From the Chronicle of Higher Education:
U.S. and Australia Compete for Coveted Partnerships With Chinese Higher Education
May 19, 2011, 10:19 am
By David Wheeler
Sydney, Australia—Australian academics are anxiously eying what they see as rising U.S. interest in China. They talk of hearing American accents in Beijing, and they have noticed a real dip in Chinese students at home. They attribute some of that decrease to competition from the United States.
The Innocents Abroad:
A 21st Century Twist of Mark Twain’s Tale
By Jim Castagnera
In Chapter Seven of his famous 1871 travelogue, “The Innocents Abroad,” Mark Twain lies exhausted atop the Rock of Gibraltar. Accosted by yet another Spanish guide, intent on telling him the legend he has heard half a dozen times already, he retorts, “Sir, I am a helpless orphan in a foreign land. Have pity on me.”
If you are an American academic, orphaned from your institution in a foreign land today, don’t anticipate any pity. That’s the gist of Attorney M. Kelly Tillery’s message to his many higher-education clients looking to deliver their product overseas. Warns Tillery, an intellectual-property partner at Philadelphia-headquartered Pepper Hamilton LLP, “Never presume that what is permissible in the United States is permissible in other jurisdictions.”
Says Tillery, who over a long, distinguished career has represented clients ranging from Ossie Osborne to the University of Pennsylvania, “For example, when teaching to locals, your faculty member may want to draw upon local materials. Not all jurisdictions recognize fair use and academic freedom. A use that is legal in the U.S. may violate the law in, say, South Korea or Saudi Arabia.”
The other horn of this dilemma is the issue of who owns the intellectual property your prof creates while researching and teaching abroad. “If he or she creates things, on whose behalf is the work being done?” Tillery asks. “ Who owns it? Is it your university, or the foreign host-institution, or the professor? The local laws will tell you, if you don’t establish the rules ahead of time.”
Tillery’s cautionary comments are critical to an ever-increasing number of American universities. As the New York Times remarked recently, “In a kind of educational gold rush, American universities are competing to set up outposts in countries with limited higher education opportunities. American universities — not to mention Australian and British ones, which also offer instruction in English, the lingua franca of academia — are starting, or expanding, hundreds of programs and partnerships in booming markets like China, India and Singapore. And many are now considering full-fledged foreign branch campuses, particularly in the oil-rich Middle East. Already, students in the Persian Gulf state of Qatar can attend an American university without the expense, culture shock or post-9/11 visa problems of traveling to America.”
Consider but one specific example. The King Abdullah University of Science and Technology (KAUST) is scheduled to open for business on 36 million square meters of Saudi Arabian soil in September 2009. The instant megaversity is buying nothing but the best on the worldwide higher-ed market. KAUST’s major method is an intricate web of inter-institutional partnerships, which can prove highly lucrative for the lucky partners with which KAUST wants to dance. (See the adjacent box.)
KAUST’s partners are many; here are two examples:
• King Abdullah University of Science and Technology (KAUST) and The University of Texas at Austin today announced a research and educational partnership in computational earth sciences and engineering. Under the Academic Excellence Alliance (AEA), the universities will identify and nominate the founding KAUST faculty, establish joint research, and collaborate in the design of the academic curriculum. The value of the agreement to The University of Texas at Austin is about $27 million. That includes $10 million for research collaborations at The University of Texas at Austin, $5 million for research collaborations at the KAUST campus, $10 million for fellowships for students and faculty participating in the project and about $2 million for operations. This innovative approach to institutional collaboration and faculty selection will enable KAUST, a new international, graduate-level research university opening in Saudi Arabia in 2009, to build its academic foundation during the University's first several years of operation. The partnership will also expand The University of Texas at Austin's capacity to carry out basic research and develop innovations that can benefit the people and economy of Texas.
