploitation of academic research as happens so well at the moment in Cambridge. The City benefits from the vigorous exploitation of our discoveries under the current regime. The University benefits from its position at the heart of this thriving local economy with our present, enlightened policy. But nonetheless the Council seeks to change it all. We must not let them. We must thoroughly amend the Graces to maintain our ownership of our creations so that we can close the book on this whole exercise. We must reject Council's ill-advised, foolish, and thoroughly dangerous proposals.
We tamper with the Cambridge Phenomenon at our peril.
Professor W. A. BROWN:
Deputy Vice-Chancellor, a quaint feature of those opposing this Third Joint Report has been their nostalgic vision of a world of benign inventors, sharing the commercial benefits of patents with their collaborators and with the University in which they work. The proposals, they tell us, will cramp intellectual freedom and chill commercial incentive.
Whether or not this applies to those individuals who are opposed to this Report, it is out of touch with the reality of most commercially exploitable, patentable research in this University. This is funded by Research Councils and industrial sources, and is not obviously cramped by their accompanying IPR requirements.
But it is also out of touch with the reality of the needs of research workers. Without defined rights, both research staff and research students are sadly vulnerable to the neglect and expropriation of their rightful intellectual property. As Chair of the Board of Graduate Studies, I particularly welcome, as do the graduate student representatives, the protections that this report offers to students. I welcome also the presence of a student representative on the Technology Appeal Tribunal when student rights are contested.
These regulations are overdue. They are unusually liberal and generous by the standards of other comparable universities. And it is of great importance to this University and to our staff and students that we adopt them.
Professor K. GLOVER (read by Professor I. H. WHITE):
Deputy Vice-Chancellor, as Head of the Department of Engineering I welcome a clarification of the University policy governing intellectual property. We were given the chance to review an earlier draft of the new policy and much of our feedback has been incorporated in the current draft. This offers a workable solution to the difficult problem of balancing the individual interests of academics and students, the collective long-term interests of research groups and Departments, and the commercial or philanthropic interests of our many and varied research sponsors. Above all, the policy and its implementation must safeguard the openness and collaboration necessary to provide good teaching, build strong research teams, and foster trusting partnerships with sponsors.
Professor Sir RICHARD FRIEND (read by Professor I. H. WHITE):
Deputy Vice-Chancellor, at the Discussion on 18 May 2004, I broadly supported the proposals in that Second Report, but raised a number of issues which I considered needed clarification. These concerned the operation of the scheme, and I did not think that these regulations gave adequate support for the inventor to determine the direction and course of exploitation following the filing of patents. I am pleased to find that the Third Report had addressed these issues, and I am pleased therefore to support this proposed IPR policy.
Professor S. J. YOUNG (read by Professor I. H. WHITE):
Deputy Vice-Chancellor, I was a member of the General Board when the Second Joint Report was published in March 2004 (Reporter, 2003-04, p. 599) and as Chairman of the School of Technology, I was closely involved in revising the Model Research Collaboration Agreement which RSD use as the basis for establishing external sponsorship agreements.
Throughout my time on the General Board I consistently argued that the only IP which the University should seek to own should be patentable IP and that control should lie firmly with the academic inventor both in the initial decision as to whether to exploit or not, and if the former, then which exploitation route to take. At long last, this Third Joint Report unambiguously and without caveats appears to enshrine these principles.
Of course, there is a more fundamental argument as to whether we need an IPR policy at all. Some would claim that the current laissez faire attitude continues to serve us well, and as a recruitment and retention perk, it should not be underestimated. I would argue that it is not actually serving us well at all and that the fog surrounding IPR in Cambridge is damaging.
In my experience, serious external investment involves unnecessary delay and legal expense caused by lack of clarity on IP ownership issues. Furthermore, the University cannot continue to ignore Government policy which will increasingly require universities to have an accountable and transparent exploitation path for their IP. In my view, this Third Joint Report provides a clear and workable framework for IPR in Cambridge whilst retaining a generous incentive structure for those who generate it. As such I welcome it and strongly endorse it.
Professor I. H. WHITE:
Deputy Vice-Chancellor, for those engaged in applied research, there can be few matters that are as important as that being discussed today. The ability to control the output of one's research through publication or patenting not only affects the potential future exploitation and applicability of one's research, but indeed may affect the direction of that research in the future. In any leading university therefore, it is of the greatest importance that clear policies exist, vesting in inventors the rights to control whether and how they exploit their research. The Third Joint Report provides such policies in a practical and imaginative manner. It does explicitly allow the inventor to decide whether to publish or not, and to choose his or her commercialization path other than through Cambridge Enterprise, when funding rules allow.
Researchers are now to disclose their inventions, before patenting and exploitation. In return however, they can now have greater confidence in the value and originality of their patents within the University portfolio, something that has caused tensions in Cambridge in the past. The Third Joint Report helps avoid the current situation, where, as Professor Sir Richard Friend highlighted in the Discussion of 26 May 2004, 'a co-worker or student who finds that their contributions have not been recognized in someone else's patent can only seek redress in court.' The proposed policy should not therefore make exploitation more difficult, but rather potentially make it more straightforward.
As Chair of its Council, I am very aware of the growth in research grant activity within the School of Technology of approximately 30% in the past two years. Indeed it is clear that research groups are increasingly dependent upon research contracts to allow them to follow their desired research paths. It is therefore important that the University has formal procedures which ensure that Intellectual Property agreements are formed, in a manner sufficiently accountable to those awarding research contracts and fair to those carrying out the research. It is my belief that this agreement embodies such procedures.
I therefore support the Third Joint Report.
Dr F. M. STAJANO:
Deputy Vice-Chancellor, before accepting a Lectureship in 2000, I had been working in Cambridge since 1992 as a research scientist in a 'Cambridge Phenomenon' laboratory from which half a dozen hi-tech start-up companies were born.
At the time I was offered my Lectureship, I also received recruitment offers from industry; one of them, also for work in Cambridge, offered a remuneration package worth three times the one from the University.
My reasons for accepting this low-paying academic job, despite the concrete availability of a much more remunerative alternative, were based on freedom. On the intellectual side, the freedom to pursue the research I found worthy, as opposed to what a company would consider fashionable or exploitable; on the financial side the assurance, at the time confirmed by familiar facts, that Cambridge academics owned the ideas they produced and were free to exploit them commercially, without any interference from the University.
The liberal policy that existed at the time when I accepted my post here was what allowed the University to attract and retain the brightest and most entrepreneurial researchers. The low wages were somehow compensated by the perspective of a chance to strike it rich. It was a win-win situation that allowed the University to pay a lot less than market price for the best minds.
With the policy we are here to discuss, and with the two equally broken attempts that preceded it in recent years, the University repudiates the implicit promise it made when it offered me this post. By taxing away two-thirds of the profits, it removes any incentive for inventors and entrepreneurs to work within the framework of the University. Under the proposed policy, when someone thinks that a million can be made out of an idea they just had, the only financially sensible course of action is to quit and start an independent company.
Why would the University ever want to do this and encourage its smartest people to leave? The 'goose with golden eggs' metaphor brought up in earlier Discussions simply points to greed - and there must be at least something of that motive when the tax rate imposed on the inventor is a fantastic 66%.
Yet Pro-Vice-Chancellor Professor Leslie, invited to present the new IPR proposals to the staff of the Computer Laboratory last week, told us that the income from this tax was only about 1% of the income from research grants, and that the purpose of the regulations was not to make money. Instead, he explained when questioned, the purpose of taxing inventors was to ensure that there be no incentive to not seeking external grants. This is a strange and complicated motivation which perhaps requires unfolding. As far as I can understand, the reasoning is as follows. Research sponsored by grants is good because it brings a lot of money to the University; but, on that research, there are contractual IPR restrictions; therefore we had better penalize the non-sponsored research too, otherwise people will do that instead of bringing in grants.
This is clearly misguided. Quite apart from the essential fact that making money as an entrepreneur is a lot harder than getting money off the Research Councils whose explicit job it is to dish it out, the fair mechanism to give research staff a financial incentive to seek grants is to reward those who do. Such a mechanism already exists, and it is to pour back a share of the overheads into a fund controlled directly by the investigator. It is very hard to see how taxing self-generated IPR would ever act as a motivating incentive to seek externally funded grants, rather than as an incentive to get out of the system for those capable of making millions, and as an incentive not to bother for the others.
The damages done by the proposed IPR-grabbing policy cannot be underestimated. This policy drives away the brightest, demotivates everyone who stays, and makes it hard to attract any new good people. Never forget that the salaries we offer are much lower than market rate for equivalent industry posts. Before, a bright researcher with entrepreneurial aspirations would come to Cambridge for its liberal IPR policy. Now, we'd have to persuade her to join despite it.
