Bagtown Economics: The fight over patentable material at Mt. A

For those who have read the university’s proposal as I have, it is not initially obvious why the Mount Allison Faculty Association (MAFA) is concerned about the intellectual property changes. However the devil is in the details. Essentially, the proposal provides more scope for the university to pursue revenue-sharing, and potentially partial ownership, of any patentable creation invented by faculty members. I’ll first explain the changes as I understand them, and then provide a brief commentary.

Let’s begin with Article 4.01 of the last collective agreement between the two parties:

The Employer retains all powers consistent with the terms of the Mount Allison University Act, 1993, as amended, to manage and operate without any limitations except those limitations which are set out in the Agreement

This means that anything that is not explicitly specified in the contract is subject to the sole discretion of the university administration. This is an important point.

Now, consider the proposed changes to the Article 32.14 and 32.15 under the Patents subsection. The proposed additions are italicized.

32.13 The Employer waives, disclaims and abandons any interest in or claim to any invention made by an employee without the use of the Employer’s funds or its support or technical personnel or resources including its physical structures, research laboratories, capital equipment, technical facilities, or services (including the administration of funds and support received by the University for an employee in the form of grants, contracts or other support provided by the University or external sponsors).

32.14 The employee shall grant to the Employer a non-exclusive, royalty-free irrevocable, indivisible, and non–transferable right to use solely for the Employer’s internal use and programs any patented invention when such an invention has been invented with the use of the Employer’s funds or its support or technical personnel or resources including its physical structures, research laboratories, capital equipment, technical facilities, or services (including the administration of funds and support received by the University for an employee in the form of grants, contracts or other support provided by the University or external sponsors)

The combination of these two articles implies that the university will be granted free and unlimited use of any patentable material, for internal purposes only, if the creator of that material used “extraordinary” university resources.

Thus, if a faculty member invents something using these extraordinary resources, the university is automatically granted free-use of that invention for internal purposes. The proposal by the administration, which defines extraordinary resources, redefines most of the university’s inputs as extraordinary.

But still, this doesn’t seem that unreasonable—article 32.14 only explicitly provides to the university free use of the invention for internal purposes, not a claim on revenue-sharing. However, here is the catch: Remember Article 4, which grants sole discretion to the administration for anything not explicitly stated. There is nothing in the collective agreement that explicitly disallows the university from pursuing ownership over patentable material if the creator(s) used extraordinary resources. Given that extraordinary resources now would include things like campus buildings and research equipment, the university would be able to pursue revenue-sharing over pretty much any creation on campus.

Are these potential changes wrong? Why should faculty be entitled to the full benefits of their research when the university pays roughly half their salary, and the government pays the rest?

One argument against the proposal is that researchers from other universities will not want to “play with the greedy kid on the block,” as argued by Vett Lloyd of the biology department. But truthfully, many other universities in Canada have explicit revenue sharing agreements, including the University of Toronto, McGill, the University of Victoria, Simon Fraser University, the University of Alberta, and the University of Manitoba, to name a few, as of 2010. In these agreements, the universities are entitled to anywhere from five per cent to fifty per cent of revenue, depending on the details. Given that, Mt. A  would hardly be the greedy kid on the block.

The second argument against revenue sharing is that faculty will have less incentive to innovate and research. I don’t find this to be an attractive argument either. First, they are paid to research—its part of their job. Second, their career advancement greatly depends on research output—unproductive researchers rarely get tenure. Third, in most cases at other universities, the inventor still receives at least fifty per cent of the take. And finally, I presume that faculty members actually enjoy the research they do, thus not being entirely motivated by money.

I stood with MAFA on their opposition against student evaluations, but I am much less compelled by their stance on intellectual property. Perhaps they have tabled a compromising counter-proposal, but alas I’m not privy to that information.

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