The Branding of the American Mind: How Universities Capture, Manage, and Monetize Intellectual Property

Jacob H. Rooksby’s new book, The Branding of the American Mind: How Universities Capture, Manage, and Monetize Intellectual Property and Why it Matters, is an expert study of the oft-overlooked relationship between intellectual property, higher education’s purpose, and the public-private conflicts that arise from the capture, management, and monetization of these endeavors. Rooksby offers a well-crafted critique of large, modern research universities, as well as their uses and abuses of intellectual property. His goal is to “better assess the priorities of modern universities, to ensure that they align with society’s expectations of what it means for higher education to serve the public interest” (p. xv).

Rooksby puts intellectual property in context with regard to some of the major conflicts facing higher education; namely its purpose, private benefit versus public good, power and financial inequities, government involvement, and academic capitalism, all while arguing that “in colleges and universities, the pendulum has swung too far in the direction of championing private rights, in the form of intellectual property, at the expense of the public good” (p. 14). Indeed, the underlying argument throughout the text is that a need exists for “recalibration” of policies, laws, and practices at institutions, one that helps campus actions and behaviors become “more consistent with higher education’s noble purposes and best ambitions” (p. 14).

Drawing deeply from previous works on the public-private tension in higher education, Chapter One offers a brief explanation of patent rights as an illustration of the fundamental conflict framing the book’s entire argument. Using real-world examples, Rooksby examines the manifest impacts of intellectual property rights and how “much of what has been assigned as intellectual property in higher education is being claimed by its institutions, with the interests of the public being harmed in the process” (p. 9). The author’s major arguments in this chapter do not suggest that intellectual property claims are all bad. Instead, he calls into question the continued corporatization of the system and the often-negative repercussions that result for higher education’s public purpose.

In detailed fashion, Chapter Two describes the decision-making and policy ramifications of intellectual property activity. What makes this chapter particularly useful is that it carefully delineates among the four legal categories included in “intellectual property”: patents, copyrights, trademarks, and trade secrets. This chapter will prove invaluable to non-attorneys or those unfamiliar with the nuances of intellectual property laws. Moreover, while outlining intellectual property legal doctrines, key principles, and the impact on higher education, Rooksby sets an excellent foundation for subsequent chapters, outlining here the themes to be discussed in further detail.

Through several case studies illustrating universities’ legal interactions with individuals (including alumni and students) for trademark infringement, Chapter Three carefully examines the role of trademark rights in higher education. With the rise of the college-licensing industry, involvement with consortia allowed trademark expansion beyond college athletics. The 90s showed the establishment of licensing programs with professional staffs, increasing enforcement, and the advent of cheap domain names beyond the previously .edu category. While there is debate on the best way to share faculty research with the public (Kezar, 2017), Rooksby provides a compelling argument that trademark “over-activity” (p. 96) is ancillary to the three-part mission of universities (teaching, research, and service), and harms the public through hampering free speech and widespread dissemination of research potentially beneficial to the public.

With myriad examples, Chapter Four covers patenting and licensing, with a focus on the impact of legal decisions, enforcement through litigation, exclusive rights, and lobbying. However, Rooksby argues, “just because prevailing law allows certain forms of patent activity does not mean that universities must engage in it” (p. 129). The passing of the Bayh-Dole Act of 1980 and refinements made in the Leahy-Smith America Invents Act of 2011, meant faculty invention ownership no longer defaulted to the federal government, and allowed universities to own inventions. This had a major impact on how universities decided to protect intellectual property rights for discoveries made on their campuses. This chapter does an excellent job of shining sunlight on some of the unsavory practices employed by universities to protect their stake in intellectual property litigation. Similarly, it tracks the change in values around “technology transfer,” as well as the effects this had and continues to have on the higher education’s public mission. Additionally, increasing patent activity adds to the administrative burden of universities and provides another example of university culture changing to mirror the behavior of for-profit companies, treating intellectual property as a “strategic asset” (Badke, 2017, p. 13) rather than something for public good. As Rooksby notes in a quote from the editor of the Journal of the American Medical Association, “The monopoly of a patent carries with it grave public responsibilities. In the scramble for patent rights, it is no profit to a university to gain the whole world and lose its own soul” (p. 177).

Chapter Five explores the consequences of copyright ownership for entrepreneurship, sponsorship, digitization, and special collections. University policies addressing copyright are inconsistent, confusing, and can pit institutions or corporations against students or faculty with regard to ideas produced through research or classroom assignments. Students and faculty find that copyright policies contradict expressed university goals of innovation and entrepreneurship, and have begun lobbying for intellectual property rights at the state and federal government levels. In response to increasing contact between academics and commercial partners in entrepreneurial university settings (Badke, 2017), Rooksby outlines practical considerations for students and faculty when industries are allowed to participate in scholarly and classroom projects, as well as the creation, handling, sharing, and digitalization of special collections in university libraries, including donations. Once more highlighting the detrimental impacts of complex institutional copyright rules, Rooksby states “Consulting an intellectual property attorney should not be a burden that we expect students to shoulder before enrolling in a course, entering a university-sponsored competition, using campus resources, or accepting a paycheck for campus work”; nor should it be expected of faculty (p. 192).

