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CAUT Bulletin Archives

April 2004

Landmark Academic Freedom Decision at UBC

"We won." Two simple words left on Professor Mary Bryson's voice mail in February 2004 summed up an epic struggle to protect academic freedom, defend faculty control over course material and assert union bargaining rights.

The message, from the University of British Columbia Faculty Association's lawyer, arrived 16 months after Bryson first raised concerns about the university administration's efforts to have her sign away copyright in a distance education course she was helping to develop. Bryson's initial misgivings turned into formal grievances and the grievances led to arbitration under the collective agreement. When the dust settled from the adjudication process, Bryson and UBCFA were handed a stunning win that has the potential to strengthen academic freedom rights for academic staff across Canada.

"We are thrilled by the decision," said CAUT president Victor Catano. "It's hard to know where to begin. The decision identifies copyright ownership as an inherent right of faculty, ties that ownership to academic freedom, affirms the role of associations in negotiating intellectual property rights with university administrations and upholds in no uncertain terms the right of faculty to defend the collective agreement. This is a remarkable achievement."

Elliott Burnell, president of UBCFA, described the decision as "clear and unambiguous in upholding the copyright rights of faculty members and the bargaining rights of the faculty association."

The Bryson/UBCFA arbitration arose from a conflict that is occurring at universities and colleges around the country. Academic staff, through tradition and contract, have owned the copyright in the course material they create. This ownership reflects the close connection between a professor and the courses they teach, and because it ensures that the professor will be the ultimate decision maker about course content, is an important component of academic freedom. It is also a model of ownership that, with the growth in online education, is under attack.

The high cost of online education puts enormous pressure on universities to reconfigure distance learning projects to diffuse courses in the digital environment. One approach to cost-cutting is to "unbundle" or "de-skill" teaching. In the same way the industrial production line divides the job of building a car into many separate functions, digital technology can be used to break apart a university course and the job of teaching it. Instead of a course being the complete work of a professor, the various component parts of the teaching job (course development, delivery, revision and evaluation) are being separated from individual faculty members and assigned to a variety of different employees. And, just as unbundling of the teaching profession is being accomplished, universities are using the opportunity to make a claim for ownership of course content. Because faculty ownership hinders the ability of the employer to shape, revise and sell courses, many administrators view it as an obstacle to be overcome.

At UBC this battle played itself out over the development of, ironically, a new Master of Educational Technology program. In May 2002, Bryson, a tenured professor in the department of educational and counselling psychology, accepted the responsibility for developing a course for the new program. To this task she brought considerable practical experience and theoretical knowledge, having previously developed online course material and conducted extensive scholarly research on new teaching technologies.

In September 2002, after several months of work on the course, Bryson received an e-mail from the administrator overseeing the program. The e-mail asked her to sign a contract transferring rights to "course materials" to the university. The contract required that Bryson acknowledge the university could use the materials without attributing authorship and could revise and modify them or use them in a different context, without the author's consent. The contract further outlined that the university, not Bryson, would decide which materials were ultimately used in the course.

"When I saw the contract, my first thought was of academic freedom, not ownership," Bryson said. Until being presented with the contract, she said that she had never really considered course content to be property.

"Faculty often work collaboratively to develop this material, and even when it is done individually, my understanding was that it was part of the broader pool of human knowledge, not something that was amenable to ideas of ownership," she added.

Bryson said that although intellectual property rights were not at the forefront of her mind as she looked over the contract, the connection between copyright and academic freedom reluctantly materialized.

"Under the agreement, what was to stop the administration from altering or censoring my work? Because the administration was treating the material as property, my unhappy response had to be to view it in the same way and assert my rights in it."

Throughout September Bryson and the administration grappled over the terms of the contract. With no resolution in sight, she turned to the faculty association. The association, alarmed by the threat to academic freedom, sought a way to defend both Bryson and the broader interests of academic staff.

In a memo to faculty in late October, the association announced: "With regard to the issue of a separate contract governing the teaching of courses in the MET program, the Association's position is as follows: The Association is the sole bargaining agent for its members. It is, then, inappropriate for the University to ask members to sign a separate contract, with distinct provisions, in order to teach any courses - online or otherwise - as part of the faculty member's regular course-load. If the University believes that a particular program or course requires agreement on specific provisions not included in the Collective Agreement, then the University should approach the Association regarding collective bargaining of such provisions. We will be advising our members of this position as well, and will continue to recommend they not sign any individual contracts with the University."

Bryson, following this advice, refused to sign the contract and was removed from the assignment to develop the course. The faculty association grieved the employer's actions under the collective agreement.

James Dorsey, Q.C., a senior member of the British Columbia Bar, was appointed to arbitrate the dispute. He was asked to resolve whether the employer violated the exclusive bargaining authority of the union when it negotiated directly with members over copyright ownership in the Master of Educational Technology program. He was also asked to decide if the employer violated the no discrimination article of the collective agreement when it removed Bryson from the course as a result of her refusal to sign the contract.

In a meticulous 97-page decision handed down on Feb. 18, Dorsey found for the association and Bryson on all counts. He held that the scope of the union's exclusive bargaining authority included the right to negotiate about matters related to the copyright ownership and that the employer, by negotiating directly with members on this matter, violated this right.

