1.2 History and ethics of university IP laws
The differences between the approaches to handling of the IP in the university and industry settings are closely related to very dissimilar societal roles that Academia and Industry have played throughout history. Traditionally, university scientists had been content to focus their inquisitive minds, for the most part, on basic research with any putative practical applications being tangential to the main goal of expanding knowledge. The Academic scientists liked to see themselves as intellectuals engaged in noble pursuits unmarred by the practical concerns of everyday life. This Academic elitism had always been associated with an ethical norm of providing an honest unbiased opinion on scientific issues, thus ensuring unimpeded and free dissemination of the knowledge for the benefit of all. While this mind-set still remains widespread, it is not nearly as prevalent as in the past and the attitude of Academia is undergoing rapid and not always voluntary changes. It is not our intention to judge how salutary these changes are for the Academia and society at large, all we are saying is that these changes are not likely to slow down.
The role of industrial scientist has always been quite different, largely due to the fact that he or she are the employees of the private entity (corporation) whose overriding goal is turning a profit with all the societal benefits guided byAdam Smith’s “invisible hand” being strictly secondary to that objective. Hence, for an industrial employee testifying on the material of interest to the industry the logical and perfectly ethical behavior is to adhere to his company’s viewpoint and to use his or her expertise and brainpower to help the company achieve commercial advantage over competitors. Thus university and industry operate in rather different ethical or value realms, and when these realms come into contact the friction becomes unavoidable. To illustrate this fact with just one example, consider what can transpire when the university professor gets on an industrial payroll, which is quite a common practice nowadays. The aforementioned professor is bound to face a number of ethical dilemmas and would have to learn to navigate in this hazardous environment. Overall, as the boundaries between academia and industry are becoming porous, it is not difficult to predict the outcome of a gradual change of fragile traditional university values and their shift toward commercial ethics .
The questions of ethics were being debated, extensively and vigorously, within legal and scientific communities in 1980s. Harvard President Derek Bok wrote in 1981 that university should not be involved in any business activity, even on a limited, experimental basis, since it may compromise the quality of education and research . Twenty years later this viewpoint has been mostly forgotten in the headlong rush to promote the technology transfer and collaboration between academia and industry. The consensus had been reached among major universities that commercial success of their inventions is essential for the university prestige and recognition; that it attracts top academics and the best students, as well as public and private funding.
It is well known that a majority of university scientists, particularly in the science and technology fields are currently working or had been working in the past on various projects sponsored by industry. It is also a fact of life that the merits of a scientist are measured not only by amount of publications, citations (h-factor), and the quality of them, but to a large degree by the amount of funds brought to the university via external contracts. Furthermore, the externally-financed research had penetrated the academia to such a degree that were the external funding to dry up, the whole intricate and delicately balanced mechanism of academic research would come to a grinding halt as the facilities would decay and stop functioning and the students and stuff would go unpaid. Thus, ethical debates notwithstanding, it is too late to complain about university research commercialization, since it is a reality that has become an inseparable part of university research and it plays a growing role in ranking and reputation of an academic institution .