When the business of the university is business, all academics are suspect.
BY JACK HEINEMANN · FEBRUARY2015
Consistent with international obligations and domestic law, universities must safeguard academic freedom. The United Nations Educational, Scientific and Cultural Organisation (UNESCO) said: “Higher education institutions, individually or collectively, should design and implement appropriate systems of accountability, including quality assurance mechanisms to achieve the above goals, without harming institutional autonomy or academic freedom.”
What are those accountability systems of which UNESCO speaks? They are, among others, systems that ensure that (1) the activities of those within the institution do not intentionally or otherwise stifle the academic freedom of their colleagues and thereby inhibit performance of the institution as critic and conscience of society; (2) the institution does not willfully or through neglect establish an expectation among external parties that the university will put their interests above the public interest. To do otherwise would potentially harm institutional autonomy or academic freedom.
Sadly, I think that the accounting systems of the modern university are failing to ensure that it meets UNESCO’s expectation for safeguarding academic freedom.
Two developments are especially worth highlighting. The first was the finding of a federal court in the United States that ruled that university research was not protected by an exemption from restrictions on using material protected by intellectual property rights (IPRs) because —
academic research institutions have business interests in addition to educational interests, many of which are furthered by using patented inventions…[the court ruling] fundamentally questioned the nature of academic research, considering the financial and commercial benefits that academic institutions receive through their scientific studies and advances. As a result, research universities can not rely on the exception when they use patented inventions.
DeFranco et al., 2006
The second is the finding of the European Ombudsman that a public university scientist serving on an advisory board for the European Food Safety Authority (EFSA) should have declared their employer’s financial conflict of interest in the technology being considered by the safety regulator.
All public good research is threatened when academic research becomes business
University academics traditionally held a privileged position in law because they could do research on products protected by IPRs, e.g., patents, without the permission of the property holder or, in some cases, paying rent to the owner. This is called the research or experimental-use exemption. It applied only where research was not for commercial advantage.
The importance of the exemption is that higher education teaching personnel may use their academic freedom for the betterment of society and in particular for the protection of those with less political or financial power than those who hold the IPR. To do this, academics must be able to conduct research on those products and promulgate the results independently of the wishes of those who sell the products (Thomas, 2005). Neither by law nor legal precedent should IPRs override this public service.
The public sector education and research institutions are blurring the boundaries between their mission to the public and their actual or perceived obligations to government, including remaining financially viable. In doing so, they become increasingly comfortable with dependence on private funders (mainly industry) for their primary activities of research and teaching. Moreover, they become not just more comfortable with an entrepreneurial academy, they invest in facilitating it by channeling significant resources into technology transfer offices and legal advice with attendant increases in administration costs.
Entrepreneurial activity is neither new to universities nor necessarily incompatible with their mission and goals, unless entrepreneurship is improperly managed, disproportionate to non-commercial research and other appropriate activities, or defining of the institution. Unfortunately, the courts are noticing that universities are not properly managing the conflict between their own interests and their public mission.
The federal court ruling “recognizes that research at universities is often conducted in pursuit of commercial goals or in conjunction with commercial entities. It follows that when a university benefits financially from its use of a patented idea, it should pay royalties to the patent holder or be liable for infringement. This is especially true when the university derives considerable revenue from licensing its own patents, many of which presumably result from research conducted at the institution” (DeFranco et al., 2006).
When commercial research is routinely conducted at an institution, then all research, commercial or not, conducted at the institution may have to adhere to the rules applied to business. When or if universities allow this to happen, in my view they will have failed to protect academic freedom. This failure will stem from the absence of proper systems of accounting that would make it impossible to confuse research that can protect the public from research that might be perceived as the proprietary interest of the university.
Universities fail when their employer’s financial interests compromise the perceived intellectual independence of academics
University academics are frequently used by regulatory agencies, courts and government to provide expert opinion and advice. Historically it has been assumed that by the nature of their employment, they are a source of expertise independent of financial or other conflicts of interests. As discussed above and argued by the European Ombudsman, those historic assumptions are no longer reliable (Case: 346/2013/SID).
They now fail because universities do not adequately separate academic staff from institutional conflicts of interest.
EFSA convened a Working Group for expert advice during public consultation on developing Guidance on risk assessment of food and feed from genetically modified animals. A member of the working group from Oxford University did not declare Oxford’s significant stake in a company developing genetically modified insects, and EFSA could not establish that Oxford had appropriately insulated the academic expert from this conflict of interest.
The Ombudsman said that EFSA “has an obligation to ensure that [experts] are, and are also seen to be, independent of any third party influence that might unduly affect their ability and willingness to give the best advice possible.” EFSA relied on its impression that university academics were independent. However, the “Ombudsman notes that it is increasingly common for universities and other third-level bodies to work closely with companies to carry out research and to commercialise the results of research. The traditional understanding that academia is necessarily and automatically ‘independent’ must evolve to reflect these developing deeper relationships between academia and business. The view that academia, academic institutions and individual academics are independent of business must be based not on any preconceived assumptions, but rather on an examination of the specific relevant facts” [emphasis added].
