مسائل مربوط به مالکیت: مالکیت معنوی، خصوصی سازی و نوآوری

This paper discusses a conflict between private defence firms and government procurement agencies related to Intellectual Property management issues that emerged during the privatization process of the main UK defence research establishment. Our analysis questions a common argument found in studies of the defence industries: that a close confluence of interests exists between private suppliers and their public customers, so much so that the boundaries between public and private actors become blurred. Instead, we argue that the tensions between private suppliers and their government customers are jeopardizing the success of process innovations in defence procurement that rely on “partnership” and collaboration between defence and government customers and users.

Public policy analysts who have endeavored to establish a sharp distinction between public and private organizations1 have been critiqued on the basis that such distinction does not reflect real-life organizational complexity and subtlety (Nwankwo, 1996 and Perry and Rainey, 1988). Distinguishing between public and privatized establishments is not an easy task. The simple criterion of ownership has been dismissed: one cannot assume that ownership and control are the same thing (Majone, 1994).2 In the area of concern to this paper, research establishments, ownership is no longer seen as a relevant variable to understand their behaviour and performance. Crow and Bozeman (1987) argue that ownership can no longer be used as a criterion to establish a typology of R&D laboratories, maintaining that the traditional distinction between government, private and university research laboratories is outmoded and does not help understand the changing circumstances of research organizations: ownership is no longer relevant in a context of blurred boundaries between the public and private spheres. Awareness of imprecise boundaries between the two domains is not new. More than three decades ago John Kenneth Galbraith argued that the public–private distinction was either very tenuous or simply non-existent. This was particularly the case in areas like defence procurement (Galbraith, 1985, p. 322). The collaboration or collusion between private industrial suppliers and their defence customers has been reiterated by other analysts. Defence has been seen as a special kind of business, in which industry has developed a pernicious intimacy with its customers in government, influencing military spending, inhibiting adequate cost control, and therefore, proper accountability (Adams, 1982, Markusen, 2003, Lumpe, 1999 and Hartung and Marlin, 1985). From a completely different perspective, a closer collaboration between customers in the defence agencies and their industrial suppliers has been seen as a central requirement to improve the management and delivery of defence research and production programmes (Cohen and Noll, 1994). For instance, collaboration and “partnership,” delivered through “Integrated Project Teams,” are key concepts in the British effort to implement a programme of defence procurement reform, through the so-called “Smart Procurement Initiative” (Kemp, 2000, Dowdy, 2000 and Dowdy, 2001), which has become a “flagship” process innovation of the UK Ministry of Defence. All these perspectives share two common traits. First, they implicitly assume or explicitly argue that ownership is secondary in explaining organizational behavior. Second, they argue or assume that a confluence of interests exists between the industrial and customer organizations involved in defence procurement. This article examines these two propositions with reference to the management of Intellectual Property at the interface between a government agency in the process of privatization and large private defence suppliers in the UK. We show that (1) contrary to conventional wisdom such as that advanced by theorists noted above, long-term linkages between private suppliers and public customers do not necessarily lead to converging interests and collusion and (2) that ownership matters when explaining the behavior of the organizations involved in defence procurement. The policy outcome, we argue, is that the privatization process has hampered the attempts to introduce substantial innovations in the defence procurement process (the so-called “Smart Procurement Initiative”). Additionally, this paper contributes to the literature on the issues raised by the privatization of Government Research Establishments (GREs) by presenting a new angle: the unexpected challenges that privatization has presented to the management of data under the control of the laboratories. Our focus will be on the management of Intellectual Property (IP) in a defence GRE. Because of the heightened perception of the importance of knowledge assets in company performance and the generation of welfare (Teece, 2000), the generation and management of knowledge and its associated Intellectual Property Rights (IPRs) have become a key element of the inter-organizational collaboration that characterizes defence procurement. Our case analyzes the relationship between defence prime contractors, the government defence research establishments, and the defence procurement organizations. We focus on the difficulties that the Defence Evaluation and Research Agency (DERA) (the main UK Government Research Establishment in the defence field) privatization process caused in relation to the ownership of data that it had collected from private firms while operating as a Government agency. These difficulties have impinged on the process of procurement reform – Smart Procurement3 – initiated in the UK. Collaboration between industry and its Government customers is a cornerstone of this process of reform. Such collaboration, however, requires sharing of the IP embodied in project proposals, draft designs, engineering and technical data, manufacturing processes, etc. This paper argues that, as a result of the IP management problems generated by DERA's privatization process, the major UK defence manufacturers have become wary of sharing technical information with Ministry of Defence departments and agencies. This comes precisely at a time when increased data sharing is called for by the process innovations that Smart Procurement is trying to implement.