Compared to these undeniable damages, what are the benefits? If this greedy IPR tax allowed the University to double its income it would still be despicable, but at least it would offer us some advantage in return. If, instead, it is true that the proponents of this policy aren't in this for the money, and that the IPR tax only adds a merely noticeable 1% to our income, then what's the point? Comparing what we gain and what we lose, the only beneficial course of action for the University is simply not to collect this tax.
I urge the Council to repeal the current IPR proposal and reinstate a regime in which all IPR is owned by the academic who generates it unless she agrees to funding arrangements stating otherwise.
Professor R. J. ANDERSON:
Deputy Vice-Chancellor, there are serious problems with the current intellectual property regime at Cambridge. However, the proposals before us will make matters worse. I see three big problems, and many smaller ones.
The first problem is that the University will accumulate many claims to IP which are worth nothing - but which will infringe academic freedom. This problem goes back to the infamous Grace 6 of 21 March 2001 which claims for the University all intellectual property generated by externally funded researchers, except for 'normal academic forms of publication'. Most research students are externally funded, as are almost all postdocs and even some Professors. Grace 6 claims copyright in all software they write, all genetic data they sequence, and just about everything else they create in their field. These claims apply not just to final output, but also to intermediate material such as their e-mail databases and their lab notebooks. And as we heard in previous Discussions, the University can claim a royalty share from academics on soft money who write popular science books - indeed anything without enough equations or citations to be a 'normal academic publication'.
Proponents of the IP policy claim that this isn't what they meant (Professor Minson, Discussion of 15 October 2002). However, judges rely on the text of regulation rather than on the spin used to get it through. This is particularly important with IP, as all IP infringement may soon be a crime. Last year, the European Commission tried to push this through in the IPR Enforcement Directive, and the European Parliament rebuffed them. However, as the software, music, film, and drug industries all want IP infringement criminalized, the parliament will be allowed to vote again this year, and no doubt as often as it takes.
Grace 6 could have seriously unpleasant effects. Take my own field, computing. Microsoft detests free software, and has funded SCO to harrass the industry with litigation over parts of the GNU/Linux operating system to which SCO claims to have acquired rights. If SCO offers the Vice-Chancellor a million dollars for a licence to all system software written in Cambridge by people on soft money, would we learn of such a deal in time to object to it? Would the Old Schools even realize what motives lay behind such an offer?
The great majority of the IP rights acquired by Grace 6, however, have no commercial value. If you work for us on soft money, the University claims copyright in your e-mails, in your notebooks, in your lectures, and just about everything else. Although it brings the University no money, this IP overhang threatens freedom in many ways. The most critical from the viewpoint of junior academics is job mobility: if it's hard to take your files with you, then it's harder to move. The most strategic is freedom of expression. If the University owns copyright in something controversial that you said, it has a legal power to prevent this utterance being repeated. The University is thus needlessly exposed to improper pressures.
Now let us look at what the new policy proposes. Tenured academic staff who are not working on an externally funded project get to keep copyright. That's as it should be; our old policy was that copyright must in general remain owned by academic creators as a guarantee of freedom of expression. The Cornish committee added 'We see no reason why work commissioned by a sponsor should as of course belong to the University.' However, the IP policy now before us disagrees: it 'cannot subvert' (clause 11) any duties imposed by external funders (even though Regulation 10 does indeed subvert such duties in respect of database, typographical, and recording rights). We find the Research Councils' clause RG22 quoted against us: 'Unless stated otherwise, the ownership of intellectual property, and responsibility for its exploitation, rests with the Research Organisation.' Although Professor Leslie told us that 'the default position is consistent with that of our major sponsors', the new policy misses the opportunity to 'state otherwise' in the general case of copyright. So we have a University policy which says that employees keep copyright except when overruled by external agreements; a general Research Council policy which says the University owns everything 'unless stated otherwise'; an EPSRC policy that contradicts this; and a Regulation 14 on student IP that is silent on Research Councils. To me, this mess looks suspiciously like continued University ownership of externally funded copyrights.
Even Microsoft does not try to lock down all its employees' IP - colleagues who work there have to give Bill first refusal of their patentable ideas, sure, but are allowed to write books (even non-fiction books) and keep the royalties. Surely Cambridge must treat its postdocs no worse than the 'Evil Empire'.
In the long term, we need to educate policymakers, change IP law, and reform the Research Councils. For the medium term, colleagues and I propose to amend Regulation 10, by vote in the Regent House, to enshrine the principle that the University will not become a long-term owner of academic intellectual property. Every piece of academic IP that somehow comes into the University's possession and that is not licensed to some third party, or otherwise exploited, within a fixed period of time, will be returned automatically to its creator. The overhang of valueless but dangerous rights accumulated under the 2001 policy will thus be cleared.
The second big problem is that the policy will take away from academic staff our traditional right to patent our ideas. This not only discriminates against technology academics; it will also make employment here less attractive that at our key competitors. Stanford academics can patent ideas unless their reduction to practice involves 'more than incidental use of facilities'; MIT is more generous still and applies the test 'significant use of facilities'. Even those US universities that take all patent rights often give more generous terms - higher royalties, a veto over exploitation paths, or both. We will therefore ask this House to amend Regulation 6 to preserve our right to patent our ideas where this is not precluded by external funders.
The third big problem is that the new policy's provisions on start-ups amount to a demand that any academic in science, technology, or medicine who wishes to start a research-based company must give the University such share of the initial equity that the University, at its sole discretion, may require.
In most high-tech industries, commercialization happens via start-ups rather than via patent licences. In our case, we will be expected to hand over some of the equity in our companies to the University. The scope of the IP claims by the current policy is such that academic entrepreneurs will be asked by venture capitalists to provide letters of comfort from the University. On past form, these will not be forthcoming unless you agree to hand over half or more of your founder's equity to the bureaucrats of Cambridge Enterprise. (By comparison, Stanford usually licenses its patents to their inventors for a tiny amount of equity, typically 2%. Stanford has learned that richer entrepreneurs make bigger donations.)
Another business killer will be conflicts of interest. If Cambridge Enterprise is heavily invested in a sonic screwdriver for wombat sexing, and I turn up with a muon chronoscope for the same purpose, the bureaucrats may well put me on hold. In the computer industry, such conflicts are commonplace, and speed is of the essence; if CE can put you on hold for six months, they can probably kill your business.
We will therefore ask this House to amend the Schedule so that in the event that academics wish to commercialize an idea by a start-up and do not wish Cambridge Enterprise to get involved, they can do so by surrendering a fixed small share of their founders' equity.
There are several other details that need amendment. But time presses.
To sum up, deputy Vice-Chancellor, this policy will not achieve its stated aims.
It will not provide clarity of ownership, but a thicket of conflicting claims that will make only the lawyers and bureaucrats happy.
It will not provide consistency across the University - while tenured writers of non-fiction books will do fine and tenured drug discoverers will do better than at present, the situation for technology staff will become markedly worse, and that of contract staff will remain miserable. This is divide-and-rule at its worst.
This policy should go to a vote in the Michaelmas Term, and that vote will be the most important for many years. If we get it wrong, we will undermine economic growth, harm the local tax base, and alienate the academic and business communities from each other. Within the University, we will harm recruitment, retention, and ultimately RAE outcomes in large areas of science, technology, and medicine. The Old Schools have had three attempts to get this policy right and have failed. It now falls to us to rewrite it using the ballot.
Dr M. K. BOND (read by Professor R. J. ANDERSON):
Deputy Vice-Chancellor, I am informed that the proposed new legislation on intellectual property requires me to hand over, to the University, ownership of internet domain names corresponding to work done under University employment.
Some controversial comments by myself and colleagues on the UK banks' 'Chip and PIN' electronic payments scheme reside at http://www.chipandspin.co.uk, which is currently registered in my name. If the planned legislation does indeed require this, what is the hand-over procedure? What guarantees can the University give that our free speech on this delicate issue will be protected?
And one more thing: although employees will have the right to develop unregistered trade marks, the University has the sole right to registered trade marks. I understand from Professor Cornish's book that the latter have precedence. So if I were to criticize the insecurity of retail banking systems by selling 'chip and spin' T-shirts, Would it not be possible for the University to register 'chip and spin' as a trade mark and stop me?
Dr C. E. PITT:
Deputy Vice-Chancellor, I would like to comment on one aspect of the Report, in my role as a Computer Officer in the Department of Chemistry. I am concerned about the effect the policy in the Report will have on software written by staff whose main role is administration and not research.
