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04/05/94

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First senate discussion on conflict policy focuses on software ownership

STANFORD -- The contentious issue of who should own intellectual property rights, especially rights to software, dominated the first of two Faculty Senate discussions about a proposed new policy on conflict of interest and commitment - a wide-ranging policy that could affect every member of the Stanford faculty.

At the March 31 session, senators talked about the first five of the policy's 11 provisions, with most of their time devoted to number five, disclosure and ownership of intellectual property.

Provisions one through four proved less contentious: the issues of presence on campus, limitation on outside professional activities, open exchange of research results and appropriate use of university resources.

Consideration of the policy, which was developed by the Committee on Research over the past 18 months, will continue at the senate's next meeting on Thursday, April 14.

Introducing the proposed policy, committee chair Craig Heller, biological sciences, said that at times the committee "behaved like a group of Talmudic scholars," vigorously advancing and debating extreme positions on one side or the other.

"I think that virtually every possible position that we could have taken has been vigorously discussed, sometimes heatedly," Heller said.

The good news, he said, is that the committee unanimously agrees on the draft document it submitted to the Faculty Senate.

Intellectual property rights

Heller told the senate that the committee tried to discuss conflict of interest without addressing intellectual property rights, but found the task impossible.

"The issue of intellectual rights is at the core of conflict of interest," he said. "So either we have a very clear uniform policy on intellectual property rights or else we have a conflict of interest policy which is window dressing."

The committee proposes that ownership of all inventions vest with the university, but that ownership of copyrightable material will continue to remain with the individual.

Should software be treated as an invention or a book-like creative work?

The committee suggests that software that is device- like - a tool to accomplish a task - should be treated as an invention and the university should own rights. Material in digital form that could appear in print should be treated as a book, where the author retains copyright.

During the discussion, chemistry Professor Richard Zare suggested that provisions on intellectual property rights could lead some faculty to initiate litigation against the university. He suggested binding arbitration be used to resolve disagreements.

There is a gray zone in the software issue and the law is not clear, Heller said. The committee thought it best to depend on "judicious decisions" that would be made in the university.

He said that the committee is not trying to take away remuneration to the faculty. "Our current schizophrenic policy simply creates conflicts of interest," he said.

Currently, Stanford is one of a handful of U.S. universities where faculty members can retain ownership of inventions unless the sponsoring agencies state otherwise. The point is largely moot because most government grants and contracts require that ownership go to the university.

However, currently a researcher supported by gift funds can retain title to an invention or even assign it to the donor. This sets up potential conflicts that are best avoided by having one uniform policy, Heller told the faculty.

Addressing the software issue, Robert Street, vice provost for libraries and information resources, said that the distinction between device-like and print-like software is "terribly Gutenberg-centric."

"This distinction is far too simple," he said. "We have to have a better rationale for drawing that line than textual and device-like. I don't know exactly what that is, but it's not print versus everything else, in my opinion."

Heller responded that the distinction did not hinge on "print-like" but rather the expression of ideas and opinions as opposed to a device created to accomplish a task.

Multimedia is an example, he said, of the large gray zone where in many cases it would be considered more like a text than an operating system. However, some multimedia software is designed as a tool to achieve a task, he said.

Street told Heller that history Professor Carolyn Lougee's popular software program, The Would-Be Gentleman, is a tool students use to accomplish a task and also is equivalent to a textbook.

In response to a question from Street, Heller said that the Committee on Research and the Committee on Academic Computing and Information Systems agreed to disagree on the issue of how to define ownership of software.

The two committees did agree that software and courseware intended to disseminate the results of academic research and scholarly study is text-like. A resolution proposed by the academic computing committee last year and endorsed by the senate did not address the issue of device-like software, Heller said. That resolution states that the university will not claim ownership of computer software, courseware and similar works created to disseminate the results of research.

James Adams, mechanical engineering, said "half the world is full of people doing interactive teaching." He worried there would be more incentive for a teacher to write a calculus textbook rather than create an interactive teaching program.

Heller asked if it would be more acceptable to make the distinction on the basis of patents rather than the description of the nature of software.

"That's right," Adams responded. "This is the game of the age" for many people. He said he was passing along faculty comments that the new policy appears to put those who experiment in new modes of teaching at a disadvantage.

Who will decide?

Adams asked who would be the "Solomon on this issue." Would it be Dean of Research Charles Kruger?

Kruger interjected to laughter that the buck stopped with the provost, to which Adams suggested that the system should not rely on "the good provost making these decisions all the time."

Asked her opinion on the issue, Kathy Ku, director of the Office of Technology Licensing, said the university was not interested in acquiring rights to courseware.

The software area is so dynamic, said Stephen Krasner, political science, that it will be impossible to resolve except through case law over time. "I don't know how to write something that will cover all these cases that are flying around," he said.

Heller responded that it is necessary to generate guidelines "that will protect us in areas where there is the potential of lots of money, and people are making decisions about what they're doing based on financial gain rather than on their obligations to the university and their professions."

