Posts tagged university
Modern universities are founded, in part, on the basic principle of academic freedom. To benefit society our academics must be free to pursue any line of thought or inquiry, no matter how offensive it might seem to politicians, religious groups, business interests or anyone else, and no matter how meshuga it might sound to the average person on the street. Free expression is a moral imperative and a political necessity. It is vital to our survival as a democratic civilization. Nowhere is it’s presence and growth more important than on university campuses.
Free expression at universities does not only mean the unrestrained ability of professors to zig or zag left or right in classes on political theory. Course time is a small part of it. Free expression also covers the rest of the community of ideas living and breathing on campuses, from signs at student-organized protests to letters to the editor of student newspapers.
Like any other principle, it begs the question: what’s the status quo? How does free expression actually fare at Canadian universities?
The Justice Centre for Constitutional Freedoms released a report last week involving a critical analysis of the state of free speech at Canadian universities. As a brief bit of background, here is a glimpse of the JCCF’s approach from the group’s website:
The free and democratic society which the Canadian Charter of Rights and Freedoms holds out as our ideal can only be fulfilled by honouring and preserving Canada’s traditions of freedom of speech, freedom of religion, freedom of association, other individual rights, constitutionally limited government, the equality of all citizens before the law, and the rule of law.
And yet these core principles of freedom and equality continue to be eroded by governments and by government-funded and government-created entities like Canada’s public universities, and human rights commissions at the federal and provincial levels.
The JCCF is a charity intent on promoting individual liberties, such as free expression, by promoting discourse on the subject and providing pro bono legal representation to Canadians who cannot otherwise afford legal costs associated with defending their rights under the Canadian Charter of Rights and Freedoms (Department of Justice). The JCCF’s political bent is obvious, but the group doesn’t pretend to be a politically neutral think tank, and reports like these – whether they are from the Fraser Institute or the Canadian Centre for Policy Alternatives – should be respected or dismissed on their own merits. The same goes for the fact that one of the report’s authors, John Carpay, represents anti-abortion student activists.
Here are some highlights from the report:
- The report sets out a “Campus Freedom Index” based on the policies and principles of universities and student unions (what they say) and on the actions and practices of universities and student unions (what they do). For example, a “Good” rating on a university’s policies and principles means that the university has a clear and unequivocal commitment to free expression. A university with strong limits on free expression in its policies and principles, such as restrictions against “disrespectful” or “provocative” speakers or perspectives, get a “Poor” rating.
- The Index views favourably universities and student unions that share their respective resources, such as student union funding, equally among groups promoting various perspectives on political and social issues.
- Carleton University is criticized for its approach to anti-abortion student activists (see here). The University of Calgary is criticized for its approach to the Pridgen brothers (see here). The University of Ottawa is criticized for how it handled Ann Coulter’s Canadian tour (Globe and Mail). The best scores went to Simon Fraser University, the University of British Columbia and the University of New Brunswick.
Interestingly, the report denounces universities and student unions for actions or omissions taken against groups trying to advocate what are commonly thought of as left-wing views. For example, the authors were disappointed by the decision of Dalhousie University to cancel a speaking engagement with British MP George Galloway because the event’s organizers were unable to pay for extra security.
This report should be considered by anyone looking for a primer on free speech on campus.
Inventions are a big business for universities, full of potential benefits and potential pitfalls. I discussed in a previous post the issues related to ownership of inventions by university employees and the importance of having the rights of each party set our in writing.
Université de Sherbrooke c. Beaudoin, a recent decision of the Quebec Court of Appeal, shows how a university’s failure to ensure its rights and obligations were clearly indicated in an agreement with researchers led to a costly court case that nearly ended in an unfavourable judgment.
The story revolves around several different contracts related to research being conducted by Beaudoin and an assistant, the goal of which was a particular invention. The inventors had a contract with the university that contained the following important terms:
- the university would own the invention and had the exclusive right to manage it, which included the right to assign rights to others to commercialize it; and
- in exchange, the university owed the inventors half of the revenues generated, and were obliged (a) to consult with the inventors about the management of the invention, and (b) to make reasonable efforts to maximize the value of the invention.
The research was also subject to a series of contracts between the university and Groupe Conseil Harland, a financial engineering company, which, in part, gave Harland an option to acquire the invention. The purchase price payable by Harland was to be determined by complex calculations. Eventually, the university agreed to an amendment, which involved the transfer of that option to Technologies & Bioressources Inc., an affiliate of Harland’s, at a modified price.
This is what prompted the inventors to start a lawsuit against the university, Harland and Neptune. They claimed the university, by signing the amendment, failed in its obligations, first, to consult them about the management of the inventions, and, second, to maximize the value of the invention.