Component 6 of the policy states that the University owns copyright in material prepared for its administration. This could be interpreted to cover much of the software written by academic-related staff within the University. Currently the situation is that such software can be released under an open source licence if its author chooses to do so. Under the new policy they would have to get permission from their Head of Department, which takes time and may not be forthcoming.
Releasing software under an open licence allows others to extend, fix, and improve it. The University benefits from that work. In the sector I work in, we rely on open source software.
If a programmer has to persuade someone else before releasing their code then they will be less inclined to release, less likely to share, and the University will lose in the long term. I hope the Council would consider amending the policy to give all staff the right to release their code freely.
Professor N. BOYLE:
Deputy Vice-Chancellor, this is an issue which, should it be misrepresented in the press, could be the source of immense harm to the University, particularly in the approach to our 800th anniversary fund-raising appeal. This is not simply because potential donors might feel less willing to give to us if they felt that we were artificially making ourselves poorer by not claiming income that other universities, and the governments that fund them, regard as properly theirs. There is the much more serious consideration that the public perception might be that the dons of Cambridge were putting money into their own pockets that properly belonged - and anywhere else would be regarded as properly belonging - to the University, and were then asking benefactors to make up the consequent shortfall. Although such a perception would be a travesty of the truth, I could not say it would be entirely groundless. For many years now a very difficult and trying problem has been growing which is at the root of many different discontents that have troubled us and which the issue of intellectual property illuminates rather clearly.
The problem presents, as the medics say, as a problem of governance. How, that is, by whom, is the University's intellectual property policy to be decided? Constitutionally speaking the answer seems to be: by the Regent House voting on a Grace promoted by the Council of the Senate. The problem is that these governing bodies of the University, entrusted by the government with the administration of very large amounts of public money, and by the Charity Commissioners with the discharge of very important public and charitable functions, are on this occasion required to decide a matter of direct potential or actual pecuniary interest to their own members. We have here a classic case of the conflict of interests. There has been much talk, in the debate about this matter, of academic freedom. Personally speaking, when I hear the phrase 'academic freedom' I reach not for the revolver but for the air-freshener - in this context, as in others, it suggests something is concealed beneath the stairs. What is really at issue here is not academic freedom but money. We are being asked to decide how much of a certain pot of money we should use for the public and charitable purposes of the University and how much of it we should pay to ourselves for our private benefit. We are being asked, that is, to be judges in our own cause. Strict rules are rightly applied to Members of Parliament, and to others in public office, to ensure that they are not exposed to such conflicts of interests: in certain circumstances nobody can be as dispassionate as the general good requires that they should be. It is therefore necessary to define what degree of personal interest disqualifies one from taking part in a decision or at least to provide for the disclosure of interests so that any possible bias of one's judgement may be assessed by the public. I miss in the Report we are discussing an appendix stating clearly in respect of those who commend or dissent from its conclusions what their business or other financial affiliations may be that are in any way dependent on their intellectual property and that might therefore be affected by policy decisions of the University in this area. I hope that this omission may be rectified before the Report is put to a ballot, or that the Report and any amendments to it may be republished without the subscriptions of those who prefer not to furnish such information.
But the problem of course does not stop there. There are certainly members of the Regent House, not members of the Council, who have or may in the future have financial interests which could be affected by the intellectual property policy, whether in respect of patents or of copyrights. Indeed I suspect that virtually all of us are in that position. Yet we are charged with voting on the Report and so with deciding on the policy. This fills me with unease, not just because I am not sure that we can be trusted to base our decision on the public mission of the University rather than on our personal advantage - in a suitably calm and reflective atmosphere I think we probably can be so trusted - but because I am not sure that we can expect anyone else to believe us. I do not think, in other words, that the system of governance that we have, and that confronts us with conflicts of interest such as the issue of intellectual property rights raises, is any longer compatible with the expectations of the society which funds the University and within which the University operates.
The deep and difficult problem which has been growing throughout the years in which I have been associated with Cambridge is that the University as a self-governing community of scholars has been gradually being replaced by the University as an employer. When I was an Assistant Lecturer you contracted with the University to provide 60 hours of teaching a year. Now we have a 38-hour week and six weeks of paid holiday, and are told, not that we are expected to further our subject, but that we are employed, among other things, to do research. Behind our current problem of governance lies the problem of a fundamental change in the character of the academic life. The question who owns the intellectual property we are held to have generated has been able to arise largely because there is now thought to be such a thing as 'university time', within which the generation may have occurred, and which has been bought from us by the university in exchange for our salaries. That is not an unreasonable view and it is likely to seem self-evident to those who entrust to us public monies derived from the taxation of those employed elsewhere in the economy. I rather doubt, though, whether it will also seem self-evident to them that we should be using procedures originating in an age when few members of the Regent House had any direct financial interest in its decisions in order to determine how those public monies are to be disbursed and to what extent any profit arising from them should be returned to the public purse or should be distributed among ourselves.
Professor G. R. EVANS:
Madam deputy Vice-Chancellor, an interestingly unified set of speeches has just been read by a single voice a little earlier. I do not suggest that their authors did not write them quite independently. But they did have a faint ring of establishment set pieces, allowing the Council to say how many supported these slightly revised IPR proposals this time.
'Consistency' is the battle-cry of this Report, inconsistency its repeating theme (1) 'The policy presented provides as much consistency as possible across the spectrum of research funding sources'. (5) 'The policy must address … (ii) Consistency across the University in the treatment of intellectual property'. (11) 'Some inconsistencies will continue to arise'. Annex E, proposed guidance to students. 'Practices within the University with respect to the execution of research by graduate students vary'.
Unequal treatment of employees is one thing (though not a small thing). Unequal treatment of students is quite another. I can find in this Report no discussion of the nature of the contract which comes into existence between the fee-paying student and the University when the student 'buys' a course leading to a qualification awarded by the University as a degree-awarding body. Nor do I see anything about the legal basis on which the offer of admission to a course leading to a research degree of the University is to be made conditional upon some students but not others assigning their IPR to the University or a sponsor. You and I go and buy sofas for the same price. You get to take yours home and sit on it when you like. I have to leave mine at the shop and may sit on it only when I have asked permission. Why should I stand for that?
The problem is that this IPR policy is driven by our whipped-cur attitude to funding sources. We fawn, we wriggle, we wag our tails. It sticks in my throat to see us expecting students to imitate this craven behaviour, nay, requiring them to do so. Ph.D. (thesis approved for submission by funder) or M.Phil. (beholden to corporate funding) may perhaps have to become a special category of degree, with those famous cherry-coloured silk facings to distinguish their holders from those who have done their research free and unencumbered in the pursuit of truth.
Free consent cannot lawfully be compelled. What is this nonsense at (16) of the proposed Ordinance? 'Academics … and students may have to agree'. That has a distinct whiff of an unfair contract term, especially for students whose doctoral studentship is to be funded if and only if they give up their IPR. I do not see protections for students here unless they regard the bars of a cage in that light.
That appeal procedure is surely incoherent and also inconsistent. Look at the wild confusions inherent in the 'subject-to' provisos of paragraph 38.
To turn finally to the other extreme, those at the top, and some further consistency questions. When the current Master of Trinity wrote Our Final Century, he was externally funded (as a Royal Society Research Professor) and thus subject to what is now generally know as 'the infamous Grace 6 of 21 March 2001'. Did he, as a matter of fact, hand over two-thirds of the royalties to the Chest? And have university academics in externally funded Chairs been treated as subject to the 2001 policy? I name no Pro-Vice-Chancellorial names but the Council may like to tell the Regent House in its reply how any earnings or profits have been shared with the University. And what will happen to the IPR obligations of Professors in ordinary Chairs when a donation of a couple of million pounds gets such an existing Chair renamed after the benefactor, and the extra £2m is in reality simply thrown into the Chest? If I were giving money to fund a Chair at Cambridge I might even give the money on condition that the holder of 'my' Chair cut the profits with me, even though previously he or she had enjoyed the relative freedom of a University salary cheque in a straightforward office. Does the last speaker give the University his royalties? He did not say. And incidentally, the Regent House is not made governing body of Cambridge by the Government, as he should know. Perhaps he would prefer Tony Blair to run the place.
These consistency questions surely take us into areas covered by the Pay and Grading Report we are to discuss in two weeks. (Recruitment, retention, and market pay, as several speakers have made clear.) I trust the overlaps are going to be considered and the Council will not try to rush Graces through on one before the other. There must be a vote on both and we should not need to call it.
