Students’ Intellectual Property

A public university wants to claim the intellectual property of its students’ design of a passive solar house that a university in a neighboring state wants to erect as a cabin for visiting faculty in one of its research stations. The intellectual property claim would prevent the latter university from building multiple copies of the house without additional payment.

Architecture is, in many respects, inseparable from property. As Jean Jacques Rousseau said in his 1754 Discourse on Inequality, “The first man who, having enclosed a piece of ground … (and) saying This is mine … was the real founder of civil society” and the founder of architecture as well, for a building requires that its owner controls the plot of land on which it stands. Architecture has a less stable relationship with intellectual property, however.

We can pace out and mark the boundaries of a piece of real estate, but how do we define the boundaries of an idea or a design? We cannot replicate a piece of land; by definition, each parcel of property remains unique and capable of ownership. But given the almost infinite combinations of forms, spaces, materials and products that constitute a building, and the ability to construct replicas of it from the same set of drawings, how much must change in a design before one differs substantially from another?

The home-building industry highlights this problem. That industry depends upon standard home plans, widely available on newsstands and the Internet and capable of purchase from the plan providers who hold the intellectual property of their designs. At the same time, home builders constantly modify those plans to fit particular site conditions or home-owners’ needs, and at what point does that become a new design, a unique piece of intellectual property capable of replication without having to pay the original plan provider?

This question becomes even more complicated when considering the intellectual property of students’ work. In this case, the students’ design of a solar house as part of a group project in school makes it almost impossible to say whom among them owns the intellectual property. Which student’s ideas define the unique characteristics of the design? And do they know, for certain, that no one else has ever come up with essentially the same design, since architecture – unlike inventions – almost never gets patented? The primary protection of a design comes, not from the patent office, but from its being a unique response to a particular site and client and so, almost by definition, unrepeatable.

To get past some of these complications, the university here wants to claim the intellectual property of its students’ work to ensure that the neighboring state institution does not replicate the students’ design multiple times without their home university – a presumably, their home department – reaping some benefit. At first glance, this seems like a reasonable precaution. Why wouldn’t the university want to protect their students’ work and to ensure that others don’t build more than one copy without permission and some form of payment?

But setting up something as property also puts in place the prospect of “taking” property and the conflicts that arise from that. As Rousseau wondered, “from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: … you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.” In other words, the very establishment of property leads to horrors as well as honors, misfortunes as well as fortunes. And that becomes particularly unfortunate when dealing with intellectual property, which can put unnecessary boundaries around ideas and unreasonable limits on discoveries that have widespread benefits.

That might lead us, in this case, to ask: How much should the students’ design seek protection, not under intellectual property laws, but rather under the requirements of academic publishing, where acknowledgement of sources defines the “payment” one colleague gives to another, and where the lack of such acknowledgement and the resulting claim of plagiarism has far more dire consequences for those who might steal an idea? In other words, how much, to paraphrase Rousseau, do the fruits of the designer belong to everyone and a design idea belong to us all?

Infrastructure versus architecture

A public utility plans to run high-tension lines next to a college containing a number of important works of architecture. The power poles and wires would also obstruct the distant view of a main building on campus, which the architect purposefully designed to be seen as people approached from afar. The utility claims that that location had the lowest cost, and the college has taken the utility to court to stop the installation of the power lines there.

We often think of a utility in terms of the publically regulated companies that provide us with the water, heat, and power we use in our daily lives. But the word “utility” has a different meaning in ethics, and understanding that difference can help resolve this dispute. Ethically, utility means the usefulness of an action, and it leads us to ask, of any situation: did it produce good consequences or bad, and if so, for whom and how many? Utilitarianism, one of the dominant modes of modern ethics, has “utility” as its root word, and it can prove useful in sorting out conflicts like this one.

Among the various types of utilitarianism, the distinction between hedonistic and ideal utility might shed the most light here. Hedonistic utilitarians judge the consequences of an action according to the pleasure it brings or the pain it avoids. In the case of this power utility that wants to route its lines in the most cost-effective way, the reduced expense to the company and presumably the reduced rate increases to customers that result from it, produces the most pleasure, if measured economically.