The Quebec Court of Appeal found that the university had not failed to live up to these two obligations and consequently rejected the inventors claims. The court held that the university had adequately consulted with the inventors – they had mentioned certain proposals in the past, which were opposed by the inventors. Based on the language of the agreement, no further consultation was required. Similarly, the court maintained that the university had made reasonable efforts to maximize the value of the inventions.
What lessons can be drawn from this decision?
Many commentators think that the university got off lucky on this one – it was relying on poorly defined obligations. Universities that enter into revenue-sharing agreements with inventors should clearly define what it means to consult and maximize the value of an invention. This decision shows that courts are happy to scrutinize these sorts of agreements, which are fraught with risks for universities.
Where an academic staff member at a university has a eureka moment and produces a fascinating and helpful invention, who holds the rights to that invention – the staff member or the university?
Contrary to my post below regarding copyright, an employee-employer relationship does not result in a presumption that the employer holds rights to the invention. The applicable rules in Canada were summarized in Techform Products v. Wolda:
- the federal statute on patents says that an inventor is the first owner of their inventions, but it says nothing about what happens when the inventor is an employee being paid to do research related to those inventions;
- the mere existence of an employment relationship does not disqualify employees from patenting inventions made during the course of their employment, even where (1) the invention relates to an aspect of the employer’s business, (2) the employee used the employer’s time and materials to bring his or her invention to completion, and (3) the employee has allowed the employer to use the invention while he or she was employed;
- the two exceptions to the presumption favouring employees are (1) a contract that says the opposite, and (2) where the inventor was employed for the purpose of inventing; and
- to define the true nature of an employee-employer relationship, the court will usually look at a series of factors, including whether the employee at the time of hiring had previously made inventions, whether the employer had incentive plans encouraging product development, whether the conduct of the employee once the invention was created suggested ownership was held by the employer, and so on.
A recent decision in Australia, which has rules on this issue that are similar to those in Canada, shows how these principles are applied in the university context. In University of Western Australia v. Gray, the university claimed that it owned the inventions of the head of the Department of Surgery, Gray, who disagreed. Gray had never explicitly assigned the rights to his inventions. The university maintained that Gray had implicitly assigned his rights by virtue of the nature of his position. The Federal Court of Australia sided with Gray and found he had no “duty to invent”.
The key for universities to avoid this mess: have each staff member explicitly assign his or her rights as inventors. Put it in writing.
My interest in law, specifically in education law, began in what seemed like a lawless place.
Ten years ago, I started my undergraduate degree at Concordia University. At the time, I was a shy, unassuming kid with no idea that I would become part of a handful of students on the front lines of one of the most shocking, bizarre and well-publicized events at a Canadian university in recent memory.
During my second year at Concordia, another round of violence had begun in Israel. I had spent a year there after high school and learned a fair bit about the history and politics of the Palestinians and Israelis. The first thing I had understood about the Arab-Israeli conflict was that, like any other but perhaps more so, it involved a war of information. Every major event in the Middle East caused a corresponding rally or lecture or pamphlet on campuses, creating serious challenges for university administrators.
The war of information at Concordia was particularly severe. For example, one zealous anti-Israel group would unabashedly equate Israel to Nazi Germany. The climate on campus created by this type of propaganda grew increasingly worse, and I found myself, as a visibly Jewish student, drawn further into the mix. University administrators failed miserably in their efforts to impose any semblance of order to campus debates. The student government simply fanned the flames.
A combination of extremism and incompetence eventually led, on September 9, 2002, to a full scale riot in the streets of Montreal, preventing a former Israeli leader from attending an event on campus. Rioters shouted anti-Semitic epithets, assaulted Jewish students, and smashed university property.
The event gained immediate and international media attention. At the time, I was actively involved with the Jewish student union, and I was in close contact with almost every journalist, university official, and student activist at the centre of the storm. The riot – and its subsequent fallout throughout the year – ripped at the seams of the university, and I was shown how the demands and concerns faced by administrators tested the fundamental character of the institution.
Slowly, Concordia was turned rightside-up. Moderate students regained control of the student government and restored a sense of order to the campus. By the time I graduated and started law school, Concordia was a very different place.
In the years that followed, I got married, had a child and was called to the bar. Now, as a father and lawyer, I appreciate the events at Concordia from a slightly different angle by acknowledging the challenges and priorities of each group of campus stakeholders, including the students, professors, administrators and the many other communities tied to the vitality of the university.
Law is an essential element of the hasty and important functions of educational institutions. Schools and universities are carefully designed instruments of social growth and busy marketplaces of endless streams of ideas and identities carried in from every corner of the globe. The goal of this blog is to explore those legal issues and events of interest to British Columbia’s educational community.
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