Professor W. R. CORNISH:
Deputy Vice-Chancellor, the general policy objectives of the proposed Ordinance are spelled out in the Report, Para. 5. They have not in essence changed since the Report of the Working Party of 2003 and the first Draft of this proposal which was debated last year, with both of which I had a good deal to do. As the present Report shows, giving the proposals an explicit form is complex because IPRs differ in their subject-matter, form, and scope. There are no simple solutions and the matter is made more difficult by a growth of overlaps between the different types of right.
The policy has been built up by drawing one distinction that is fundamental and is a large part of the University's justification for intervening to the limited degree - and it is a very limited degree - now being proposed in the Joint Report. That distinction is between IPRs which require an application to be made to patent offices and similar bodies in order to obtain the right; and those IPRs which arise informally, as with copyright. To obtain a patent is a skilled and costly business which requires the strict observance of time-limits. If all scientific and technical researchers in the University were well-versed in the art of patenting and had experience of judging the prospects of success for which a patent is one jumping-off point, it could simply be left to them to think about commercialization and take the necessary steps. No one can expect that that will occur across the board. It is of course one reason why Research Councils, charities, and industrial sponsors have insisted, in the various ways now spelled out in the Report, that ownership of the IP rights should be with the University or other nominated body. That is therefore why, in the great bulk of scientific research carried out under such backing, there is, and there will continue to be, binding arrangements for obtaining and administering the IPRs on successful research.
The proposed Ordinance accordingly deals in this sphere with a 'default position' for other research. It does so in a way that, while requiring information about results with a prospect for commercialization to be made known to Cambridge Enterprise, it insists that the way forward thereafter is worked out by discussion between the researchers and Cambridge Enterprise. In those consultations, the researchers retain the upper hand because Ordinance 21 will allow them to insist on assignment of the rights to them or their nominees. This is subject only to sharing arrangements of the kind typically found in research sponsored from outside the University. There is an obvious fairness in putting these arrangements for the distribution of royalties or returns through equities on a similar basis. This aspect of the policy therefore justifies itself on grounds other than a search for extra funding for the University. That may or may not follow. Whether it does or does not will depend on the market value of the IPRs and that is not something knowable in advance.
The one other matter that I wish to stress at this stage is the value that this policy has in making plain that copyrights protecting the written and other expression of research are to remain with the researchers, subject only to strictly limited exceptions. The position in the general law on the matter is far from clear and the need to secure the freedom to publish needs to be guaranteed by an Ordinance to academics in every discipline, scientific as well as non-scientific. There has been a disturbing tendency in other universities, here and elsewhere, to sweep all copyright into their ownership. Among other things, this can lead to ludicrous requirements to notify all copyright material to the University as employer: such was the experience at one stage in the ricocheting IP policies of the University of Melbourne. The copyright proposals embedded in the Joint Report being discussed today are likely to be a signal to other institutions about this important legal embodiment of academic freedom. For me it is one very strong reason why the proposed Ordinance should be accepted.
Professor J. R. CRAWFORD (read by Professor W. R. CORNISH):
Deputy Vice-Chancellor, most international lawyers are now aware of the growing importance attached around the world to IPRs. New rights, extensions to the rights, new exceptions and limitations are now discussed at the international as much as the national level in response to growth of new technologies and new media of expression, above all, the applications of computer science and developments of genetics and biotechnology. Accordingly I have watched with interest debates in the University over a period when many more academics have become concerned with the commercial value of their research results. Like many others, I was disturbed by the first attempt to arrive at a general policy on IP ownership and related questions in the Council and General Board's First Report of 2002, because of its imprecision and its statements about central policy which appeared to have no direct correlative in the substance of the proposals.
Much has been done to alter the focus of the proposals since the discussion on that First Report. Most fundamentally from a legal point of view, the proposals have taken the form of a Draft Ordinance intended to find a place in Statutes and Ordinances and so are open to adoption and subsequent amendment only by formal procedures, rather than administrative action. If and when accepted by the Regent House, the Ordinance will strike a balance that will give very considerable support to important aspects of academic freedom. It will guarantee the freedom to place research results in the public domain, provided that it does not break obligations of confidence owed to others. In particular that guarantee is enhanced by according copyright in research to its authors and not to the University.
The proposal establishes a system by which researchers who make potentially patentable inventions must disclose them to the University. The University will then have the right to apply for the patent and if it decides to do so, it must proceed after discussion with the inventor. If the inventor wishes exploitation to take place through another channel than Cambridge Enterprise, he or she may require an assignment of the rights on terms which reserve a share in royalties from licensees or a proportion of equities in a spin-off company. That surely strikes a reasonable balance of interests that still leaves the inventor in a position to decide the route to exploitation.
Inevitably some researchers will have strong views on how that exploitation should be organized and in particular which venture capitalists and development companies should be brought in to the process. Others will have neither the interest or experience to become involved in any detail. The University has the difficult task of establishing a working scheme that will do best for diverse situations. The Report is right to emphasize that it has a range of responsibilities in the matter, not least the obligation to ensure that all those - particularly junior colleagues and students engaged in a joint project - have their interests recognized. It cannot fulfil its obligations unless it has some entitlement to be notified of potentially valuable developments and to see that timely steps are taken to protect that value when the IPR in question has to be applied for and granted. That, as I understand it, is why the proposed Ordinance draws its distinction between rights that require an official application and those which arise informally. The approach strikes a fair balance, containing as it does major safeguards for the inventors. It therefore deserves to be supported.
Professor L. BENTLY (read by Professor W. R. CORNISH):
Deputy Vice-Chancellor, having become a teaching officer of the University in the present academic session, I am familiar with the proposed Ordinance only in its present form. To me it establishes a clear regime for the allocation of intellectual property rights as between the University and its employees (as well as students (Ordinance 14) and CTOs/CRFs (Ordinance 12)). Although the provisions of the Ordinance may be varied in contractual agreements with third-parties (Ordinance 16), and these may represent the majority of situations in many field of research, it is important that the University make the default position as clear - and as fair - as possible. My views are that this default position is a very good deal for academic creators (compared with deals at other universities), and in turn for the University because in the long term the policy will create a positive environment for research.
The proposed Ordinance is better for academics than the arrangements provided by the legal system as the default position where employers gain all rights, albeit subject (as regards patents only) to very limited obligations to provide compensation to inventors The Ordinance is better for academics than one would get in the private sector, where the rights would almost always belong to the employer, and thus the proposal recognizes (and offers some compensation for) the relatively low levels of remuneration within the University sector.
Most importantly, the proposed Ordinance is better for academic creators than that provided in many educational institutions elsewhere, with most universities having decided to appropriate rights and thereby give themselves the power to exploit the creations of their employees (Annex D). It wisely recognizes that providing a positive environment for creators will in the long-term prove the best policy for the University. It is a policy that provides an environment within the University in which as much respect as possible is shown for creators, that gives incentives to researchers to create commercially exploitable productions, while simultaneously ensuring that the University obtains some revenue from the most lucrative inventions. This is a policy which will make it attractive for the best researchers to continue to work at Cambridge, and has the potential to attract researchers to Cambridge from elsewhere. I recommend its adoption.
Dr M. R. CLARK:
Madam deputy Vice Chancellor, as a member of the Council I have entered into the official University register a listing of potential conflicts of interest which can be consulted in the Old Schools. I would be more than happy to make a copy of that full declaration available to anyone on request. With regard to this Report I declare that I am the (co-)inventor of a number of therapeutic and diagnostic reagents in which I have personal financial interests from royalty payments. My rights in several earlier pieces of IP including the antibody Campath® were assigned directly to the Government's own NRDC, later privatized as BTGplc. Between the years 1994 to 2005 the royalty income from sales of Campath® has been (in rounded figures), £4.8m to BTG, £3.5m to the Medical Research Council, and an inventors share of £3.5m which is paid into CUTS Ltd appointed as Trustee, and of which rights over £2.3m have been waived in favour of the University and Department of Pathology. Of the remaining £1.2m my co-inventor Herman Waldmann and I have waived further rights in favour of several former research colleagues (post-docs and technicians). The total sum I have taken personally amounts to approximately £300,000 gross from a starting total royalty income of £11.8m.
Readers of the Report will see that I signed a note of dissent, my reason being that I do not think that the proposed policy will assist the process of technology transfer for the public benefit. Rather I see it as creating a further level of bureaucratic control which will inevitably result in some important inventions failing to be developed for public benefit. Also rather than ensuring that the exploitation of IPR created by University staff will be to the financial benefit of the University, I fear that the most probable outcome will be that in real terms the University will make a net loss.