Ideal utilitarians see things differently. They argue that we determine something to be good or bad for reasons that transcend simply pleasure or pain. A good consequence for an ideal utilitarian would factor in intellectual, aesthetic, or even spiritual values, and not just those related to physical pleasure or economic profit. That distinction has obvious relevance to current political debates. Those who would willingly cut government spending on what they see as extraneous activities in order to keep taxes as low as possible clearly fall into the hedonistic camp, even though such “conservatives” might not like being branded as hedonists. Meanwhile, those who willingly pay more taxes in order to support public benefits such as parks, schools, and arts and cultural organizations just as clearly fall into the idealist camp, a description that might also rub some “liberals” the wrong way.

In the situation here, the power company has made a hedonistic argument: run the power lines along the lowest-cost route to keep ratepayers’ increases down. Meanwhile, the college has made an idealist one: the aesthetic value of its buildings makes their visual disruption by power lines an unacceptable consequence. These two positions may seem irreconcilable, but not so, according to the 19^th century philosopher, John Stuart Mill. He argued for a middle ground, that while pleasure matters to people, there are higher and lower pleasures. The pleasures of the body and the profits of marketplace, for example, remain of lower quality than the pleasures of the mind and profits of cultural activities, which Mill saw as having a more enduring and ultimately more satisfying nature.

To the hardheaded CEO or a hard-hearted conservative, such sentiments may seem cloying. When the bottom line becomes the primary determinant of all value, intellectual, aesthetic, and spiritual values have little to do with the utility of an action. But ideal utilitarians and those who accept Mill’s middle ground have a compelling case here. The slightly increased cost of re-routing the power lines cannot compare to the irreparable damage to the college’s campus or the visual disruption of peoples approach to it that the intended location of the power lines would cause. The rate increase that might come as a result of routing the lines would affect only the ratepayers and only once; meanwhile, the impact of the proposed route would affect the college’s faculty, staff, students, and visitors for a very long time. Based on the simple utilitarian calculus of what brings the greatest good to the greatest number, apart from one’s hedonistic and idealistic leanings, there is no question that the greatest utility stems from the utility moving its lines and respecting the approach and aura of the campus.

Breaking Interview Rules

The selection committee for a major museum commission required that the architects come to the interview to talk about their relevant experience and qualifications for the project, without any design. All of the architects did as required, except one, who hand-carried into the interview a model of his design, and who subsequently received the commission and did an exceptional building.

In an interview, when is it acceptable to break the rules of a selection process and when is it not? On one hand, ethics tells us that being good and doing what is right usually means following the rules. On the other hand, aesthetics suggests that creativity often entails breaking the rules in order to achieve something new. So how do we balance ethics and aesthetics, cooperation and creativity? The answer to such a question depends, in part, in how we think about ethics.

Those who measure the ethics of an action according to its consequences might say that this architect did the right thing. His decision to break the rules and bring a model to the interview was a good one – at least for him. And, since he did an exceptional building, it proved to be a good one for the client and the people who use the facility. Utilitarian ethics asks that we consider the greatest good for the greatest number, and in that sense, the greatest number – the many users of the building – did receive the greatest benefit with the selection of this architect.

That brings us to another way of thinking about ethics: Kant’s categorical imperative that we judge the rightness of an action according to whether or not we would want it to be universal. If we let one person break a rule, Kant would argue, then we have to let everyone break that rule. You could argue that every competitor, in this case, was equally free to ignore the request of the selection committee, although that committee did not say that its interview requirements were just a suggestion or that respecting them was voluntary. Which raises the question of where responsibility in this case lies. In society at large, we not only hold people responsible for obeying the law, we also hold officials responsible for enforcing it, and so, by awarding the commission to the architect who ignored their requirement, the selection committee ended up rewarding the very behavior they did not want, which is not a good signal to send at the beginning of an architect-client relationship.

Clearly, this architect so impressed the selection committee that they overlooked the very requirements they had imposed. And, because the architect produced a brilliant building, you could argue that it doesn’t matter what happened during the interview. If something ends in great architecture, do the means of getting there really matter? That question echoes the disconnection between aesthetics and ethics that has existed in Western countries for at least a century. Good art comes from good artists, who may or may not be good people, and history offers us plenty of examples of this, of despicable behavior on the part of those who created delightful masterpieces.

It matters, of course, what rules get broken. Ignoring a request by a selection committee does not compare with, say, violating a law or telling a lie. Ethics demands that we make distinctions between unwise actions and illegal or unethical ones. In this case, no one other than the architect himself would have been harmed had his decision to bring a model to the interview backfired on him and led to his disqualification. Which also helps explain why we accept a degree of separation between aesthetics and ethics. A painter who takes an aesthetic risk in a painting does no harm except perhaps to his or her own reputation, and so healthy societies accept and even encourage such violations of the rules in order to realize something new and important.  