We can distinguish three main areas where conclusions can be drawn from the above discussion. First, our research has shown evidence that the problems surrounding the management of IP during the process of privatization of DERA have led to increased distrust between supplying firms and their defence customers. The privatization of a GRE has affected the relationship between private (defence firms) and public (the Defence Procurement Agency) organizations that were not directly involved in the DERA privatization process. 15 Even as the status of DERA was changing and could be presented as an example of an organization moving in the grey area between public and private status, there is far from being a confluence of interests on both sides of it. Instead, a thorny situation has developed between officials of the Ministry of Defence and corporate IP and commercial executives on the issue of how IP has been managed throughout DERA's privatization process. This in turn has significant implications for how the Ministry of Defence will be able to implement its desired range of procurement process innovations. DERA's privatization has implied a change in the structure of the UK defence market with the emergence of a new corporate competitor that bases its business model on its knowledge capital and research facilities. In this framework, defence firms that were already paying growing attention to management of their IP as a corporate priority have found themselves entangled in an argument with their main customer on IP issues. One immediate consequence is that the firms are becoming increasingly careful with their IP protection policy, and that IP issues are attracting ever more scrutiny in contractual negotiations. This evolving attitude is bound to have an effect on the operation of the new approaches to procurement and project management. “Smart Procurement” is based on a partnering approach to project management, based on the sharing of information within “integrated project teams” formed by suppliers, client representatives and final users. Yet, main defence firms are becoming wary of sharing their IP with their Government customers and unless clearly mandated by contractual conditions carefully negotiated beforehand, the flow of information within the project teams will become less fluid. Second, we have provided an example of the potential conflicts of interest that the privatization of GREs can generate by virtue of the privileged access that the research establishment can gain to data with potential commercial value. This is an area that has received relatively little attention, 16 but the results of our study support the findings from the limited research that has been carried out in addressing the issues raised by the privileged access to data of government agencies and organizations operating as commercial concerns. For instance, Whelan has showed that despite yielding improved management efficiency, contracting the operation of the UK National Physics Laboratory (NPL) to a consortium of organizations including private firms caused difficulties ( Whelan, 2000). In particular, NPL as the British authority in charge of managing the National Measurement System, routinely exchanged information freely with other national measurement authorities. With NPL operating as a commercial organization its foreign counterparts feared that NPL could exploit this information for its own benefit, and became reluctant to share data and collaborate with it. Moe has argued that in the US “federally funded research and development centers” (hybrid organizations operated privately to carry out R&D for government), face conflicts of interests related to the their privileged access to government-to-government information, “which may be difficult to insulate from private partners involved in for-profit activities” ( Moe, 2001, p. 296). What these cases and our own analysis have in common is that they present problems that emerge when information to which the laboratories have access to carry out their public tasks can also be used for commercial purposes. Our paper has analyzed in some detail how conflicts over the control of information have created unexpected difficulties with the privatization of a GRE. In our case, the potential conflicts of interest emerge in relation to the access to information that the privatized laboratories can control by virtue of their continuing assessment and evaluation work on behalf of government and their involvement in collaborative research work. It is the access to information and data that is at the root of the conflict and that has the potential to generate mistrust. This situation has an important policy corollary; namely, the need for GRE privatization initiatives to develop IP management guidelines and structures to ensure fairness of use regarding private data to which the research establishment may have had or is likely to have access. At least for the UK, as the pressure to commercialize the work of its defence laboratories under Government's current diktat that Government-funded research should “benefit UK plc whenever possible” (Firn, 2004), the importance of clear IP management guidelines is reinforced. As Crow and Bozeman had cautioned “more forethought in policy and institutional design” is needed when dealing with research policy issues (Crow and Bozeman, 1987, p. 337). Third, our study shows that ownership matters. DERA was a public organization whose main objective was to discharge its obligations towards the Ministry of Defence, and which had to follow the rules governing the activities of Government agencies. While DERA and its predecessors were still public agencies, private firms were not particularly concerned about the use that DERA could make of the IP to which it had access. When part of DERA was turned into a firm and partly privatized (with the objective to proceed towards a full privatization) the rules of the game were altered. Defence firms who had delivered reports and technical data to DERA in the past became concerned about the potential use that the newly created QinetiQ could make of this information. As a commercial organization QinetiQ is to be oriented primarily to the creation of value for its shareholders, and although Government still retains a controlling stake, the company is likely to fall soon into full private ownership.17 However, once the privatization process of DERA was set in motion, difficulties rapidly emerged as the data and information in the hands of a public agency were to be transferred, de facto, to a firm increasingly acting as a commercial enterprise and in the process of being fully privatized. It is the private control of the IP residing at QinetiQ that has led to a confrontation between the main defence suppliers and their public sector clients. This conflict means that, at least in the British case, there is a line separating private industry from government. We cannot extrapolate the British situation to other national contexts with different organizational cultures and relationships between industry and government. Yet, this case shows that even in a context characterized by a small and closely knit community and a government procurement policy emphasizing private-public partnerships, elements both conducive to the blurring of the distinction between private and public agents, private industry and government emerge as clearly separated and, at times, conflicting entities.