I mean no disrespect to the hard working individuals within Cambridge Enterprise, nor to the Pro-Vice-Chancellor Professor Ian Leslie who has put much work into the redrafting of this policy. The current Report is a considerable improvement over previous versions, but if anything, in trying to address the many issues that were raised at earlier Discussions, he has simply highlighted the legal complexities, and has created many potential sources of income for lawyers specializing in employment and intellectual property rights. Even the inclusion of the Annex B giving details of the policies of some external funding agencies has illustrated that the often professed 'requirement for the University to own all IPR from externally funded research' is at the very least an ambiguously stated requirement. For example, why does the joint declaration RG22 from the Research Councils start with the words 'Unless stated otherwise', and why for example does the EPSRC go on to say that in addition to RG22 it 'does not lay down any rules about the identification, ownership, and management of intellectual property since these should reflect the individual circumstances of each case'? Whilst the AHRC goes on to say 'The Board acknowledges that there are no ideal arrangements for knowledge transfer and commercial development, and that individual arrangements will differ'. What we should not confuse is 'an obligation to provide mechanisms to allow IPR to be exploited for the public benefit' with 'a requirement for University ownership of IPR', the former does not depend on the latter. Certainly regarding individual research funding contracts I see no reason for the University to impose any ownership restrictions on its staff that go beyond the minimum requirements that are absolutely and unambiguously contracted by the funding agency.
One very practical problem with University ownership is how do you prioritize which pieces of IPR you give full financial support to, and what do you do with IPR that you choose not to support, yet on which you claim there is an obligation for the University to take ownership? If you support everything that is brought to the attention of technology transfer with patent filings indiscriminately, you would quickly consume many millions of pounds in legal costs, most of which would be for inventions that will eventually fail. Alternatively if you selectively reject most applications and only support a few, you risk stopping some good inventions from being exploited for the public benefit. How do you fund enough expertise within a University technology transfer organization to make informed decisions on all the vast output of IP from a university the size of Cambridge? Being successful in developing IPR is very much gambling with large sums of money, but to be successful it helps to both understand the risks and to be prepared to risk the possibility of losing large sums. Universities are in my experience not well placed to be professional corporate gamblers with large sums of money to risk, but that should not preclude individual members of staff from taking their own risks. Staff that are successful often become future charitable donors to the University and the Colleges.
I have two personal examples that illustrate the potential problems of university bureaucratic control. A few years ago I filed a patent with the TTO in the ownership of CUTS Ltd. The patent was pursued through the European and international treaty stages for about the first two years whereupon considerable extra legal costs were about to be incurred for national filings around the world. With very little time available I was informed that the University was no longer interested in pursuing the claims over the patent, but that I could have the IPR back if I covered costs of some tens of thousands of pounds. I did not have the time to take on this commitment so the patent was allowed to lapse. Shortly afterwards I was approached by an American biotech company which was interested in the patent, but by then it was too late. This scenario is likely to be all too commonplace unless the University implements a policy to make early, full and long-lasting commitments, or to promptly give up all rights and restrictions over the IPR so that the inventors can pursue them independently.
My second personal example is Campath®. At a late stage GlaxoWellcome abandoned development of this therapeutic product and it looked like 15 years of work would be lost and those patients who might benefit would be without a treatment. It wasn't clear if the product could be retrieved and it wasn't clear how much money was needed to mount a rescue. However, the rights in that antibody had not belonged to the University so it was not their decision to make, they had belonged to the inventors, all of whom still very much believed in the product. The initial ownership rights of the inventors meant that we had a very real claim for retrieving and reviving the product, even though Herman Waldmann and other key members of the team had left Cambridge and gone to Oxford. It was Herman Waldmann and Oxford colleagues who succeeded in getting the IPR relicensed to a US company LeukoSite, and BTG were persuaded by our lobbying to take on the financial risks of recovering all of the IPR from GlaxoWellcome. I do not think that had the decision and corresponding financial risks been entirely in the control of the University that Campath® would have been rescued.
The success of University derived IP, in particular of patents, is, I believe, and contrary to the statements of our previous Vice-Chancellor Sir Alec Broers, largely down to the determination of individual inventors. The other important thing is that inventions are not to be confused with discoveries, and whilst discoveries are often the result of collaborative work, inventiveness is a more restricted talent. Inventions are often built upon collaborative discoveries, but it is the individual inventors who are largely key to the origin and then the success in developing and exploiting patents arising from research within a University. You take away legal control from the inventors and impose a bureaucratic process at the risk of harming the successful outcome. In the last 25 years Cambridge University has been one of the most successful UK universities in technology transfer and the resulting Cambridge Phenomenon is no coincidence. What evidence is there that other UK universities have a better strategy? This proposed policy will harm technology transfer in Cambridge University and I call upon Regent House to amend or to reject it.
Mr M. V. LUCAS-SMITH:
Deputy Vice-Chancellor, once again the policy remains inexplicably discriminatory against academic-related and technical staff who write software for the administrative and managerial purposes of the University.
Section 16(iii) of the notes states 'academics own the copyright in works they create and have a right to place all the results of their work in the public domain', yet sub-section (vi) of the same notes introduces the inconsistency that 'the University owns copyright in material prepared and/or commissioned for its administration'. Presumably this would apply to administrative shell scripts or general software libraries based on a website, for instance, none of which is of any financial consequence to anyone or presents any risk to the University.
So, for the third time of asking can the Council please give some explanation as to why section 8(a) of the regulations is at all required? So much for the claim to creation of consistency or protection of academic freedom.
Professor S. DEAKIN:
Deputy Vice-Chancellor, the Third Joint Report on the ownership of the IPRs is to be welcomed in that it sets out a set of goals to which all of us could surely subscribe: in particular, clarity of ownership, consistency of treatment, and the freedom of academics to place their results in the public domain. The issue now is how best to achieve these objectives. The best way in my view is to leave the rules on ownership just as they are - or, to be even clearer on this point, as they were before the adoption of Grace 6 of March 2001.
As I have said at previous Discussions on this subject, the position of the University until very recently was that residual IPRs vested in the employees who created them. This policy, which was tacitly observed for most of the University's modern existence, was reaffirmed in the late 1970s in the course of discussions between the University and the CVCP. The basis for this was, explicitly, the policy of preserving freedom of expression and the right to publish within the University. The commercial consequences, in terms of encouraging entrepreneurial activity and attracting highly talented academics to Cambridge, may have been important, but they were largely incidental - a fortuitous accident.
The pressure on the University to 'commercialize' its research is the reason now given for changing our long standing policy. As others have shown, this is unlikely to bring the University any financial gain. On the contrary, it is a policy which carries major risks for the University. It will add to transaction costs and make Cambridge a less attractive place to work. It is not clear that any substantial benefits will accrue to the taxpayer or to the region around Cambridge, which are among the justifications offered for taking this step.
A major further risk in my view is that the research culture and working environment of the University may be harmed. The Third Joint Report rightly accepts that, despite its efforts to find a policy which will lead to consistency of treatment, 'some inconsistencies will arise' because the University is 'required take ownership of intellectual property rights arising from a significant portion of its research' (para. 9). This is a reference to the policy of the Research Councils.
The effect is surely that there can be, first of all, no consistency of treatment, because the science Departments, and some social science Departments, are to be treated differently from the rest. This is the effect of having different rules for patents and registrable rights on the one hand and copyright and other non-registrable rights on the other. Secondly, there can be no general right to publish. Where the University has the right to apply for a patent and chooses to assert it under draft Regulation 6 of the proposed Ordinances, is this intended to take priority over the freedom to publish in draft Regulation 4? If not, why include Regulation 6? The Report (para. 16(iii)) states that academics have a right to place 'all the results of their work in the public domain' but this is subject to any prior agreement entered into by the University (para 16(i)). The implication is that the University can and will enter into agreements under which academic staff give up the right to publish. This is the very issue over which the University refused to go along with a similar effort by the CVCP, in the 1970s, to assert a form of centralized control over IPRs.
Nor, unfortunately, will there be clarity of ownership as a result of the changes proposed in the Third Joint Report. In place of the rule which we have now (residual ownership vests in the employee) we will have varying 'default rules' according to the nature of the IPR in question and the identity of the funder. Conceivably, the date on which the employee was first employed by the University or more recently promoted will also matter. This is because it is not clearly established that a new Ordinance can alter vested contractual rights. This is not a straightforward issue and I accept that more than one view of the law is possible. However, the issue has not been clarified in the Third Joint Report as it might have been. Thus we run the risk, to put it at its lowest, of creating a two-tier employment structure, on this matter, within the University.