• King Abdullah University of Science and Technology (KAUST), a new world-class, graduate-level scientific research university now under development, finalized an agreement today with Woods Hole Oceanographic Institution (WHOI) to collaborate on marine research projects in the Red Sea. KAUST, which is located along the shores of the Red Sea, is working with WHOI scientists to establish the KAUST Marine and Ocean Research Center, which will provide critical information about ocean ecosystems, fisheries, and water circulation along the Saudi Arabian coast in the northern central Red Sea. One of the first projects will be an assessment of the health of the extensive and vital coral reefs in the region and identification of the environmental factors affecting the system. “This partnership will establish a firm foundation of excellence for KAUST that will help us recruit other scientists and promote our ultimate agenda of scientific discovery,” KAUST’s Interim President Nadhmi Al-Nasr said at today’s signing of the formal agreement between KAUST and WHOI (which announced their intent to collaborate earlier this year). “It will also enrich WHOI’s already prestigious portfolio of scholarship and its reputation as an institution with a reach that extends literally all over the globe.” “The KAUST-WHOI partnership will bring together a large, interdisciplinary group of researchers, each with their own strengths and experiences,” said Dr. James R. Luyten, acting president and director of WHOI. “With this collaboration, we can bring together different tools, techniques, and minds to gain a broader understanding of the Red Sea and its ecosystems. We are proud and excited to be part of this project.”
What, hopefully, have these partner-institutions done, going in, to insure the safety of their intellectual property as the partnership proceeds? “When doing business on the international front, get it all in writing,” advises Tillery. “If a client of mine is embarking on a joint venture, I can tell its administrators what will happen in the U.S. but not in Saudi Arabia or any of the other 200 jurisdictions where American universities might find themselves doing business today. You don’t want to discover after the fact that, let’s say, Saudi Arabian law governs a dispute between you and your foreign partner. To the extent that you can define your respective rights up front in written documents, do it.”
This may seem like obvious advice. But cautions the Philadelphia lawyer, whose firm of 500 lawyers serves clients from offices in seven states and the District of Columbia, “When drafting a contract with a foreign entity, culture and language play into the process in intricate and dangerous ways. Even using translators is difficult. I’ve been on conference calls using interpreters, and I’ve found that it’s hard to deal with IP concepts when you’re dealing with people whose first language is something other than English. I’ve been in a conversation where the other guy talked for three minutes and the translator told me he said, ‘No.’”
By way of further example, he adds, “Just consider the word ‘fast.’ How many synonyms for that little word can you come up with in English? Now, how does it translate into Arabic or one of hundreds of other languages?” Shifting his example from the general to the specific, he continues,
“Assume you’re trying to anticipate future deals. You agree to try out one professor and three courses to see how it goes. You may expand if it works out. Anytime the contract deals with anything more complex than making 20,000 widgets for $20,000, difficulties arise. How do you define success? Is it the number of students? Over what period of time?” Anyone who has negotiated with a potential Chinese partner can probably relate to Tillery’s point. From personal experience, I’ve learned that Chinese negotiators may choose to remain incommunicado for months at a time, until all their ducks are lined up to their personal satisfaction. Once the contract is consummated, their concept of how fast the relationship ought to develop may be equally out of sinc with what we Americans consider an appropriate pace.
Notions of what ought to be included in a contract also may be dramatically different from culture to culture. “A long-term relationship requires absolute clarity of bench marks,” cautions Attorney Tillery. Often, however, Asian partners in particular prefer hortatory language… warm and fuzzy mutual exhortations… in lieu of benchmarks cast in stone. Much more than their typical American counterparts, Asian co-venturers are comfortable with frequent returns to the bargaining table to tweak the terms of the relationship as it develops. While we Yankee lawyers and administrators may deem such renegotiation requests a violation of good faith, if not an outright breach of express contract terms, our non-Western counterparts are as likely to interpret our reluctance as a serious breach of etiquette, if not an outright rift in the fabric of the broader relationship.
