Advocacy about intellectual property at Western

Stephen G.A. Pitel

Since the spring of 2017 Western has been preparing a new policy to govern the ownership, control and commercialization of intellectual property. The current plan is for it to be approved by the Board of Governors in April 2018. To protect the interests of our members, UWOFA has been engaged in an advocacy campaign, seeking several changes to the proposed policy. Some of these changes have been made and others remain the subject of debate and discussions.

The initial draft of the policy was unclear as to its application to librarians and archivists. In response to UWOFA's submissions, the policy now addresses these members explicitly. Consistent with the Librarians and Archivists Collective Agreement, it provides that intellectual property created by a librarian or archivist in the course of his or her employment duties shall be owned by the librarian or archivist.

The initial draft of the policy deleted the following long-standing language: "The University recognizes as a fundamental principle that it should maintain complete freedom of research and unrestricted dissemination of information. Research done solely in anticipation of profit is incompatible with the aims of the University." UWOFA considered this principle to be quite important and we requested that it be retained, and it has been restored.

The most important concern for UWOFA is that the policy as proposed requires the "full and complete disclosure to the University" in all cases in which intellectual property will be used for "commercial gain". This includes earning royalties, even when 100 per cent of those royalties are to be retained by the member. The effect of this provision is that members must disclose the creation of every book or article which is contemplated to generate even a minimal amount of royalties.

In response, UWOFA has raised two distinct concerns. The first is that this requirement cannot be imposed in a unilateral university policy. If it is to be imposed, that can only happen through negotiation of such a provision in our Collective Agreements. As they stand now these Collective Agreements contain detailed provisions on the disclosure of intellectual property. They do not require the disclosure proposed by the policy. In particular, there is no requirement to disclose the creation of intellectual property which, if commercialized by the member, would not result in any revenue sharing with the university (such as the publication of a book or book chapter which will earn royalties). Western should not be permitted, through this policy, to impose conditions that were not negotiated in the Collective Agreements. This is an important point of principle.

UWOFA's second concern is more practical. Whether the requirement is in the Collective Agreement or a university policy, its scope is too broad. We have argued that "commercial gain" should be replaced with "substantial commercial gain" or "commercial gain (beyond a de minimum amount)" so that small amounts of royalties do not trigger this reporting obligation. In our view, actual or potential royalties in a small amount are simply not true commercialization of the intellectual property and should not be treated as such.

Another concern is that the proposed language gives significant latitude to the Vice-President (Research) to vary the proposed procedures and to adopt additional procedures. While we understand the efficiencies in this process, as opposed to requiring that the Board of Governors approve all changes, we consider that in light of the importance of these procedures there should be explicit recognition of the importance of consultation. We have suggested that this latitude explicitly require appropriate consultations with those affected.

UWOFA has raised these concerns with the authors of the proposed policy, with all members of the University Senate and with the Board of Governors. It is important for us to make clear the effects of what is being proposed on our members and to do what we can to improve the policy before it is adopted. This is just one of many technical issues UWOFA engages with over the course of an academic year. While issues of academic freedom and human rights get more of the headlines, these technical issues can have a significant impact on our working conditions and our potential for self-fulfilment. 

Stephen Pitel is president of UWOFA and a professor in the Faculty of Law