The right way forward is, I think, to restate the basic position which prevailed before 2001, but to do so with greater clarity than before. The University's legal rights and those of individual employees on this question should not rest on implied contract terms, nor on correspondence with the CVCP going back to the 1970s, but on a much clearer assertion than we currently have of the freedom to publish based on residual employee ownership of IPRs, which would prevail over so-called commercial considerations. As others have pointed out and as I have explained in previous Discussions, this would bring us into line with practice in many other leading research-led universities. Nor do I think that we would necessarily be acting contrary to the Research Councils' position. Their instruction to Universities to commercialize their findings, as I read it, is not absolute; and it hardly could be, given the commitment to the public dissemination of research and the preservation of academic freedom of expression which are at the essence of the idea of the university.
Professor A. HOPPER (read by Mr R. J. STIBBS):
Deputy Vice-Chancellor, as Head of the Computer Laboratory I am involved in the Cambridge Cluster, which with the University at its heart, is one of the most important high-tech clusters in the world. It has been very successful, with each participating constituency benefiting enormously. As a result the University has been able to attract first rate employees in the high-tech areas and continues to be active in the mainstream of technology.
The current proposals pick out a specific group of employees - those who happen to work in areas where patents exist - and mandate that the University controls all matters relating to patents. A level of bureaucracy and unfairness will be imposed upon the very people who we can uniquely attract. It is unlikely that the administrative unit in charge, no matter how well meaning, will be an efficient catalyst for exploitation, or even arbitration. Furthermore it is doubtful the University will make more money by doing this, yet there is a possibility that the University will actually make less money because its relationship with some potential donors will change.
The freedom to make independent individual choices is the main difference between employment by the University and industry. This is a trump card that attracts and retains some of the best people working in technological areas. If the proposed changes are approved there is a likelihood that over a period of time the character of the University will alter, and the numbers of those working in research areas close to high-tech industry will be depleted. Other intellectually sound areas will no doubt develop but we would have lost something special and unique to Cambridge.
I think the ownership of patents should continue as at present as a corollary of funding contracts and not as part of the employment contract. As an example in computer technology there are very few generic patents which can be licensed for real value. It is the defensive patents, filed by industry in the context of a product, that justify the expense and dominate. So the current policy does not result in individuals benefiting directly, it is rather that they have the authority to act that is important.
The best business plan for the University is to empower individuals, minimize administrative barriers, and develop a strategy to maximize the volume (rather than apparent quality) of commercial output. I think that the proposals will cause damage to recruitment and retention of staff in my Department and, as co-founder of some dozen companies large and small, I believe it will damage the central position of the University in the Cambridge Cluster.
Mr J. LANG (read by Mr R. J. STIBBS):
Madam deputy Vice-Chancellor, I apologize for not being present today, but I am otherwise engaged in teaching Entrepreneurship by lecturing to the High Tech Venturing Elective for the M.B.A. in the Judge Institute of Management, where I am Entrepreneur in Residence in the Centre for Entrepreneurial Learning.
I have also been appointed an Affiliated Lecturer in the Computer Laboratory, where I lecture and examine in Business Studies and in E-Commerce. I am a Bye-Fellow of Emmanuel College. I invest in Cambridge start-up companies as an Angel investor, and have started a number of companies myself. I hold patents, and am the author of The High Tech Entrepreneurs Handbook (Prentice Hall, 2001).
The proposal before the University is wrong in principle and practice, and if adopted will inhibit rather than encourage the exploitation of research. New start-ups are delicate flowers. Rather than provide a nurturing and teaching environment, this proposal will destroy them before they have a chance to bloom. If this regime had been in place 30 years ago, I certainly would have been discouraged from starting my companies.
The current proposal is wrong in principle. Although help and guidance should be available for those who wish, providing that help, whether for free or for royalty or payment, is quite different from asserting ownership of the IPR without the consent of the inventor.
The intention may be to work 'with the prior knowledge and consent of individuals', but that is not how the draft ordinance is written. This is a land grab, changing the conditions of employment. No element of consent is mentioned. The only alternative to handing the IPR to the University is to destroy most of the value by publication. The proponents say that clause 21 provides this element of consent, since the inventor or inventors can require the assignment of the IPR back to themselves, but it still requires royalties to be paid, and is at best ambiguous. I will return to the deficiencies of clause 21 later, when I discuss practicalities.
The University is a place of Learning and Research. It has no special skills in commercial exploitation of research, and recent examples show that it is particularly bad at it. This proposal may cost the University millions and require many more administrators. Most University Technology Transfer offices lose money. The nature of the beast means it must be so. Simple arithmetic shows they cannot win. Taking out patents and arranging exploitation costs a lot of money. Very few patents repay their cost in royalties. The TTO may receive hundreds of potentially patentable ideas in a year. They cannot progress them all. At best they may progress a few, and they would have miraculous powers if they can predict the future well enough to tell which few from the many will succeed. It's a long term big bet with the University's money. Should the University be gambling its money like this? Horses give better odds.
The original 'clean hands' policy was dictated in part by issues of liability. These issues have not gone away. Cambridge Enterprise is placed in a position where conflicts of interest are inevitable, for example where they are presented with an invention that will subvert an existing revenue earning patent.
The proposed policy seems to be a misunderstanding as to role of IPR, perhaps because of the different nature of IPR in different disciplines. In drug discovery, where the market is established but the technical and regulatory challenges great, IPR is crucial. IPR is what is traded. However in high-tech, and many other fields, IPR has a different role, mainly defensive, with speed to market being more important. This policy appears to be driven exclusively by the drug discovery model, to the detriment of everything else.
This proposal will adversely affect endowment. Successful entrepreneurs are unlikely to endow the University if it has already had its hand in their tills. This will affect the Colleges, since they do not share in the income.
The draft proposal is wrong in practice. The mechanism proposed is overkill and a lighter regime will achieve the goal of encouraging exploitation, and in turn University income.
Although clause 21 requires assignment of the IPR back to the inventor or inventors should they so wish in return for a royalty share, it is worded poorly.
Can the inventors give notice that they require assignment at the time they disclose the invention to the University, before the Cambridge Enterprise has expended funds on its protection? I think they can. That's consistent with clauses 18 and 21.
Can clause 21 be invoked at any time in the life of the patent? There is nothing in the draft that says it cannot provided the inventors indemnify the university for monies spent developing the patent, and honour any agreements entered into with third parties,. However there should be a test of reasonableness in the repayment required, or the funds that Cambridge Enterprise might expend on behalf of the inventors.
It may be a good way to keep Cambridge Enterprise focused, and monitored if the inventor can take the IPR back if they don't like what Cambridge Enterprise is doing. It implies that the patent cannot be licensed, agreements entered into about it or expenditure incurred without the consent of the inventors, which will encourages a spirit of co-operation.
This sets up a regime where the IPR is owned initially by the University, but can, on request at any time be assigned to the inventors. There needs to be some mechanism to ensure this is done efficiently and in a timely manner after such a request. I would prefer the default case to be the other way round, as in the past, that is initial ownership should instead be the inventors, who may assign it to the University if they so choose.
Does this clause apply to IPR that has been gifted to the University, for example by a grant giving body or Research Council? I see no reason why the draft policy should not apply to this IPR as well as that generated by directly funded employees.
What is meant by 'any agreement governing ownership or exploitation of the subject-matter'? Does this refer only to a specific grant condition for example industrial sponsored research, made with the consent of the receiver of the grant? Or does it refer to where the University or Department has pre-sold its IPR wholesale, as in some departments or other universities, with all future IPR generated in the Department or University for a period pre-sold in bulk? Does this prior sale then prohibit the assignment back to the inventor or inventors? I hope not. The more cynical and Machiavellian might think that this is the key to the proposed policy and that there is a hidden agenda to create Cambridge Enterprise as a separate entity, and then sell it off stuffed with the rights to future University IPR, as has happened at other places, mortgaging the University's future. Jam today, but poor fare tomorrow. The Council should explicitly state that this cannot happen or if it does inventors can still reclaim their IPR.
It is unclear what the position is where the inventors decide to form a company to exploit the invention. For a proposal intended to add clarity, it does the opposite. Why is a company founded by the inventors treated differently from any third party company? The value of a new company may be primarily the value of the invention. Does this mean the University tries to take a large piece of the company's equity, as has happened in some cases recently? If so the company is dead before it starts.
IPR ownership remains confused. Who owns, who controls, who decides? As I read it, RSD decides on ownership, Cambridge Enterprise make the initial decisions whether to patent or otherwise exploit, CUTS has actual ownership but not control, and Cambridge Enterprise executes and markets the IPR. It's a real muddle. How will this work? Can this work? Who will a company have to consult and what signatures will it need to sub-license or assign its IPR? Is it CUTS Ltd, as the owners, Cambridge Enterprise as the administrators, the Vice-Chancellor, or what? What delay will be involved?