One way to deal with this dilemma is to set your own house in order. Even major R1 institutions sometimes have had spotty records, where security of their intellectual property is concerned. For instance,
• In June 2002, two former post-docs admitted to stealing trade secrets from Harvard Medical School’s cell biology department. Jiangyu Zhu and Kayoko Kimbara were arrested in California after absconding with reagents used in the development in immunosuppressive drugs to control organ rejection. The criminal complaint said they also stole information about gene therapies for cardiovascular and nervous-system disorders. Their crime was “all in the family.” The two were married. It was alleged that the couple sent three genes home to Japan to help a biomed company develop antibodies. E-mail was their weapon of choice.
• In 2004 a Texas Tech University scientist was convicted of mishandling bubonic plague and sentenced to two years in prison. He was also ordered to pay a $15,000 fine and $38,000 restitution to his institution. According to university spokesmen, the former chief of the Health Science Center’s infectious diseases department, Dr. Thomas Butler, engaged in “shadow contracts” with drug companies without the school’s knowledge.
• Last, but not least, note the lawsuit filed in 2006 by a biotech company against a scientist at the University in Connecticut. Sequoia Sciences’ suit alleged that Dr. Thomas Wood violated a confidentiality agreement involving “biofilm inhibitor,” when he spoke in July ’06 at a conference of the International Union of Microbiological Societies.
These three quick examples, spanning the past six years and three different, diverse R1 institutions, support the accusation leveled by Tom Mahlik, Section Chief of the FBI’s Domain Support and Counterintelligence Strategy Section in Washington, in my September 2006 article for GG. Mahlik, who leads the agency’s College and University Security Effort, contended that the battle to protect higher-ed IP is “asymmetric,” with the bad guys enjoying distinct advantages. Mahlik told me then that he saw America’s technological superiority slipping away.
Counters Kelly Tillery, “In addition to rules and regulations on IP becoming the norm in higher education, more and more institutions are entering actual, specific agreements with their faculty for IP.” When the enterprise involves a foreign joint-venturer, he continues, the matrix of legal documents must form a triangle, binding the home university, the host institution and the participating profs, and clarifying each player’s intellectual property rights.
As the third of my three examples suggests, more than industrial espionage or personal greed may be implicated in a faculty member’s breach of confidentiality. Notions of academic freedom may cause academics to consider their creative work to be their own property and motivate them to want to share it with the world… or at least with their foreign colleagues.
The professor’s legal right to her syllabi, lecture notes and the like is generally conceded in our industry. Whether such instructional materials ought to be made available to foreign colleagues and partner institutions may be in itself a serious IP issue: are your faculty in-country only until their host-university counterparts are able to deliver the same instructional product themselves? You and your faculty may have differing views on this fundamental question. Just, as I noted at the top of this story, naïve faculty may forget that fair use is not a global concept, some may feel that their mission is to spread their expertise far and wide for the betterment of all. You may need to remind them that while you’re not-for-profit, you’re also not for loss.
The problem is attenuated when original research is involved. The problem is age-old. As early as 1915, the AAUP contended, “The distinctive social function of the scholar's trade cannot be fulfilled if those who pay the piper are permitted to call the tune.” Fully 20 years ago, Professor Rebecca Eisenberg, writing in the Texas Law Review, famously decried the fact that “outside funds often come with strings attached.” She particularly complained that research results often must be kept secret. These views remain grist in the AAUP mill today.
Consequently, Tillery recommends for every partnership enterprise we enter abroad “an engagement document for every actual academic who will do the work.” He explains that we ignore this advice at our peril. “IP issues that are not covered or which are ambiguous lead to the courtroom.”
He adds with a mischievous twinkle in his eye, “As a litigator I don’t mind that. It’s what I do. But, objectively, I wouldn’t wish it on my worst enemy. Litigation is expensive, time consuming… and painful.”
To paraphrase Mr. Clemens, “When sending your innocents abroad, have pity on yourself. Do it right, right up front.”
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