So we can laud the architect for taking a calculated risk that paid off and the selection committee for picking a talented architect who produced a noteworthy building that many people enjoy. Consequentially, this all was to the good. But situations like this raise the question of what kind of rules we impose upon creative people. Suggestions and even requests seem reasonable, especially given the limited space and time of interview processes, but prohibitions may become a prescription for some to purposefully ignore them, for good or bad.

Privacy

A prospective client has several architects interview for a project with the presentation materials of all of the architects on display in the room and visible to each other during the interviews. The client also has the other architects wait in an adjacent space within earshot of the interviews, so that each can hear what the others say. What should the competing architects do in such a situation?

Among the many functions of architecture, one of the most important involves the creation of visual and auditory privacy. Architects create discreet spaces for people so that they can go about their daily activities without worrying about unwanted eavesdropping or undesired snooping on the part of others. This ranks as one of the signature failures of modern architecture, with its open spaces that flow into each other, often with little or no visual or auditory separation. While that served, in some respects, as a critique of Western notions of privacy and perhaps a reminder of how some traditional societies teach their member not to hear or see what they are not supposed to, even if plainly visible or audible, the lack of such separation in especially the modern workplace has caused more harm than good.

The lack of privacy for modern architects competing for a commission becomes particularly ironic in that regard. While most architects’ offices have relatively open floor plans because of the need for collaborative studio space, there remains a need in even the most-participatory workplace for some visual and auditory separation. So why did the client in this case not grant that to the architects interviewing for the commission? It is possible that the client wanted to make a point: either that privacy didn’t matter to him or that it did and he wanted to drive that point home by making the architects experience the lack of it. At the same time, this particular client, from a non-Western culture, might have had different view of privacy. In cultures where people often live in cramped quarters or in settings without separate rooms for sleeping, for example, people can have an extraordinary ability to block out what they should not see or hear. They have psychological walls and doors equivalent to the physical ones so necessary in most Western countries.

Which brings us to the ethical dilemma of the Western architects competing for this commission. Should they have excused themselves from listening to their competitors and left the room to give their colleagues the privacy that they might have wanted themselves? Should they have accepted the situation and stayed, but actively not listened to their competitors’ presentations and not looked at their competitors’ boards? Or should they have taken full advantage of the circumstances and altered their presentations to have a competitive edge over their colleagues? Western ethics offers a clear answer to this with the golden rule of doing unto others what you would want others do unto you. If you wouldn’t want others to take advantage of you, you should not do so to them, and so the third option, while possibly economically advantageous, is ethically wrong. More to the point, it is self-defeating, for once architects get known for taking advantage of colleagues, the most valuable asset they have – their reputation – can quickly become a liability.

Of the other two options – leaving the room or consciously not listening to the other presentations – the right thing to do depends upon the collegiality of the competitors. They could agree, as a group, to stay and carry on their own conversations among themselves, drowning out the sound of each other’s presentations and so creating auditory privacy where it didn’t exist in fact. Or, if they could not agree, the right thing – the ethical thing – for each architect to do if feeling ill-at-ease with the situation would be to leave the room until one’s time to present. That, of course, might put the architects who leave the room at a competitive disadvantage over those who stay and listen, but maybe not. Often in a competitive situation, the advantage lies with those who do not do what others do. And, given the lack of sensitivity of this client to the comfort level of his prospective architects, not getting this commission might be the best result of all.

Welcome

I am a writer of books and articles, mainly about architecture and ethics, and so I enter the world of blogging with some trepidation, not knowing if my 30 years in print publishing will translate well on the web. I leave that decision to you, my readers, to make. What prompted me to start this blog was the arrival of my new book, Ethics for Architects, released in December 2010 by Princeton Architectural Press (www.papress.com/html/book.details.page.tpl?isbn=9781568989464). I realized, when I saw it in print, how much I missed writing about ethics, and so I decided to keep on doing so through this blog. The book, as you will see, contains 50 case studies of ethical dilemmas that architects and designers have told me over the years, with my analysis of how to think about and act in response to each situation. I hope, with this blog, to continue that format: describing an ethical dilemma and assessing what it means and what to do as a result. I also hope to learn from you, my readers, and so I encourage you to share your thoughts about the dilemmas described here and to suggest new dilemmas you have encountered or witnessed with others. Ethics, like architecture, is best when done in a participatory way, so do write when you can.