Asked by Zare about Caltech's policy on intellectual property rights, Heller said the institute claims ownership to software produced by the faculty in the line of duty or with use of institute facilities. No distinction is made about courseware. Most other institutions also retain rights to software.

"We're actually proposing a more liberal policy," Heller said.

On behalf of the Computer Science Department, which has no representatives on the Faculty Senate, Tony Siegman, electrical engineering, drew attention to a letter at senators' seats from 17 members of the department (later increased to ??; see page ??) opposing the intellectual property rights proposal on the grounds that a "fairer and more consistent treatment of creative products" should be adopted.

"We can find no legitimate difference between, say, a computer program and a novel that would justify their being treated differently under the proposed policy," the computer science faculty wrote.

Each may have commercial value and each would exercise skills that make a faculty member valuable to Stanford, the faculty said. "Indeed, writing a novel may require more use of expensive university resources, such as libraries, than writing of software," they said.

The policy discriminates against faculty whose creative efforts are more likely to yield "technology" than "art," the computer scientists said. The tradition of faculty ownership, they said, "should either be extended uniformly to all faculty creations, or a new consistent and fair policy should be adopted for all faculty creations."

John Bender, English, asked Heller whether the dividing line could be drawn at what can be patented versus what can be copyrighted.

Heller said that approach makes the most sense, but is difficult because copyright law and patent law are in a state of flux. Operating systems, for example, cannot now be patented, he said.

Siegman suggested that existing faculty could be grandfathered under old policies so they could claim ownership of patents.

Provost Condoleezza Rice told Siegman that she did not think his idea was fair or workable for future inventions.

John Brauman, chemistry, said that an obvious way to deal with the problem would be to have all faculty assign copyrights or patents to the university, which would then assign back the rights or at least return the profits to the faculty. This would differentiate the money from the ownership of intellectual property, he said.

Heller objected to the idea of assigning copyrights to the university, saying that the institution "cannot be in a position of controlling the content or the dissemination of faculty members' ideas. That's just an absolute violation of academic freedom."

Also, because faculty can publish anything they want, the university would be taking on liability that publishers now assume. If Stanford took ownership of copyrights, "we would be the only university doing so. We would really be the Neanderthals," he said.

"It's an unworkable proposition to say we're going to treat all intellectual property rights exactly the same," Heller said.

Presence on campus, conflict of commitment

During the discussion of the policy's fundamental principles, Heller said that faculty members would owe their primary professional allegiance to Stanford, and that a conflict of commitment may arise if a faculty member spends too much time away from campus.

Zare said he was concerned that the policy limits faculty to being away only 13 days per quarter. Those involved in public service, such as chairing a National Institutes of Health study section, may need to exceed the limit, he said.

Heller clarified that the 13-day limitation applies to paid consulting, not public service. Heller agreed to a suggestion by Terry Karl, political science, that the language be clarified.

Heller also said that an individual might get so involved in public service as to lose sight of his or her commitment to the university. It is appropriate for an individual to discuss with a department chair or dean how time is being spent if it involves much activity off campus, he said.

Myra Strober, education, praised the committee for its work and told Heller that she was struck "perhaps with a little more sadness than comes out in your report" about statements on the inevitability of conflicts of interest.

She said she was concerned about maintaining a significant presence on campus, but the proposed document does not provide much guidance. "I realize we may not want to put numbers on this," she said, but there should be a sense that being at Stanford is the primary obligation. "In some circumstances and for some people I think it's gotten a bit out of hand," she said.

David Korn, dean of medicine, commended the committee for the "quality of thought in the document."

He said it is important to recognize that the university was built on a "sense of individual integrity, individual responsibility and individual trust."

No document, no matter how detailed, "can overcome an absence of individual integrity and responsibility," he said. It becomes obvious to others who is not on campus, but "we've got to continue to rely on a certain amount of rationality and common sense" because documents are not going to substitute for that.

Limitations on outside professional activities

Two new provisions are included in the policy's second section, limitations on outside professional activities: 1) a prohibition against a faculty member serving as principal investigator on a project through another university when the project could be done at Stanford, and 2) a prohibition against serving in a managerial role for another entity.

This does not exclude faculty from working on big science projects that bring together scientists from different universities, nor is it intended to stop faculty from submitting proposals through field stations where facilities exist that are not duplicated at Stanford. It also exempts faculty participating in multi-site training or research programs.

Krasner asked how often Stanford faculty were serving as principal investigators at other institutions.

Patricia Devaney, associate dean of research, said that a random sample on faculty consulting compliance last year turned up three or four out of 60 who were serving as principal investigators elsewhere on projects that could have been done at Stanford.

An example of an ongoing conflict that should be resolved, Heller said, involves whether the National Bureau of Economic Research, a New York-based agency with a branch located on Stanford land near the Golf Course, is part of Stanford.