The Technology Appeal Tribunal is not required to have any commercial or even technical competence, which it will need.
How will the royalty income be policed, audited, or monitored, and at what (and whose) cost? Who chases payment? Whose empire is enhanced and enlarged by all the administration needed by this proposal?
In many cases it is impossibly hard to determine the attributable income. For example if a company exploits a patent along with many others in their product, what is the income attributable to this patent? Suppose that the company is loss-making initially and is then acquired, enriching the founders and investors, but before it makes a profit, what then is the royalty income? None I think. The acquirer presumably takes over the royalty agreement and has to account and pay royalty, if any, to the University, which may raise further enforceability issues.
The royalty split proposed is usurious, and will severely discourage exploitation. It does not include any income for the inventor's College should they be a member of a College. There is an element of double dipping, in that the split is proposed after recovery of costs, and so there is little justification for higher royalty payments where Cambridge Enterprise is involved in the exploitation.
Many studies show the less university control and the lower the royalty the more technology transfer there is, and thus the university income higher. A flat 5% might be reasonable. Under clause 21 ownership is voluntary, and to some extent so is payment - for example the inventors can take an assignment of the IPR, then license it at zero income, for example to a standards body under RAND-Z terms, thus circumventing the University payment. Is this deliberate?
The original regime was based on the belief if the University treated its people well, they in turn would treat it well. There have been many examples of inventors repaying the University some of the profits of their inventions or enterprise in the form of a generous endowment. This mutual trust seems to have been lost, and this proposal does nothing to help regain it. I would prefer to see a suggested rather than compulsory royalty, with payment as a charitable endowment. This would need only a lightweight administration, since no monitoring or licence agreements would be required, and charitable donations are more tax efficient. Some years ago I helped set up the local industry fund to support the Computer Laboratory, with success. I believe the University would receive a greater net income including endowments, and have less administrative expenditure, from a voluntary rather than a compulsory scheme.
Finally if the purpose of this proposal is to assist in the exploitation of ideas generated in the University, no mention is made of the provision of help and guidance, nor of entrepreneurial education, nor of the provision of mentoring, advisory or support services. No duty is placed on University Departments, RSD, CUTS, or Cambridge Enterprise to offer any, yet these are major factors in developing an entrepreneurial culture. Indeed, Cambridge Enterprise no longer has any teaching or informative function. The teaching function in the original Cambridge Entrepreneurial Centre, one of the fore-runners of Cambridge Enterprise, is now part of the Judge Institute, which further suggests Cambridge Enterprise is being groomed as a sell off vehicle.
I urge rejection of this proposal in its current form.
Mr R. J. STIBBS:
Deputy Vice-Chancellor, this corpse just won't lie down. Let us this time ensure that it's nailed to the floor. The University has on two previous occasions, in October 2002 (http://www.admin.cam.ac.uk/reporter/2002-03/weekly/5901/16.html) and May 2004 (http://www.admin.cam.ac.uk/reporter/2003-04/weekly/5964/20.html) heard compelling evidence that proposals with the same underlying flaws as these would be likely to have precisely the opposite effects to those intended. The intended effects are summarized excellently in Cambridge Enterprise's mission statement (http://www.enterprise.cam.ac.uk/about/about.html): 'Cambridge Enterprise exists to help University of Cambridge inventors, innovators, and entrepreneurs make their ideas and concepts more commercially successful for the benefit of society, the UK economy, the inventors, and the University.' With that we can all agree, but those of us that have been involved in technology transfer in Cambridge (for 35 years in my case) will continue to argue that a light-touch regime has served us well and that these bureaucratic and ambiguous proposals must be rejected.
I would also like to comment briefly on two earlier statements. The Pro-Vice-Chancellor, Professor Leslie, mentioned that he thought the terms of the Report are more generous than any other university. As a matter of fact, Carnegie Mellon University, if it has given help in a patent, gives 85% of the money to the inventor, and even York University gives 80%, compared with our University's suggestion of 33%.
Turning to Professor Boyle's comment about public duty. I think the University cannot have it both ways: the University has declared itself not to be a public sector body for EU puchasing purposes. We have only about 30% of our turnover from direct Government sources. We are still therefore a community of scholars, and not an organization directly under government control.
Professor M. ASHBURNER (read by Professor A. C. MINSON):
Deputy Vice-Chancellor, the history of the University's attempts to change its policy with respect to intellectual property rights is not a happy one. In July 2002 we were presented with a Joint Report from the General Board and Council which was so unacceptable that the Central Bodies retreated with their tails between their collective legs. It had the dramatic effect of being midwife to a pressure group, the Campaign for Cambridge Freedoms (http://www.cl.cam.ac.uk/~rja14/ccf.html), through which many of us learned more about the issue of intellectual property rights than we ever really wanted to know. The Research Policy Committee's Working Group then published a Discussion Document, which we duly discussed in October 2003. Then followed the Second Joint Report, which we discussed just over a year ago. We now have the Third (and, I hope, the last) Joint Report.
At the Discussion in October 2003 (Reporter, 20 October 2003, pp. 129-30), I welcomed the clear statement that University staff were to be 'free to place [their] research results in the public domain.' I also welcomed the fact that the Group recognized the policy so clearly set out in the late Professor Roger Needham's Report for the Royal Society, of our right to make databases publicly available. Finally, I welcomed the clear indication that the University would not constrain our right to release software under an Open Source Licence. I am delighted to see these recommendations enshrined in the Draft Ordinance (Paragraph 6 is very clear).
I am also very pleased that the Central Bodies have consulted very much more broadly, and sympathetically, than before. Many of the concerns I had with the 2003 Discussion Document and with the 2004 Report have been carefully considered, and have been met. For example, the position of visitors to the University, who may spend long periods working in our laboratories and Departments, is now much clearer, and more acceptable, than it was in Paragraph 10 of the 2004 Draft (now Paragraph 13).
It is clearly never going to be possible to frame an Ordinance that will please every last member of the University. Like others, I retain a nagging doubt that this policy will achieve its major aims: the best exploitation of research conducted in the University for the public good (the financial benefit to the University being but a sub-text). I could well imagine that under the proposed policy only the dregs of invention are offered to Cambridge Enterprise. Be that as it may, the important point is that in five, or ten, years time the effects of this policy should be quantifiable. 'Time will tell', as Francis Crick used to stamp scientific papers that he never quite believed. I hope that the Central Bodies will now commit their successors to a thorough audit, of the costs (both social and financial) and benefits (both social and financial) to both the University and UK plc of this change in policy.
Those of us who so strongly opposed the First Joint Report can have the satisfaction that we have a much better, and I hope more acceptable, document in front of us today. It is now a document which I can support.
Dr S. J. COWLEY:
Deputy Vice-Chancellor, a previous speaker referred to the need for openness and disclosure: I absolutely agree. The need for members of the University to abide, for example by the Nolan principles of public life, would I hope be self evident. As Dr Clark has already noted, there exists a Register of Interests for members of the Council, it should therefore be possible to discover whether members of the Council have or are likely to have a conflict of interest.
On a related point, in two weeks' time we will discuss the Pay and Grading Report. I would hope that all those, whether academic or non-academic, who contributed to this Report will declare their interests, especially if they either know or suspect they will benefit disproportionately from the proposals.
Finally, Mr Dowling earlier suggested, with respect to the Cambridge phenomenon, that it makes no sense to kill the goose that lays a golden egg: I disagree. The cost of housing for academics is a well-known problem; I note that the Council at last seem to have a solution - kill the Cambridge phenomenon.
Mr N. M. MACLAREN (read by Dr D. R. DE LACEY):
Deputy Vice-Chancellor, I am saddened by this Report. There is no need for the University to shoot itself in the foot, because there really is more room for compromise than may appear. But the prequisite for compromise is to understand the position of other parties.
I am sorry to be negative, but part of the reason for being so is the indecent haste with which this Discussion has been called. A fortnight between the Report and Discussion for a topic that has twice led to Discussions running into a second week is unreasonable, let alone during the examination period. There have been some changes, and many of those are good, but I regret that I do not have time to refer to them, so I shall address only two main points. That does not mean that I do not think this Report is an improvement, because it is, considerably so in places.
The Report starts off by patting itself on the back, saying that it is a 'clear and comprehensive framework'. Really? The previous Discussion had many speakers describing the serious problem of distinguishing 'research' from 'subject matter created for the administrative and managerial purposes of the University', and a good example of this is the computer program Exim. This Report fails to address that serious ambiguity.
