UVSQ 2010
Chomienne, H.; Corbel, P. and Denis, J.P. « Gestion de la propriété intellectuelle et institutions publiques de recherche : l’éthique à l’épreuve des objectifs de performance », Symposium « Ethique et performance en management public », Saint-Quentin-en-Yvelines, December 2010
Abstract:
As intellectual property (IP) rights, and in particular patents, are by their very nature rights to prohibit, they pose a number of ethical problems (Lea, 2006). The problem is particularly crucial in the field of health, where patents can prevent access to medicines in poor countries (Smith, 2003), or even hinder innovation (Heller and Eisenberg, 1998). In many countries, including France, we have seen the development of policies aimed at developing the registration of such rights by public institutions carrying out research activities: public research bodies, universities and public engineering schools. As a result, they are obliged to incorporate the ethical dimension into their strategy. This type of restrictive right may in fact run counter to the very logic of open science, on which these institutions are founded (Dasgupta and David, 1994). Our paper is based on an analysis of 14 interviews conducted with industrial managers and managers of public research development structures on the subject of the role of IP in relations between industrial companies and public research institutions.We show that ethical issues are indeed integrated into the thinking of at least some of these organisations, but only to a limited extent. These public organisations will therefore prohibit themselves from a certain number of practices by private companies that they consider unethical, but will not incorporate into their strategy the ability to influence these same practices. However, companies have long incorporated a "negotiation" dimension into patents. Patents are sometimes used to gain access to competitors' technologies (Grindley and Teece, 1997). Similarly, in situations of technological interdependence, companies have sometimes been able to organise themselves and set up collective rights management structures (known as "patent pools") to facilitate access to licences. It may come as a surprise that public research institutions do not make greater use of their now very significant patent portfolios to launch such initiatives in fields such as biotechnology.
In our opinion, one of the reasons for this restrictive use of patents in public structures is the way in which their performance is measured in terms of commercialization. In addition to the number of patents filed and research contracts, the emphasis is placed on the amount of royalties collected (Adnot, 2006). Paradoxically, then, we find ourselves in a situation where public organisations focus on the roles of patents that raise the most ethical questions (the quest for a monopoly, to guarantee exclusivity to the industrialist who will make the investments needed to transform the invention into a product, and the generation of a stream of royalties), whereas private companies quite frequently develop practices designed to limit the perverse effects.
It seems to us, therefore, that this is a good starting point for thinking about the interactions between performance measurement and ethics: the culture of efficiency that seems to be developing in the public sector, particularly through approaches inspired by new public management, is likely to focus behaviour on achieving limited objectives, often chosen for their simplicity rather than for their ability to take account of the main issues. In our view, if ethical issues are to be taken into account to a greater extent, we need to give qualitative aspects back a place in evaluation systems, as well as giving the players concerned the opportunity to promote initiatives that would not have been envisaged when the control system was set up.
References
Adnot, P. (2006), Rapport d’information n°341 fait au nom de la commission des Finances, du contrôle budgétaire et des comptes économiques de la Nation sur la valorisation de la recherche dans les universités, French Senate, Appendix to the transcript of the Sitting of May 10th 2006.
Dasgupta, P. & David, P.A. (1994), “Toward a new economics of science”, Policy Research, Vol.23, 487-521.
Grindley, P.C. & Teece D.J. (1997), “Managing Intellectual Capital: Licensing and Cross-Licensing in Semiconductors and Electronics”, California Management Review, Vol.39, No 2, 8-41.
Heller, M.A. & Eisenberg, R.S. (1998), “Can Patents Deter Innovation? The Anticommons in Biomedical Research”, Science, vol.280, n°5364, p.698-701.
Lea, D. (2006), “From the Wright brothers to Microsoft: Issues in the moral grounding of intellectual property rights”, Business Ethics Quarterly, Vol.16, No 4, 579-598.
Smith, C. (2003), Corporate Social Responsibility: Whether or How?, California Management Review, Vol.45, No 4, 52-76.