A conference presented by  
The Canadian Association of University Teachers (CAUT)
 
Fairmont Château Laurier Hotel
Ottawa - October 27-29, 2006

I meant to post this last month, but didn’t get a chance. The Canadian Association of University Teachers (CAUT) held a conference in Ottawa this October on the impacts of intellectual property (IP) on the university. I caught one day of the three-day conference and found most interesting the presentations that lay out the complex, over-laying legal jurisdictions and social norms that govern intellectual property.

For example, Paul Jones, a professional officer of CAUT, addressed the Copyright Act – rules that are set out in statute, custom, university policy, contract, and in collective agreements. There are three main sources of ownership in the academic environment: common law, institutional policy, and collective agreements. Dissemination of knowledge all depends on ownership, therefore intellectual property is a crucial issue in the university today.

Looking at a 1999 baseline from Stats Can, Jones showed how research in the university was overwhelmingly researcher-owned just six years ago. This trend is being “chipped away,” according to Jones, as he demonstrated with examples of the new language of research at the university: “new assessment criteria” have been introduced prioritizing IP as “evidence of scholarly achievement.” There are publication restrictions on new research, where in some cases professors must consult with their VP prior to publication to ensure that there is no potential patentability of their work; professors are not allowed to disclose research for up to 12 months while IP claims are pending patents; research must be disclosed as opposed to the once-autonomous decision of the researcher on whether or not to publish; and finally, the university shall hold copyright instead of the researchers themselves.

Why? IP a Salvation: Due to chronic under-funding, universities are desperate for new income streams.

Why? IP as Ideology: A commercial interest underpins these changes, and because the university perceives a resistance by researchers to commercialization, they must take over the patent and copyright holding privileges themselves.

However, IP is not salvation: less than 0.1% of total university income is derived from IP commercialization. Also, most academic work simply can’t be propertized. IP also encourages secrecy and stifles innovation, which conflicts with the public interest. Resistance to this IP agenda can be found in the university – genomics researchers are attacking co-funding schemes that privatize their research; Creative Commons licenses are being applied to scholarly publications; and through collective bargaining, gains are being made.

Jones concluded by stating that work must be properly categorized: Shakespeare’s sonnets should be seen as a work of art, not property; and a heart valve should be seen as a life saving device, not as a proprietary tool.

The other highlight of the afternoon was Professor Samuel Trosow’s presentation, “Intellectual property, commercialization, and the future of academic work.” Trosow’s from the University of Western Ontario and he began his presentation with the “basic” question he contends should provide the foundation for this discussion: does intellectual property contradict the purpose of the university? He answered with an unequivocal “Yes.”

Trosow cautioned that while copyrights and patents are slightly different, they can be analyzed together. The logic of patents differs from copyrights because patents are more intensely focused on “originality” – therefore the “doctrine of anticipation” makes it more important to protect knowledge at every stage. This doctrine protects the “novelty” of a discovery by refusing to grant patents to those that resemble other claims. Copyright, on the other hand, does not hinge on originality, but rather particular assemblages of words and expressions of ideas.

Generally, Trasow explained, the author of a work, unless done in the course of employment, is the first owner. This ownership is extremely assignable – every aspect of it, in fact – performance rights, time period of use, geography of use… 13(4) of the Copyright Act gives broad assignable rights. This easy assignability separates workers from their means of production.

There are two different levels of policy analysis required here:
(1) General protections: user rights, penalties, infringements, etc. – this is where much of the common ground between academics occurs.
(2) Who owns these rights? How do we allocate these rights? – these are points of general divergence.

These issues of policy analysis speak to a broader problem at the university: the commercialization of the institution. The university has become a market for corporations. For example, the university is a huge consumer of proprietary software; students are seen as “customers”; transition to use-pay system; heightened managerialism; use of more casual labour; gains in intellectual property claims to replace labour; and greater reliance on corporate funding.

The root problem is not the “bad people” running the system. This is a structural problem – Bayn Doyle, U.S. case law – gave private patents to publicly funded institutions.

But is commerce a need in itself? Or should it be serving some public purpose? More coherent policy analysis is needed in this area.