As proposed, the policy would prohibit faculty from submitting proposals through NBER unless a waiver is granted.

John Shoven, dean of humanities and sciences and professor of economics, said that Stanford accepted the money years ago to construct the building and entered into a long-term lease. He said he was not sure NBER qualifies as being part of Stanford, but "if we're going to prohibit faculty from running research [there], then we'll have an empty building, I guess."

Is the motivation for running proposals through NBER a desire to avoid Stanford's indirect-cost rate? Heller asked.

"Since their rates are higher than Stanford's," Shoven responded to laughter, "I don't think that's the real issue."

On the subject of the 13-day limitation on outside consulting, James Van Horne, business, asked why the committee proposed a separate prohibition against serving in a management position.

Heller said the committee recognized that in many cases, a faculty member probably could manage something like a small consulting firm in the 13 days allotted each quarter for outside consulting. "A certain amount of common sense" must be used when interpreting such a ruling, he said.

The committee thought it better, Heller said, to put the burden on the faculty member to establish that he or she could fulfill a full-time commitment to Stanford while serving as a line officer elsewhere.

Heller emphasized that line responsibilities are construed to mean managing on a day-to-day basis, as opposed to infrequently over a few months.

Responding to a question from Steve Chu, physics, Heller said that involvement with a consulting firm of, say, three people would not be a problem.

However, "there's going to be some size of operation that is going to eventually be a threshold" where the question must be asked, "are you really managing a company or are you engaging in your own consulting activities?"

The proposed policy would not rule out an individual declaring him- or herself a corporation for tax purposes, Heller said.

Free and open exchange of research results

The proposed conflict policy calls for faculty to foster an atmosphere of academic freedom by promoting the open and timely exchange of results of scholarly activities, ensuring that advising of students and postdoctoral scholars is independent of personal commercial interest, and informing students and colleagues about outside obligations that might influence the free exchange of scholarly information between them and the faculty member.

Responding to a question from John Bender about transfer of knowledge at an operation like the Center for Integrated Systems, Heller said the committee was satisfied that the basic rule governing CIS and various affiliates' programs was openness of information.

Heller said that the fact that the researchers are "not directly pipelining to a sponsor of a direct research program means that they don't present the kinds of problems that we're trying to avoid here."

Heller asked if senators were concerned about a provision requiring disclosure of outside relationships that might impede the free exchange of information between faculty and colleagues or faculty and students.

It has been suggested, he said, that disclosure be universal, but the committee's position has been that disclosure be "fairly minimal," providing for confidentiality should consulting arrangements require that.

But "how can we ensure that there is actually disclosure of compromising relationship if we don't have a universal disclosure of consulting relationships?" he asked, playing devil's advocate.

The idea, Heller said, is simply to require commonsense disclosure. If information must be held back, at least tell colleagues or students that you are "not free to discuss everything you're doing."

William Simon, law, asked if the details held back from students would be required on the compliance form that faculty will fill out annually.

Heller said that the policy "does not now require you to disclose that information unless there is some other relationship between you and the company that would result in a conflict of interest."

The discussion then focused on specific wording questioned by Robert Street and James Van Horne. Van Horne said it sounded as though faculty were required to provide students with complete financial information on all their consulting.

That was not intended, Heller said, promising to clarify the language. Pat Devaney explained that the idea had been to make sure students did not feel exploited by faculty.

Appropriate use of university resources

In the discussion of appropriate use of university resources, including staff, Edward Harris, medicine, asked about the use of secretaries to help prepare manuscripts or to write opinions for a medical professor who is going to provide expert testimony on, say, "hangnails." Some secretarial work may produce financial gain for the faculty member, he said.

Heller told Harris that financial return from a publication should not be the basis for deciding whether it is an appropriate university activity. Faculty are expected to write books to promote education in their fields, he said.

If, however, a chemistry professor on university time "is writing detective novels that are best sellers, we view that as a conflict of commitment," he said. That should be done outside the university.

"The use of university personnel and resources for outside consulting work is certainly something that should not be done," Heller said.

Heller: A 'constructive' meeting

After the senate meeting, Heller said he considered the discussion "constructive."

"These are things that people are very concerned about and I hope we've been able to convince at least some of the skeptics that we're not anti-research, that we're really trying to develop policies that will be in the best interest of research at Stanford."

Heller will meet with the senate Steering Committee on Wednesday, April 6, and the Committee on Research is scheduled to meet on Friday, April 8, to consider issues raised at the senate and make some revisions.

Discussion of the policy will continue at the senate's April 14 meeting. Current plans call for a vote on the policy at that meeting, but it could be delayed if the discussion is not complete.

Both Senate Chair Patricia Jones, biological sciences, and Academic Secretary Marion Lewenstein, communication, will be out of town April 14. Tony Siegman, vice chairman of the Steering Committee, will run the meeting, with help from Patricia del Pozzo, assistant academic secretary.

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