This book is an account of and a meditation on a legal squabble that broke out in 1993 and involved three people who worked in a biochemistry laboratory at the University of California, San Diego. The three were the scientist in charge, a postdoctoral student, Huguette Pelletier, to whom he had delegated a project, and a young woman who had married the manager of a company that, unbeknown to the others, was engaged with the same scientific problem as the people in the lab (to which she held a door key). The dispute began when the company decided to publish its results and "scoop" the academic researcher. The postdoctoral student sued the company for "misappropriation of trade secrets" and in 2000, eventually won the case, with token damages.
This book provides not a legal but a cultural analysis of the social production of academic knowledge. By following the Pelletier case, and earlier instances of legal disputes over ownership of academic work, it traverses the productive process of university research, analysing the bundle of rights that the academy asserts over its intangible assets. For Pelletier to make her case against the company, she had to prove to a succession of courts that her data were not "facts" but the product of "intellectual inspiration". To protect the investment of her years of training and research (which had been prejudiced by her not being able to be "first" in publication), she had to prove that the project was "hers", ie given to her by her mentor, the research head of the laboratory. All the experimental procedures, charts, data and so on had to be reconfigured for the court as proprietary. Scientific work had to be shown to be a trade, the practice of which had to involve confidentiality, verbal contract - everything that goes with commercial research. She had to demonstrate that the propertisation of scientific knowledge was consistent with traditional academic practice.
Corynne McSherry has built the Pelletier case into a vast prism through which to examine the changing nature of the university and its product. She forces us to look at the data stream of modern society that passes through a series of institutions, all of which attempt to enforce conflicting ownership claims. When a professor delivers a lecture to students, is he or she making a "gift" to the world in general? Or to the community of students concerned? Or does the professor retain the ownership of everything in the lecture? Does the university as a legal entity "own" its research products, given that it does not commission them but leaves decisions about projects entirely to the professional judgement of its employees? In what sense do the funding institutions hold proprietary rights in the data stream to which their resources give rise?
When a professor passes a project to a researcher, what property does that researcher come to possess? Pelletier argued that she retained three property interests in her research: a reputational one; an interest in the demonstrable integrity of her work; and an interest in the actual data necessary to support her creative vision.
McSherry makes much of what she calls "boundary objects", conceptions that lie between ambiguities - for example, the line between fact and artefact that helps to bolster the special academic rights at stake in this case. Copyright normally protects expression rather than facts. Pelletier had to argue that facts revealed by research were not pre-existing things awaiting discovery, but products, the evidences of individual genius. Intellectual property (IP) law protects cognitive rights by labelling academicians as the owners of knowledge rather than the detached knowledge workers of tradition, the disinterested "usefully useless" denizens of the academy. The rights of the author originated analogously with the demise of the Stationers' Company three centuries ago, when the name of the author, emblazoned on the front page, helped to guarantee and secure the investment of the publisher.
On the other hand, academic freedom, which has never existed in totally pure form, does not appear to offer the modern researcher any comparable protection. IP law offers a way of protecting one's credit, but discourses of rights can offer only a crude delineation of the boundaries between the frontiers concerned: inventorship/authorship, gift/market, property/commons. McSherry puts it neatly: "Intellectual property is not a neutral category but a lens shaped by a set of assumptions about the nature of cultural production that brings particular aspects of cultural work into focus while blurring or obscuring other facets."
But if you conflate property and academy, you distort both, pedagogy is made to look like a one-way affair rather than a multi-layered collaborative exercise, the university turns into corporation and professors into actors. The hierarchies of the academy are merged into the inequalities of the market. Academic freedom turns into an individual's proprietary interest rather than the protected gifting of knowledge to society. McSherry is far from proclaiming that academic freedom has simply been strangled by IP law, for perhaps the fact/ expression distinction requires re-thinking at the expense of limiting IP. To find a new version of public domain within the acad-emy involves reconsidering the limits of IP law and thinking through academic freedom once again. Redress has been sought for certain forms of damage to academic freedom by looking only into one particular branch of the law, and the courts offer protection only by redefining the work of knowledge creation into limiting categories. Other perhaps more beneficial discussions need to be pursued. This is a highly stimulating work.
Anthony Smith is president, Magdalen College, Oxford.
Who Owns Academic Work?: Battling for Control of Intellectual Property
Author - Corynne McSherry
ISBN - 0 674 00629 1
Publisher - Harvard University Press
Price - £20.50
Pages - 5