Item 10 of the Report says that the Council and General Board have no desire to place restrictions on academics publishing their work, nor on the activities they engage in outside the University. Well, maybe, but that is not what the Draft Ordinance says. Item 8 of that is unchanged from the previous draft, despite the numerous and detailed objections in previous Discussions. The ambiguities and the lack of any right to publish in section 8, and the wording in section 9, give a Head of Department considerable powers of censorship, with no mechanism for appeal. Item 9 contains a welcome change for contributing to existing Open Source arrangements, but does not address new contributions, such as Exim.
But a far worse problem is the immense contributions of many people in the form of guidelines, working papers, and advice. In the Computing Service alone, over a hundred people have written thousands of such documents, which have effectively been put into the public domain, probably totalling over a million lines. Many other academic-related staff and junior teaching and research staff in most Departments have done the same. Most of them have been in the grey area between research from administrative and managerial material, but a fair amount has been explicitly advice to students. It is both unreasonable and impractical to give a Head of Department absolute control over whether such documents should be published.
When Professor Sir Frederick Bloggs, FRS, writes guidelines for students on the ethical use of medical records, will he be required to seek permission from his Head of Department before releasing them for use by another university (as required by item 9)? Of course not. But will the same be true for Mr Joseph Blow, a Research Associate, who writes similar guidelines? Or a Computer Officer who writes guidelines for students on how to keep such data secure, or on how to program a parallel computer effectively?
There are many other examples of ambiguities. Item 28 is as bad. If a company buys the rights to some sponsored research, which staff are allowed to refuse to be involved? If a member of staff is not given that option, is he going to be required to assign intellectual property that he would otherwise own? What mechanisms for appeal or requests to be assigned to other work will there be? This aspect has caused some incredibly acrimonious court cases where companies have introduced such rules without adequate consideration of the position of all of the staff involved.
These problems will be particularly serious for staff like Computer Officers and senior technicians, where the Head of Department has absolute powers over the member of staff for discretionary payments and leave, and near-absolute for most other aspects - I regret to say that there will be cases of intimidation. No, this is not a 'clear and comprehensive framework'. Depending on the interpretation of its ambiguities, it could be a discriminatory and deleterious change in the conditions of employment for some staff.
The second point is one that I mentioned in the previous Discussion, and has not been addressed at all. The appeal mechanism is a flagrant breach of natural justice and, as such, will quite possibly be invalidated if a dispute gets to court. The Council and the Registrary select the adjudicators, with some minor input from the Senior Tutors' Committee, and the member of staff gets no say. That is unacceptable for a matter that will normally be a dispute between the member of staff and the management of the University.
Dr S. MAHAJAN (read by Dr D. R. DE LACEY):
Deputy Vice-Chancellor, in a corporation, power flows from top to bottom. The IPR proposals move this university towards that model, erode academic freedom, and harm the public.
In 1998 at the University of California, Berkeley, the Plant and Microbial Biology department cut a five-year, $25 million deal with the biotechnology and pharmaceuticals firm Novartis (now Syngenta). In exchange:
... Berkeley grants Novartis first right to negotiate licenses on roughly a third of the department's discoveries - including the results of research funded by state and federal sources as well as by Novartis. It also grants the company unprecedented representation - two of five seats - on the department's research committee, which determines how the money is spent. (Eyal Press and Jennifer Washburn, 'The Kept University', Atlantic Monthly, March 2000: http://www.mindfully.org/GE/The-Kept-UniversityMar00.htm)
One Berkeley lecturer, Ignacio Chapela, criticized the links with Novartis. He also discovered that DNA from genetically modified corn had contaminated wild strains. Chapela's Nature paper led to an agribusiness character-assassination campaign against him. When he came up for tenure, his department voted in favour 32 to 1; his chair and dean also recommended tenure. The university's budget committee, however, voted against tenure and the Chancellor agreed, overturning the department and dean. Because Chapela followed his curiosity and opened his mouth during his probationary period, he lost his job (George Monbiot, 'The fake persuaders', Guardian, 14 May 2002: http://politics.guardian.co.uk/green/comment/0,9236,715160,00.html).
Here is Berkeley's patent policy:
An agreement to assign inventions and patents to the University, except those resulting from permissible consulting activities without use of University facilities, shall be mandatory for all employees ... (University of California Patent Policy, effective 1 October 1997, Section II.A, http://otl.berkeley.edu/inventor/ucpatent.php)
Berkeley could not have negotiated the Novartis deal without grabbing the faculty's patent rights. If we approve the IPR proposals, we encourage such deals and thereby limit our academic freedom.
Academic freedom creates a space free of political and market pressures and increases the pool of knowledge available for public use. As the physical commons was once enclosed by large landowners with the collusion of Parliament, so the intellectual commons suffers today. Copyright and patent laws become ever more draconian, a notorious example being the US Digital Millennium Copyright Act that gives huge power to the media corporations who wrote the law. The powers include suppressing unwelcome research: Legal threats from the media corporations led Professor Edward Felton of Princeton to withdraw a paper from a conference on encryption technologies. The West, through the World Trade Organization and its TRIPS agreement, is forcing such laws upon the world. The prospects are dim for remedy via Parliament. In small issues like fox hunting, Parliament will throw a bone to public opinion; but on large issues like subverting the jury or invading Iraq, it follows the corporations and centralized executive power.
Therefore we, the community of scholars, must ourselves protect and cultivate the intellectual commons. A student or staff member may develop an Aids treatment and wish to contribute it to a patent pool; the pool would license it royalty-free to Third World countries and deny licences to any company not willing to do the same with its Aids patents. Through similar strategies in copyright, free software has developed into a vibrant commons. But the University, if it receives money from pharmaceutical corporations, is unlikely to welcome such a patent licence. Under the IPR proposals, the University would own the patent and could block such licensing schemes or even pre-assign rights to a Novartis or Monsanto.
Without a rich commons from which to draw, even the commercial sector suffers. In a twist on the anti-apartheid sanctions, the Clinton administration threatened a trade embargo on South Africa should it import cheap Aids drugs; it also pressured India to adopt the draconian US patent and copyright laws. The administration was no friend of the commons. Yet it funded the public project to sequence the human genome, because a public, royalty-free pool of genomic knowledge is an antidote to the overbroad reach of current copyright and patent laws and provides a base for further research, which in the long term benefits corporations.
The simple solution here is to declare that, except where prevented by law or by an explicit provision in a funding contract, all intellectual property belongs to its creators. Then we can promote what copyright scholar Lawrence Lessig calls a free culture, one where we extend the commons and trust our fellow scholars to use discoveries and knowledge for social good.
Dr D. R. DE LACEY:
Deputy Vice-Chancellor, here we have a clear and comprehensive framework, with as much consistency as possible. At least, so we are told by the authors of the Report, who promptly descend into a confusing maze of ambiguities with words like 'should' and 'may' and a goodly sprinkling of passives. But my concern is not just with the style. The fact that I have been asked to read the remarks of others is indicative of the fact that this is about the worst time in the whole academic year to undertake an assessment of this vital subject, an assessment whose importance is underlined by the fact that even the Council fails to be of a common mind over this Report. I shall limit myself to just four of many concerns.
1. Financial Justification. 'The motivation for the policy is not primarily financial' (14); returns are expected to be 'positive but ... modest' (15). But simply to compensate for the huge costs of the TTO they would have to be pretty large. Would the Council please tell us what the actual net income is, if we discount IPR income not directly negotiated by the TTO, such as that from CamPath?
2. Consistency. I still find it remarkable that the work done by Professor Hawking - and Professor Boyle - is completely exempt (since the income is via copyright) while his equally hard-working colleagues are not free as he is in the exploitation of their work. Indeed, there are enormous inconsistencies between theoreticians and practical scientists, as also between scientists and those working in the humanities, which the Report fails entirely to grasp.
3. Student IPR. Students are our paying customers, yet students funded under an RG22 agreement - or even using resources provided under such an agreement (Annex E) - will discover that all their IP belongs to the University, in contrast to a lab partner funded from a different source. If this is 'as much consistency as possible' then we should simply label our student policy as inherently inconsistent and unjust.
4. Conflict Resolution. In many cases conflict will be between the University and the creator. It is inherently unjust that the arbitrator should be entirely University appointed; a point made at the last Discussion and as far as I can see not at all addressed in this Report.
Deputy Vice-Chancellor, a few significant changes have been made since the previous Report. But many more are needed before this policy can be regarded as appropriate for this University.