By Alexander Freund, UWFA Grievance Officer 

From 11 to 13 December 2009, some fifty grievance officers and others involved in grievance processes at universities across Canada met in Ottawa to learn about the protection of intellectual property. The three-day CAUT workshop, Care, Custody and Control: Protecting Members’ Correspondence, Documents and Intellectual Property, introduced participants to a broad range of issues that have been disputed between universities and faculty associations and have even been taken to arbitration and the judicial process. Lisa McGifford and Alexander Freund represented UWFA, which was one of forty faculty associations present at the workshop.

Intellectual and legal ownership of documents and ideas has, over the last decade, moved to the centre of disputes between university administrations and faculty associations. At issue is the fundamental question of who owns the emails, syllabi, administrative files, research results, inventions, and other intellectual property created by faculty.  This is especially important now as data networks (such as email systems and servers) are making it easier for employers to have access to this information. Do universities own the documents created by faculty members simply because, as university administrations have claimed, faculty are employees of the university?

Do You Own Your Email?  

The question of access to documents that faculty members create in research, teaching, and service has been open and, to a large degree, unresolved. As Mariette Pilon, CAUT Legal Counsel, explained, access to information and protection of privacy acts at the federal and provincial level lay out general guidelines but do not speak to the particular environment of universities, an environment that rests on the foundation of academic freedom. For academic staff, the question is whether an employer has the right to request documents under the access to information acts and if so, to what degree documents are protected by the privacy protection acts. Universities in the past have claimed that because they have the possibility to access information, they also have the right to access this information. Not so, says CAUT. To learn more about your rights, read the article “Who Owns Your Syllabus?”

Similarly, universities have increasingly attempted to gain control of academic staff’s intellectual property. Academic staff often believe that they own everything they produce and thus need not worry. Without clear language in the collective agreement, however, such rights come under attack.

Who Owns Your Syllabus?  

What would you do if your Chair asked you to give your syllabus and course materials to a colleague who is teaching your course? What would you do if your Dean asked you to hand over all notes you took during a DPC meeting? What would you do if your VP-Academic told you that you had to hand over all of your emails and correspondence that named “Professor X,” and that you were required to do so under access to information legislation? Rather than handing over the requested documents, you would best contact your UWFA office. UWFA can advise you on what kind of documents you need to turn over.

Here is what you need to know to better understand your rights to your files and records.

Academic freedom has traditionally guaranteed that academic staff members’ papers and electronic documents were in their, not the university’s, custody and control. “This tradition is now being threatened,” writes CAUT Executive Director, James Turk, in a memo of 29 September 2009 to all association presidents and officers.

Over the last five years, universities have increasingly claimed that they have custody or control of all documents produced by academic staff. They have argued that universities as institutions fall under new access to information legislation and hence must comply with requests for records. As a result, administrations have demanded notes, emails, correspondence, and other documents academic staff have at their offices and their homes. Who, then, is right – academic staff or university administrations?

Much of this was answered in a recent arbitration case, which John Henderson, Legal Counsel at the University of Ottawa’s faculty association, reviewed at a recent CAUT workshop for senior grievance officers. The University of Ottawa had asked academic staff to hand over all electronic and hard copy correspondence that contained certain keywords. The Association of Professors at the University of Ottawa (APUO) grieved this blanket request, arguing that the university did not have control or custody over most of the documents. Arbitrator Philip Chodos decided in favour of APUO. As a result, a university may ask for and release only the following kind of documents under access to information requests: Documents that are in the control and custody of the university and that are not excluded under the legislation (e.g. teaching and research materials) and that are not exempted under certain provisions of the legislation, such as personal privacy or prejudice to the economic or competitive interest of the institution. That leaves, for the most part, only documents that academic staff create in administrative functions and for administrative purposes. A committee member’s documents for committee work (e.g. an agenda) are in the custody or control of the university, but not the personal notes on these documents (e.g. margin notes on the agenda).

Despite Chodos’s favourable ruling, another arbitrator in three other cases has recently decided in favour of university administrations. The fight for custody and control of academic staff records is therefore far from over. Vigilance, especially in the digital age, is necessary. Should you ever receive a request to provide the administration access to your hard copy or electronic documents, please contact UWFA. See also article 36 Privacy of our Collective Agreement.

Intellectual Property – Know Your Rights  

Increasing commercialization of universities has resulted in administrations’ ever-more frequent attempts to claim ownership of academic staff’s intellectual property. Intellectual property, as David Fewer, lawyer and director of the Canadian Internet Policy and Public Interest Centre, explained at a recent CAUT workshop for senior grievance officers, includes copyright, confidential information, patents, and trade marks. Copyrighted materials are works (not ideas) by authors; these works must be fixed (usually in written form). Copyright does not require formalities such as registration or the use of the © symbol. Often, employers will argue that copyright belongs to them if works are created by their employees in the course of their employment. In the unique university environment, however, this rule does not apply. Confidential information consists of ideas that have, according to Fewer, the “necessary quality of being confidential” (blank pages, for instance, would not have this quality) and are communicated in circumstances “imparting an obligation of confidentiality.” Patents must be novel, useful, and non-obvious, and they must be registered. Trade marks are words, logos or combinations in “distinguishing guise.” They are used to distinguish one’s wares or services from those of others in the marketplace. No registration is necessary, but if you do not use it, you lose your right to it.

Sam Trosow, a professor of law and information and media studies at the University of Western Ontario, echoed Fewer’s statement that it has been a long-standing practice to see academics as the owners of works. As universities become increasingly interested in commercialization, they have become interested in academic staff’s intellectual property. Whenever universities attempt to seize control of academic staff’s intellectual property, academic freedom is at stake. If universities own intellectual property, they can control, for instance, the dissemination of research results.

To learn more about your IP rights, refer to article 17 of the collective agreement. Should the employer contact you about signing over your IP rights, please contact UWFA.