In Chapter Six, slogans, Internet domain names, student-athletes’ publicity rights, and trade secrets as they relate to institutional branding are questioned and considered. With an occasional shift to legalistic writing, Rooksby takes a deep-dive into the ascendance of branding in higher education and its “often overlooked corners of the intangible world” (p. 210)  to again argue that such exploits have a detrimental effect on the public interest. For example, domain name complaints filed by colleges and universities have increased substantially since 2000, rising from a low of 4 to 35 in 2009. He concludes the chapter by examining the continued overreach of universities into slogans, demonstrating institutions’ “private-goods orientation” and consumerism, in addition to universities increasingly turning to litigation to protect their business practices (p. 242). This includes less legitimate reasons, such as those preferred by donors or corporate partners, under the guise of protecting trade secrets. In connecting this chapter’s arguments to those made throughout the text, he states that “All of these efforts and initiatives come at a cost to society… signaling the latter’s [higher education] shifting allegiances to corporate shareholders over the public at large” (p. 253).

The seventh and final chapter offers compelling recommendations for universities to curb “competitive market practices” (p. 267), refraining from overextending their reach into trademarking slogans and other language that is not crucial to an institution’s brand and mission. While accounting for the well-documented demands of policymakers and taxpayers for “market-oriented outcomes” (Serna, 2013), he, nonetheless, encourages universities to lobby for intellectual property policies that account for the special nature and character of higher education, rather than those adopted almost wholesale from the business sector. Like Kezar (2017), Rooksby argues for an increased role by academics in intellectual property policies and procedures at universities. He also supports decreasing staff within technology transfer offices, and argues forcefully for increased intellectual property and publicity rights for students, in and out of the classroom and athletic fields. In closing this chapter, Rooksby includes persuasive and relevant case studies and illustrations that are interwoven with legal terminology and practical applications for university faculty and administrators. While Badke (2017) sees intellectual property as a “moneymaker,” Rooksby rightly asks if colleges and universities will “succumb to the pressures to generate revenues in ways that might forever alter their fundamental values and historical orientation toward the public?” (p. 255). Commonly referred to as “academic capitalism” (Slaughter and Rhoades, 2009), for faculty “this new entrepreneurial orientation runs deeply counter to traditions of education and public service” (Kezar, 2017, pg. 93).

Rooksby notes that revenue sources for higher education have become more variable and less stable, and that these movements might play into revenue seeking-behavior as it relates to intellectual property. A potential shift toward performance-based funding, incentive-based budgeting, and the role of “market pressures” might have made for a good addition here.

While intellectual property is most often discussed in the context of large, research universities, Rooksby’s work has clear implications for smaller regional universities and private, liberal arts institutions. While these institutions own patents and trademarks, “patent enforcement is a particularly perilous space for organizations that are small, non-profit, or dedicated to the public interest” (Rooksby & Pusser, p. 87). Therefore, patent ownership becomes just another example of equity disparities pervading higher education, where the rich get richer and the poor get poorer.

In sum, Rooksby reinforces how times have changed since “the public’s trust in higher education was tethered to the concepts of access and transparency” (p. 245). The prevailing “belief that the modern college or university must be all things to all people” (p. 233) and provide private returns on investment to stakeholders continues to compare universities with for-profit businesses. While universities have “shown aptitude to engage in commerce” (p. 250), mirroring for-profit behavior does not always align with the overall aim of higher education: the pursuit of knowledge in service to the public good.

References

Badke, L. K. (2017). The legalization of higher education. New Directions for Higher Education, 2017(177), 11

Kezar, A. (2017). Faculty voice in intellectual property policies: Collective action for the public good. New Directions for Higher Education, 2017(177), 93.

Rooksby, J.H., & Pusser, B. (2014). Learning to litigate: University patents in the knowledge economy. In B. Cantwell & I. Kauppinen (Eds.), Academic capitalism in the age of globalization (74-93).  Baltimore, MD: Johns Hopkins University Press.

Serna, G. R. (2013). Understanding the effects of state oversight and fiscal policy on university revenues. Planning for Higher Education, 41(2), 1–16.

Slaughter, S., & Rhoades, G. (2009). Academic capitalism and the new economy: Market, state, and higher education. Baltimore, MD: Johns Hopkins University Press.