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Academic freedom: a lawyer’s perspective

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Abstract

Academic freedom is central to ideas of higher education, yet in the United Kingdom it is facing challenges from changing managerial approaches within some  universities and changing governmental expectations. Universities are increasingly expected to focus upon knowledge which can be shown to have value and to exploit the results of academic enterprise. Resulting constraints on teaching and research by incessant market-driven demands have the potential to compromise academic freedom. This article considers aspects of academic freedom in an increasingly market-driven environment from a lawyer’s perspective. The legal protections for academic freedom in the UK are minimal, and consideration of the intellectual property policies of a significant number of UK universities suggests that, in many, academic outputs, especially those relating to teaching, have become subject to more entrepreneurial models of higher education, becoming potentially saleable products to be owned and exploited by universities as they see fit. The position is exacerbated by increasing developments in the use of technology as part of the teaching process. Academics who lose ownership of aspects of their intellectual output risk the undermining of their position and academic freedom with a current employer and limiting their opportunities to change employer.

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Notes

  1. Throughout this article when writing in general terms reference will be made to the UK. However, certain aspects of the discussion are relevant to England only and this will be made clear where appropriate.

  2. Kaye in Clark v University of Melbourne [1978] VR 457.

  3. [2002] EWHC 2765 (Admin) paragraph 40.

  4. [2013] EWHC 1832 (Ch); [2013] All ER (D) 68 (Aug), Ch D.

  5. For further detail see the website of the Intellectual Property Office, http://www.ipo.gov.uk/.

  6. http://www.ucu.org.uk/index.cfm?articleid=2386 (accessed 26 May 2014).

  7. (2013) 133 B.M.L.R. 210.

  8. Section 27(2) of the Freedom of Information (Scotland) Act 2002. For further discussion, see Gray 2012.

  9. Stephenson Jordan and Harrison v MacDonald and Evans [1952] 1 TLR 101 (CA).

  10. [1952] 1 TLR 101 (CA).

  11. [2009] FCAFC 116 [Fed Ct (Aus) (Full Ct)].

  12. Copyright, Designs and Patents Act 1988 ss.11(1) and 11(2); Patents Act 1977 ss.7 and 39-41.

  13. A few university policies were not available due to significant redrafting in progress, and the others were not accessible online and could not otherwise be obtained in the time frame for this research.

  14. The University of Manchester policy documents were unusual in expressly crediting a named law firm in creating the policy.

  15. Statutes and Ordinances of the University of Cambridge, Chapter XIII, Finance and Property, clause 7.

  16. The term ‘some’ is used because categories (2) and (3) in some policies permitted employees to retain ownership of, say, private notes used to support teaching but asserted ownership of key aspects of other teaching materials.

  17. The AAUP also addresses the importance of electronic communication media to exercising academic freedom. For example, university policies which require permission before sending messages to large groups of recipients have the potential to inhibit freedom if permission is denied inappropriately. Institutions should have clear, academic led policies: ‘electronic communications are too important for the maintenance and protection of academic freedom to be left entirely to institutional technology offices’.

  18. http://webarchive.nationalarchives.gov.uk/20100202100434/http:/www.hefce.ac.uk/pubs/hefce/2006/06_20/.

  19. Some evidence of potentially academic freedom impinging responses has begun to emerge from other jurisdictions. For example, in 2013 it was reported that a tenured journalism professor at the University of Kansas had been suspended from teaching over a strongly worded tweet. John Milburn, ‘University Of Kansas Professor David Guth Suspended Over Tweet Won't Return in 2013’ and ‘University Of Kansas Professor David Guth Suspended Over Tweet Won't Return in 2013’ and ‘KU Professors Say Punishment For David Guth’s Tweet Violates Free Speech Rights’, Huffington Post, 09/28/13 and 10/24/13 (http://www.huffingtonpost.com/2013/10/25/university-of-kansas-david-guth_n_4164298.html). This, in turn, reportedly led to the Kansas Board of Regents granting discretion to state universities to suspend or dismiss any faculty or staff member who improperly uses social media. ‘Improperly’ could be anything ‘contrary to the best interest of the university’.  Peggy Lowe, ‘Strict Social Media Policy Approved By Kansas Board Of Regents’, May 14, 2014 (http://kcur.org/post/strict-social-media-policy-approved-kansas-board-regents).

  20. The University of Leeds was unusual in explicitly providing a staff member who wishes to claim ownership of intellectual property on the grounds that it was not produced during the course of employment and did not require substantial use of University facilities with the opportunity to assert this. If not resolved at local level, ultimate determination is by a panel consisting of senior academic office holders, a union nominee and a lay member of the University Council.

  21. A continued disconnect between the business understanding of what universities should be about, and the view from some within academia is illustrated by a recent book review by a practising intellectual property lawyer—John A. Tessensohn (Richards 2013). Tessensohn notes that the ‘least satisfactory parts of the book are written by academics. One chapter… is written by an academic who was one of the drafters of Who Owns Science? The Manchester Manifesto, a document that identifies the usual Luddite inspired problems with patenting and calls for patenting to assume a ‘marginal role to minimize damage to academic freedom’—this emotional but ultimately misguided call is… divorced from real world realities…’

  22. For example, in 2011 the Intellectual Property Office launched a strategy guide, Intellectual Asset Management for Universities. This 48 page document contains no mention of academic freedom.

  23. Section 139 Employment Rights Act 1996 provides, inter alia, one definition of dismissal by reason of redundancy as: ‘the fact that the requirements … for employees to carry out work of a particular kind… have ceased or diminished or are expected to cease or diminish’.

  24. Recent changes to the litigation process relating to low value intellectual property disputes may reduce, although do not completely eliminate, the financial risks. However, the High Court remains the venue for more complex and high value cases, with the prospect of unlimited damage and cost awards, including orders that the losing party pays the legal costs of the winning party. See further https://www.gov.uk/intellectual-property-an-overview/legal-action-about-intellectual-property; http://www.inhouselawyer.co.uk/index.php/intellectual-property/9832-the-new-small-claims-track-for-ip-cases.

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  1. Sussex Law School, University of Sussex, Falmer, Brighton, BN1 9QE, UK

    Mark Davies

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Davies, M. Academic freedom: a lawyer’s perspective. High Educ 70, 987–1002 (2015). https://doi.org/10.1007/s10734-015-9884-8

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