A steady stream of cases cross my desk involving academic staff who have been denied the freedom to publish their research. The details of each case are different, but most share the same underlying cause — the imposition of commercial considerations into the content and schedule of research publication. Recent events in Manitoba demonstrate the constraints on the freedom to publish brought about by this development. They also point to some practical steps academic staff can take to reassert the preeminence of scholarly values on campus.

University of Manitoba professor Stéphane McLachlan and doctoral student Ian Mauro researched the impact of genetically modified crops on farming and in 2002 compiled their findings in a documentary entitled Seeds of Change: Farmers, Biotechnology and the New Face of Agriculture. When it was time to disseminate the research, the administration blocked its release. It did this by utilizing a long-standing university bylaw that states in part: “The University has, to the extent hereinafter defined, an interest in every recording, made on tape, film, phonograph record, kinescope or other recording medium belonging to the University.”

The administration’s ownership share in recorded material, as granted in the bylaw, gave it the power to block the video’s release.

What do we learn from this?

Own Your Intellectual Property

The first step in preserving the freedom to publish is to ensure academic staff own the intellectual property they create. Most collective agreements traditionally provided this right, not to enhance financial well-being, but to protect academic freedom. Individual ownership entrusted control over the work of academic staff to academic staff and not to the whims of the employer or some third party.

Unfortunately, administrators at some institutions have been able to acquire interests in staff-created work, including audio-visual material. Mostly this has been a recent development. For some, it has a longer history and reflects a time when there was little reason to suspect an employer would use shared ownership to stifle publication.

Had McLachlan and Mauro enjoyed sole ownership in their video, the U of M would not have been so easily able to block its release. To protect the freedom to publish, academic staff must use the bargaining table to reclaim lost ownership rights in the intellectual property they create.

Strengthen Collective Agreement Language

Ensuring individual ownership of intellectual property is a start, but it’s not a complete solution. Language enshrining the freedom to publish must also be introduced into collective agreements.

A few pioneering associations have negotiated language affirming a positive right to publish. Unfortunately, this language does not provide adequate protection since it presents the freedom to publish as an available right, if a choice is made to enforce it. This leaves individual academics vulnerable to coercion to acquiesce to restrictions on publication. The responsibility to ensure the open exchange of information must be shifted to the university as a whole with contract language that affirms the right to publish and prohibits the university from entering into or administering any research projects that requires the permission or approval of government, industry or other sponsors to publish.

Change University Policy

Stronger collective agreement language can protect the freedom to publish. Revisions to university and college policy, while not of the same legal significance, can also assist. Policy documents reflect the culture of an institution. If the open exchange of knowledge is declared a core and immutable value in these documents, it establishes a benchmark that informs the behaviour of administrators, academic staff, students and the external organizations that interact with the institution. The importance of all parties understanding the centrality of the freedom to publish is demonstrated in the circumstances surrounding McLachlan and Mauro’s interaction with the U of M administration.

Their video offers a critical perspective on Monsanto Canada, an agribusiness corporation. Monsanto has had a significant corporate presence at the U of M and will soon be relocating its national headquarters to the university’s Smartpark. The senior university administrator negotiating the non-release of the video with McLachlan and Mauro is now president of Smartpark.

The university denies any connection between its relationship with Monsanto and suppression of the video. Rather, it attributes the difficulties encountered by the two researchers to a “misunderstanding” over intellectual property rights. While it is difficult to imagine Monsanto played a role in suppressing the video, the administration’s misunderstanding explanation is inadequate.

The freedom of academic staff to make known to the world the results of their work is not one that is subject to misunderstanding. It is a freedom fundamental to the very mission of universities and colleges, not a peripheral privilege subject to negotiation on a case by case basis. Vorauseilender Gehorsam is a German expression that translates roughly as “obedience that anticipates authority.” In the absence of a culture that reveres open publication, administrators and academic staff alike are vulnerable to such obedience, bowing to commercial interests even before they are asked to.

To clarify to all that any misunderstanding about the paramount importance of the freedom to publish is possible, academic staff must ensure that universities and colleges adopt or amend policy statements to broadly declare:

• Their institution — and any party with which it enters into a relationship — shall not interfere with the freedom to publish research;
  
• Their institution shall not enter into or administer any research requiring permission or approval of government, industry or other sponsors for the researchers to publish the results of their work; and
  
• Members of the academic community shall have an absolute right to disclose publicly information about risks to research participants or the general public or threats to the public interest that become known in the course of their research.
  

Final Words

I suspect most of the university and college community, including some administrators, are not happy with commercial encroachments on the freedom to publish. At the same time, opposing the changes happening on campus must seem an overwhelming task, especially in the face of the daily obligations of career and family. But the curtailment of the free exchange of knowledge can be stopped and initial steps in this effort simply require academic staff to devote time and intellectual energy to ensuring that university policy and collective agreement language affirms and protects the freedom to publish. Enacting such changes will not eliminate the motivation driving those who place commercial considerations above academic values. But new collective agreement and policy language can sharply limit the opportunities to interfere with the publication of research until the underlying effort to commercialize universities and colleges is repudiated.

Paul Jones is CAUT’s Research and Education Officer.