He also ruled that the decision to remove the assignment from Bryson constituted punishment for her refusal to work under terms different from those found in the collective agreement and as such was a violation of the agreement's no discrimination article.

In and of themselves, these are remarkable statements, but what makes the decision so important is the manner in which Dorsey grounded his reasoning in the specific context of the university.

In his examination of whether the association's bargaining rights had been trammelled, Dorsey found, "Because of the importance of ideas to academic freedom and the presumption of first ownership of copyright in faculty, issues related to copyright are part of the core of the relationship between employer and employee. They are part of the conditions of employment."

By identifying academic freedom as the foundational principle of the collective agreement and finding that questions of copyright are closely tied to both academic freedom and scholarly work, the arbitrator crafted a decision that, if upheld on appeal, will serve as a landmark in the struggle to protect a model of teaching where faculty, not administrators, determine the content and spirit of courses.

The university has said it will appeal the decision.

"The litigation process is inherently demanding, but I could not accept the request to sign away my copyright," said Bryson, who spent weeks mired in time-consuming preparation for the arbitration and the equivalent of an entire day on the witness stand.

"If this decision can be used as part of a broader campaign to defend academic freedom, then the trouble has been worth it," she added.

Catano said the award will play an important role in CAUT's ongoing work to defend the academic freedom and related intellectual property rights of academic staff.

"The dilemma Professor Bryson faced is not unique to UBC," Catano said. "The troubles she faced are becoming increasingly common at universities and colleges in Canada as pressure grows from administrators, politicians and business people to treat scholarly work as industrial product. We are challenging this trend at the bargaining table and in the political arena. This decision gives our efforts an important legal boost."

Academic Freedom & Copyright

Ownership of the copyright in work produced in the course of employment by an academic author, rather than the university employer is important to support, foster and preserve academic freedom ..." (p. 7)

The many issues related to copyright are all susceptible to collective bargaining and in some work contexts and for some employees - perhaps employees engaged exclusively in online course development - they can be central and significant terms and conditions of employment. This collective agreement is built on a determination 'not to interfere with academic freedom.' Academic freedom is essential 'to instruction and the pursuit of knowledge.' Questions of copyright are inimical to academic freedom and scholarly pursuits." (p. 88)

Faculty Ownership of Copyright

Faculty members are expected to engage in scholarly activity and to produce and disseminate their scholarly work. Because of this expectation and to protect the unfettered pursuit of knowledge that is necessary for scholarship, it is accepted, in the context of employment at a university, that academic authors have copyright ownership of their writings, unless they agree to assign the copyright to the university, a publisher or someone else. This can be characterized as the academic or teacher exception to the presumption of first ownership of copyright in the employer or it may be treated as an implied agreement to the contrary based on custom, tradition, practice or a common and shared understanding. Whether grounded in an exception or implied agreement, academic authors are the first owners of the copyright of their work." (p. 6)

The Role of Associations in Negotiating Intellectual Property Rights

In the university employment context, because of the importance of the expression of ideas to academic freedom and the presumptive first ownership of copyright in faculty, issues related to copyright are part of the core of the relationship between employer and employee. They are part of the conditions of employment. I conclude that the scope of the union's exclusive bargaining authority includes the right to negotiate about matters related to the copyright ownership of bargaining unit employees in works made in the course of their employment." (p. 88)

The circumstance was no different than an employer negotiating with employees covered by a collective agreement about the different conditions of employment under which they would perform their next project or work assignment. I find and declare that the University negotiated directly with individual faculty members contrary to Article 3 of the Agreement on the Framework for Collective Bargaining. The Faculty Association's grievance is allowed." (p. 93)

The Right of Faculty to Uphold the Collective Agreement

When Dr. Bryson was removed by Dr. Gaskell in November 2002 from the assignment given to her by her department head Dr. Perry in May 2002, it was because she was insisting on doing this portion of her assigned teaching, like the rest of her regular teaching load, in accordance with the terms of the collective agreement. The decision to remove her was punishment for her refusal to agree to work under terms different from those in the collective agreement.

Membership in the Faculty Association includes accepting and insisting on adherence to the collective agreement. Every bargaining unit member has a right, and perhaps a responsibility, to ensure the University complies with the terms of the collective agreement. This is an activity each bargaining unit member performs on behalf of the bargaining agent. Vigilance in ensuring the terms of the collective agreement are abided by and refusing to make private agreements to different conditions of employment are activities on behalf of the bargaining agent.

I find that Dr. Bryson was removed from the work assigned to her as part of her regular teaching load because of her membership in and activities on behalf of the Faculty Association contrary to Article 4 of the Framework Agreement for Collective Bargaining. There is no need to make any finding with respect to Article 12. The grievance is allowed." (p. 96)

Above excerpts taken from the arbitrator's decision in University of British Columbia Faculty Association (Re: Dr. Mary Bryson and Master of Educational Technology) v. The University of British Columbia (unreported), Feb. 18, 2004 (Dorsey, Q.C.).