Cambridge IP - Rebuttal and Frequently Asked Questions

IP Ballot - Vote for the Amendments!

Ross Anderson

See www.freecambridge.org - website of the Campaign for Cambridge Freedoms.

Most of the flysheets supporting the Council proposal reiterate two misconceptions:

• It's claimed that "the amendments will undermine the new technology appeal tribunal". This is simply not the case: the amendments in fact extend the tribunal's remit from future disputes to existing ones too. Whichever version prevails in the vote, university staff and students will have a neutral and non-departmental arbitration and appeal process for disputes about whose names should go on a paper or a patent. It is ludicrous to claim, as many of the pro-Council flysheets do, that the tribunal cannot enforce decisions on patents unless the university owns all patents. First, a tribunal finding that a patent filed in the names of Able and Baker should have had Cousins' name on too would invalidate the patent in many jurisdictions; and second, the tribunal has to arbitrate matters such as copyright where the rights in dispute are owned by academics directly.
• Many of the pro-Council flysheets argue that the Council version alone will narrow the gap between the rights enjoyed by tenured staff and those enjoyed by contract staff. Again, this is simply not true. Under the Council proposals, contract staff will in general move from owning only the copyright in "normal academic forms of publication" to owning nothing; they will need to get permission even to publish a paper. The Council was asked (p 22) to clarify who would give this permission, but declined to answer (p 24). The amendments, on the other hand, will ensure that copyrights claimed from contract staff by the University as a result of carelessly-drafted funding conditions are automatically assigned back to their creators (regulation 40).

There are a number of other misconceptions in the pro-Council flysheets, some of which illuminate the thinking behind the proposals.

• The arts & humanities flysheet (p 13) notes that academic ownership of copyright is essential for freedom and then claims that the Council proposal guarantees academic freedom by providing the right to publish. However, the Council response (p 24) admits that in their regulations the right to publish (Reg 4) is overridden by Reg 2. Many contract staff end up worse off then before and their freedom is undermined. The amendments on the otherhand make contract staff better off, and tenured staff no worse off.
• The Council flysheet argues that Regents act as charity trustees and must therefore vote in the interests of the University rather than selfishly. This is illuminating: the mindset it reveals is that the beneficiary of the charity is the institution itself as a corporate entity. I would have thought that the beneficiary of the charity is the human race, whom we benefit by the manufacture and distribution of knowledge.
• The Council flysheet also argues that the University must not give away its property unless for good and sufficient reason. The proposal drawn from this argument is that it should give away to their creators the intellectual property rights in history books, popular science books and economics textbooks (for example) but not patents. The link between the two propositions is not explained and there is no defence offered for the resulting inequity between technology and the humanities.
• The Board of Graduate Studies argues for the Council proposal on the grounds that without it a student might secretly patent work done in collaboration with a supervisor, or vice versa. This shows deep ignorance of law and practice. Such an act would be a crime, and a smart perpetrator would file under a false name. If he filed under his own name, then he would be liable for arrest and imprisonment once the patent was published and the crime came to light. Neither the Council proposal nor the amendment can do anything for law enforcement - but under the amended version, the victim of such a crime would have a stronger incentive to detect it and complain.
• The flysheet from the Professors of Law claims that the Council policy "is overall more favourable to individual inventors and creators than in comparable British Universities". It is certainly the case that under the proposals, legal scholars and other humanities dons would get to keep all the royalties from their textbooks and private practice while the University would be operating, in essence, a different policy with regard to technologists who are in a position to benefit from patenting their IP. The question of the 'equity' of the IP proposals needs to be seen in this light. The Council's proposed policy on patents, the flysheet suggests, "forms a platform for a raft of advantages to the inventor secured by other provisions of the grace"; it goes on to talk about the possibility of one inventor committing fraud by filing himself for work done jointly. There is an answer to this point which is referred to in the discussion of the Board of Graduate Studies' flysheet (see above).
• The Law Professors' flysheet does however usefully pick up on what's become the central issue in the debate - the power of the University to bind staff to IP agreements without our consent. The lawyers ask (p 21) what has to happen in order for an external funding agreement to affect a staff member if the amendments pass. The answer is simple: the staff member has to sign something, and must therefore be a party to the agreement. Under the Council proposal supported by the lawyers, it is by no means clear the consent of the member of academic staff concerned is needed in order for their IP to be the subject of an agreement between the University and a third party. Conceivably then the University can sign away rights. This is not a hypothetical threat - see the Mike Clark case.
• The biological and clinical sciences flysheet claims that the amendments would lead to exclusion of self-funded research students from working informally with teams. However, if you have a group that generates IP that you seek to protect, you cannot work informally with people with whom you have no agreement. You must get visitors to your lab to sign a suitable agreement. The argument here appears to be that clause 14 allows staff to claim the IP of self-funded students if it interacts with their own. There hasn't been a problem up till now with informally-generated IP: there has been a problem, however, with disputes between senior and junior members of staff. We believe that students and staff should have equality of arms in such disputes. In a complex and imperfect world, signed agreements backed up by a University arbitration service give the least bad of the possible alternatives.
• Many of the flysheets seek to imply that we are simply being selfish by trying to avoid sharing side-income with the University. Of the four Council members backing the amendments, three of us have no patent royalty income and thus nothing at stake financially while the fourth (Mike Clark) could gain from the increase in patent royalties paid to inventors proposed by the Council (and not amended by us). Regents might care to think about Mike's generosity in giving the University the Campath patent, which fell outside even the old policy and which generates over a million a year for the University.
• One of the things we sought to do with the amendments was to free up the IP wrongly claimed by the 2001 policy from contract staff. The Council's response by Professor Badger (p 24) does this, although weakly, by saying that the Council proposals will be applied to IP going back to 2001. On whose authority? According to policy, a grace takes effect on the date the grace is approved. Is Council asking the Regent House to pass Ordnance X on a promise that they will then pursue a policy of Y?
• Professor Badger also accuses us of a "misconception that the University can introduce a policy that unilaterally overrides contracts". This is rather strong as the issue was discussed in Council in October, at which meeting the PVC Research admitted that we had taken care in our drafting to avoid placing the University in breach of contract. We challenge Professor Badger to explain how any amendment incites breach of contract. Our amendments will, of course, affect the kind of contracts into which the University can enter in the future: we will only be able to be bound with our consent.

