In The Branding of the American Mind, law scholar Jacob Rooksby sets himself both a specific academic challenge – “to present a lawyerly assessment of how colleges and universities choose to engage with intellectual property, using the legal protections available to them” – and a much broader one, namely to explore the role of higher education in relation to what is generally called “the public good”. He meets both challenges well.
The key conflict he addresses is between the public good and private rights. How can a university serve the public good while keeping an iron-fisted grip on the intellectual products of its academics and control of its trademarks and “brand”? Right now, there is only one winner in this conflict, and Rooksby does not mince his words: “this sector as a whole has strayed too far in the direction of championing intellectual property.”
This is true not only in the fields of science – from pharmaceutics to genetics and digital technology, as Rooksby illustrates well – but for all disciplines in pretty much every institution, not just in the US but almost everywhere, and particularly in the UK and Europe. Anyone who has published an article in an academic journal will have struggled with the current, awkward and flawed approach to open access – even though, from the perspective of serving the public good, all academic work should be accessible to all.
Rooksby’s analysis is eminently readable and erudite, and although this is a detailed and in places very specialised piece of work, much is highly relevant to anyone working in the sector. Particular highlights are his consideration of “academic capitalism”, the way that universities exploit their trademarks and use intellectual property law to control and enforce their brand, and the complex relationships between universities and industry. Although the US has gone further down all these paths than the UK (American universities’ athletics programmes in particular are very different), the two academies are nevertheless headed in the same, conflict-laden direction. As Rooksby puts it, the higher education sector’s “behaviours occasionally seem schizophrenic, as the dual motives of self-preservation and self-aggrandizement intermix”.
The situation is already out of hand, as his examples show very well. Trademarking slogans is just one increasingly common area of absurdity: “what educational or societal purpose is served when one university-affiliated hospital has the primary right to use WORKING TOWARD A WORLD WITHOUT CANCER as a promotional slogan?”
Rooksby’s attempts to bring back balance and sanity to a situation that seems almost out of control are detailed and well argued, and if a proper debate were to happen his contribution could play a serious part. That, however, is the only weakness of this book, if perhaps an inevitable one. It is hard to see the immense vested interests and mass of law that Rooksby has described so eloquently being made to change direction. And yet, as he also makes clear, they surely must, because if the higher education sector is to mean anything, it has to remember that its ultimate function is indeed to serve the public good.
Paul Bernal is lecturer in IT, IP and media law, University of East Anglia Law School, and author of Internet Privacy Rights: Rights to Protect Autonomy (2014).
The Branding of the American Mind: How Universities Capture, Manage, and Monetize Intellectual Property and Why It Matters
By Jacob H. Rooksby
Johns Hopkins University Press
ISBN 9781421420806 and 0813 (e-book)
Published 10 February 2017