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CAUT Bulletin Archives
1996-2016

May 2003

Stakes High in Battle for Intellectual Property Rights

Ikechi Mgbeoji

Who Owns Academic Work? Battling for Control of Intellectual Propert

Corynne McSherry. Cambridge, Massachusetts & London: Harvard University Press, 2001; 275 pp; hardcover $29.95 US.
Barely 15 years after some perceptive scholars sounded the alarm on the challenges posed by corporate participation in and emerging control of research in academic institutions, Corynne McSherry's book examines how the predicted propertization of academic work is shaking up the professoriate and challenging contemporary norms of intellectual property.

Previously construed and accepted as a public resource, academic work - and by logical extension - academic freedom, has in the past decade been co-opted into the domain of private property through the instrumentality of intellectual property regimes. The question of who owns academic work in the modern era is not merely legal; it traverses the gamut of politics, economics and social values. In this complex mix, the stakes are high, indeed, exceedingly high.

As McSherry hints, more worrisome in the trend towards private ownership of academic work in the universities and similar institutions is the litigious struggle by some academics and their corporate sponsors to "hoard" knowledge which would otherwise be in the public domain, and fence such knowledge with an array of intellectual property rights ready for sale only to those with money to buy.

While this phenomenon may sometimes be embraced in some quarters as an admirable template for "university-industrial cooperation," the paradox is that in an information age such as ours, excessive propertization of academic work is akin to a post-modern feudalistic indulgence in avaricious profiteering. Such a lamentable situation marks a disturbing constriction of the public domain.

The main strength in McSherry's work is that it draws from legal, historical and qualitative research. Structurally, the book is divided into five chapters with a common theme. In particular, the author raises and seeks to answer the question of whether in fact there is a "crisis" in the emerging convergence between corporate sponsorship of university research and propertization of information derived from such collaboration.

Moving beyond the traditional rhetoric of ascribing "crisis" to every mundane challenge in human history, McSherry makes a strong argument that the convergence of the conflicting concepts marks a departure from the banality usually associated with exaggerated or premature claims of the emergence of a "conflict." In her view, there is a real crisis. McSherry's thesis is anchored on a conceptual dichotomy between the essence of the university on the one hand and intellectual property on the other.

In the face of chronic reduced government funding of university research, the challenge for university administrators is to find a balanced position between ceding academic independence and integrity to corporate-cum-intellectual property control of university research and the unthinkable choice of underfunded, dysfunctional and empty laboratories and classrooms. Both extremes are undesirable and the median is a tight rope to walk.

Absent responsible controls on the propertization of academic work by expansive intellectual property rights promoted by corporate sponsors of university research, the norm of free exchange of information which has underpinned the university system for nearly two centuries is under mortal threat. But the question remains: in the face of reduced government funding, what is the way out from this dilemma?

It would seem that in order to appreciate the paradox in McSherry's thesis, one must have regard for the nature of what constitutes "public domain" and its role in the legitimation and growth of intellectual property. Again, the concept of public domain is subject to scholarly and philosophical debate, if not controversy. Accordingly, claims that the public domain is shrinking may depend on the perspective of the viewer and of course, the presumed understanding of the relationship between the public domain and intellectually property rights.

In tackling this complex issue, McSherry adopts a skillful historical deconstruction of the size of the public domain and a painstaking empirical analysis of the liberalization of various intellectual property regimes, to convince skeptics that the public domain is in fact, shrinking. Needless to say, the increasing controversy, indeed, illegitimacy surrounding certain new forms of intellectual property, supports the perception of a shrinking public domain.

The logical consequence of this phenomenon is that controversies besetting modern intellectual property practices implicated in the propertization of academic work will invariably impact, as indeed they have done in some cases, on the credibility, independence and robustness of the university system. As McSherry argues, the implication of digitalized and commodified forms of knowledge protected by restrictive intellectual property rights is a trend which modern universities are ill-equipped to handle.

Notwithstanding its excellent analysis, the book leaves the reader asking the inescapable question: what is the way out from the current crisis? This is not a fatal flaw but suffice it to note that the book leaves the question unasked and unanswered. However, McSherry has raised pertinent questions which hitherto were either wished away, ignored or hardly thought of and for doing so, she deserves our commendation.

Ikechi Mgbeoji is a law professor at the University of British Columbia and an intellectual law expert.