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?