Here now are answers to some of the questions that have been most frquently asked during earlier campaigning. We'll be adding to these over the next few days.

1. What is the IP dispute really about?

It's about whether Cambridge University should continue to be a self-governing community of scholars that grows organically - as it has been with such success for 800 years - or whether it should become a more corporate entity, run by professional managers who try to pursue strategic goals. Even more bluntly: should the central administration be our servants or our masters?

2. That sounds all very well - but I'm a humanities lecturer, so all I care about is my copyright. That's safe, isn't it, so why should I support you?

Here's four good reasons. First, the reason your copyrights are safe (for now) is that we stopped the University grabbing them with its 2002 policy; now it's payback time and we're asking for your solidarity and support. Second, your students and postdocs will suffer, as the University will claim their IP if they're externally funded. Third, the two schools that will be most damaged - technology and medicine - are the profitable schools; and a poorer Cambridge will be less able to subsidise humanities departments. Finally, once the administration gets used to milking its more successful academics, then sooner or later everyone's in the frame. What's the justice in the University taking a share of engineers' patents but not of historians' TV series? Why should medics have to share their private-practice fees with the department - but not lawyers?

3. That's certainly food for thought. But the University says its proposals will stop staff and students having to sue each other in the courts. Surely that's a good thing?

We agree entirely. The arbitration system will not only help people resolve disputes over whose name should go on a patent, but the much more frequent disputes about whose name should go on a paper. It's overdue. The only change we propose is to extend it - so that people can use the system for existing disputes, not just new disputes arising from 2006.

4. The University also says its proposals will make the treatment of tenured and contract staff more consistent. It this true?

See above. This is indeed a problem, and the amendments cope with it better. The Council proposal seeks to level tenured staff down to the low level of rights enjoyed at present by contract staff, while the amendments seek to level contract staff up.

5. I'm a member of academic-related staff - in fact a computer officer. I don't file patents, I just write software. Why should I bother about this?

We extend rights to material produced in the course of your work rather than research. That means that you can put the software you write in the public domain without having to ask permission first. None of the pro-council flysheets have rebutted this, but Council didn't take it as a friendly amendment. The only way that non-research staff, or research staff who produce non-research output, can control your own work is by voting for the amendment, and even the pro-council side don't dispute that.

6. Why do you use the University's crest on your web page and leaflets?

Regulation 31 states that `The University is solely entitled to use its name and arms'. The background is that our administration seems to want to sharpen up our `brand'. Should it have the power, for example, to stop a controversial student society using the Cambridge name? This is a discussion we have to have, especially in view of the possible tensions between academic freedom and the Home Office's `radicalisation' agenda. However, a Grace on the commercial exploitation of research should not be used to slip such a regulation through. We're therefore proposing to amend Regulation 31 to `The University is solely entitled to make commercial use of its name and arms'.

7. The university says it didn't mean to take the right to make contracts without the consent of staff. What do you say to that?

Right at the beginning of this, when we pointed out the terrible effects that the 2002 policy would have, the reply from the Council was "we didn't mean it". After more than three years, one committee, three Reports, four Discussions, one eminent QC and the support of 14 other law professors, aren't we entitled to expect that the Old Schools will mean what they say and say what they mean? This is legislation, after all: it will take effect once the Grace is approved, whichever way the ballot goes. If you don't mean the University to acquire the power to make contracts on your behalf, you had better vote for the amendments.

8. What happens if you lose? Is that the end of the whole dreaful row?

That's unlikely, for several reasons. First, tenured staff will still have much better terms than contract staff, and once the principle of levelling down has been accepted (rather than levelling up) the temptation will be for the University to ask for more. Second, the injustice of treating technologists' patents more severely than historians' books will rankle. Third, the Cambridge Enterprise bureaucracy won't make its budget - facing a choice between paying 15% tax to exploit an idea yourself or 67% tax to have it exploited by CE, you can be sure that the valuable ideas will be self-exploited and CE will end up with the turkeys. So the current share of patent income enjoyed by the centre will go down from about half to something near 15%. All these factors will create strong incentives for the centre to move against the next target - and Regulation 2 gives it the power to do so.

The net effect is likely to be that IP will remain a running sore for years. It will distract management time and attention, poison relationships between academic and administrative staff, and undermine the octocentenary fundraising campaign. We don't need any of that.

IP Ballot - Vote for the Amendments!