EFSA argued that “the rationale for this choice [of experts from universities] is obvious: such an approach would disqualify precisely those full time researchers and professors who are least directly engaged in commercial activities.” And that is precisely my concern.
The independent academic expert is a social resource. It is also an endangered species. Failure to create clear and reliable career pathways for those expert in the state of the art, and free of any pressure to be—or be seen to be—friendly to industry and commercial interests of public institutions is gambling with public trust and the ability of the public to challenge financial and political power. The system cannot work if the only experts are those who develop the products that government ensures are safe to use.
The Ombudsman issued a warning to universities when she said that “the question of whether, in a given case, a university and its staff are independent of third-party influences will depend on the precise relationship the university has with such third parties, and the mechanisms by which that relationship is managed by the university.” Where the university can be perceived as a sort of collective of academics, then the vested interests of the employer may not be material to the independence of the academic. However, the Ombudsman does not see this as the case at Oxford.
With this we return to our international obligations to “implement appropriate systems of accountability” that preserve academic freedom and institutional autonomy.
What form of accountability?
It is not too late to save the independent academic. The European Ombudsman expressed confidence in the sector when she said that at present “it may well be possible, and indeed likely, that many universities and university staff remain independent of third-party influences.” But her statement cannot be taken as assurance that such a resource will persist without concerted, purposeful action to preserve academic independence. She noted that in “this context, it would be appropriate for a university, if it wishes to invest in commercial ventures, and wishes to ensure, at the same time, that it and its staff remain independent of influences resulting from those investments, to establish mechanisms, such as ‘Chinese walls’, to prevent communication and instructions from the investment arm of the university influencing the academic arm.”
More than a wall between the investment and academic arms will be required. The entrepreneurial activities within the academic arm must also not influence the non-entrepreneurial interests of colleagues. What form these systems take must evolve from dedicated interactions between academic staff and students on the one hand and those charged with ensuring effectiveness of the systems on the other. Those talks are urgently needed, worldwide.
The role of the public sector scientist (and academics in general) is evolving. While it remains true that the majority of salary and indirect benefits paid to academics is from the public, partnership with private sources of funding have a disproportionate influence on what can be done. In the United States, for example
even as colleges and universities have become the focus of increased attention from the general public and policy makers alike, these institutions themselves seem to have lost their focus on a mission of preparing an informed citizenry for participation in democracy and expanding knowledge for the benefit of all. Without a doubt, higher education still provides a transformative experience for the millions of individuals who take part in its many activities. Behind the scenes, however, American higher education is changing in ways that detract from its potential to enhance the common good.
The failings of government and the sector contrast starkly with how some academics depict their independence from the entrepreneurial interests of their universities. In one example of such an academic, the employing university is reported to have attracted considerable relevant funding and spawned 300 new inventions each year supporting more than 100 companies, while also hosting a professorship endowed by a multinational company with related interest. I draw upon this example without judging the ability of the particular academic to manage his potential conflicts of interest. Nevertheless, the acceptance of his denials of a conflict of interest rely on the public sharing the same historical impressions of independence that EFSA held, and which likely fails to take into account the appearance of conflict of interest.
The pursuit of commercial revenue generates conflicts of interest regardless of whether the party is within or separate from the university. Because so many public sector scientists are interested in capturing IPR from their research, the range of issues that are important for public researchers to engage in is restricted and unbalanced. This entrepreneurial activity is not only tolerated, but encouraged by the significant growth of technology transfer offices (also paid for by the taxpayer) at universities, the recognition of patents in applications for promotion, and the introduction of thesis publication embargoes requested by private sector funders.
I think that it may be possible to earn the public trust and generate IP through entrepreneurial activity in the modern university. However, without similarly strong mechanisms to create entrepreneur-free career pathways in the same areas of expertise, and robust processes to separate academics generally from the specific entrepreneurial interests of others (and the investments of the institution itself) puts the entire sector at risk of being unable to routinely provide objectively independent expert opinion.
As the American Association of University Professors’ see it “institutions of higher education have lost their focus on the academic activities at the core of their mission.” Only if the autonomy of the university is preserved can it also secure the academic freedom of staff and students. This means confronting threats from both within and external to the academy. And only if academic freedom is routinely exercised can students and the public be confident that the university is meeting its obligations to them.
DeFranco, D.W., Levy, C.M., and Pogach, M.L. (2006). The experimental use exception: looking towards a legislative alternative. J High Tech L 93, 94-112.
Thomas, Z. (2005). Agricultural biotechnology and proprietary rights. Challenges and policy options. J World Intel Prop 8, 711-734.