No. 5-41

Rev.

Date 9-12-95

 

 

POLICY
 

 

 

I. PURPOSE AND SCOPE
 

A. Purpose
 

The purpose of the university's copyright policy is to outline the respective rights which members of the faculty, staff, and student body have in intellectual materials created while employed by or attending the university.
 

B. Nature of Rights Protected by Copyright
 

Copyright is a form of protection given by law to authors of intellectual works. Only authors or those to whom authors have assigned their rights may claim copyright. The owner of a copyright retains and controls a bundle of rights, including but not limited to the following: to print and reprint copies of the work; to sell or distribute copies of the work; to transform or revise the work; and to perform or display the work to the public.

C. Scope of Works Protected by Copyright

1. Literary works;
 

2. Musical works including accompanying words;
 

3. Dramatic works including accompanying music;
 

4. Pantomimes and choreographic works;
 

5. Pictorial, graphic, and sculptural works;
 

6. Motion pictures and audiovisual works;
 

7. Sound recordings; and
 

8. Computer programs and documentation.
 

The requirement the law places on the copyrightability of any of the above works is that the work must be in a form that can be perceived directly or by means of a machine or other device. Both published and unpublished works are under statutory protection.

D. Limitations on Copyright Coverage

Copyright protection is not extended to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of how it is described, explained, illustrated or embodied.
 

E. Copyright Ownership
 

The university encourages the preparation and publication of copyrightable works that result from teaching, research, scholarly and artistic endeavors by members of the faculty, staff and student body by upholding ownership rights of authors in their writings and scholarship that result from usual teaching, research or artistic activities. Normally, the copyright of these works is held by the author.
 

However, because of advancing technology, new forms of educational materials are being developed which require a substantially greater level of direct support from the university than does the writing of a "traditional" textbook and the like. The extraordinary use or purchase of equipment and production facilities, computers, and the expertise of a variety of individuals with special training may be required to augment the talents of an author. When the investment of time and money by the author and the university differs substantially from that involved in the creation of customary educational material, as defined by departmental norms, such material shall be designated as university-sponsored and the university may claim copyright.

II. DEFINITIONS
 

For purposes of this policy, the following definitions will apply:
 

A. Copyrightable Material. The term "material" refers to all copyrightable works, including but not limited to, writings, lectures, musical or dramatic compositions, sound recordings, films, videotapes and other pictorial reproductions, computer programs, listings, flow charts, manuals, codes, instructions, and software, and various combinations thereof.
 

B. Copyright Owner. The term "owner" refers to the party who owns or controls the bundle of rights to copyrightable material and who has the right to sell, assign, distribute, license, or otherwise control the uses of such material.
 

C. Publication. Publication occurs when by consent of the copyright owner the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public.
 

D. Sale. Sale occurs when copyrightable materials are made available for consideration.

III. OWNERSHIP
 

A. Individual Authors
 

The university does not claim copyright on material resulting from customary teaching, research, scholarly and artistic activities such as scholarly articles, research bulletins, monographs, paintings, musical and dramatic compositions, sculptures, architectural designs, books, textbooks, submissions to scientific and technical journals, reference works and the like, and the preparation and taping of lectures or other instructional units. Exceptions to this are defined in Section B below.
 

B. University Sponsor

1. The university may claim copyright under the following circumstances:
 

(a) there is substantial support provided by any university department or unit established to furnish such support or assistance beyond the author's regular salary (including stipends, fellowships, grants), customary use of secretarial assistance, and the use of libraries, laboratories, studios, computers, or equipment; and
 

(b) the university claims copyright as a condition of providing the support.

Such works shall be regarded as university-sponsored works for hire. Such works shall be the property of the university and, at the university's option, shall be copyrighted in the name of the university, except for material produced or developed under grants from agencies of the federal government or other private sources (see Section C, following).

2. The university reserves the right to claim copyright in university-sponsored works subject to the procedures described in this paragraph. Decisions to claim copyright in the university's name will be made by the provost or his or her designee, following consultation and/or negotiation with the author(s), within sixty (60) days from receipt of written notice from the author(s) to the provost's office that he or she is creating a work which may be subject to this Section B.2. If, following consultation and/or negotiation with the author(s), the provost or his or her designee fails to assert a copyright claim in writing within the sixty day review period, the copyright will be released to the author(s). However, the university reserves the right to claim copyright in any work in which there is a substantial change in university support until the requisite notice of the change has been given to the provost's office and a new sixty day review period has run. Thus, any work in which the nature, scope or level of university support increases substantially during the course of the project must be renegotiated.
 

3. A substantial contribution, further is one which is significant in the context of the situation and the practices of particular disciplines, colleges and departments or other units of the university.
 

4. In all cases of substantial university support, an appropriate agreement shall be entered into by the university and the individual author(s). Questions whether particular copyrightable materials are considered university-sponsored should be addressed to the provost in consultation with appropriate departments or units.
 

5. Copyrightable material produced as the primary purpose of employment is considered a work-for-hire. In cases where the university hires work, a written work-for-hire agreement shall be prepared outlining the respective rights of the parties to the copyrightable material.
 

For example, when the university, or one of its colleges, schools, departments, or units has assigned a member of the faculty, staff or student body to develop copyrightable material during time that is being compensated for by funds administered by the university, the university shall own the rights unless an agreement in writing to the contrary has been reached between the author and the university.

C. External Sponsor
 

Copyrightable material produced under grants from the federal or state government, or a private agency, shall be subject to conditions of the contract or grant with respect to ownership, distribution and use, and other residual rights.
 

If the funding agency does not claim copyright, such right shall vest in the university and Section B shall apply. If the funding agency desires to claim copyright, the university shall make reasonable efforts to negotiate sharing of royalty rights for the author and/or the university.

IV. REVENUE SHARING
 

A. Individual Authors
 

Authors of intellectual works described in III. A. above, own the copyrights in their works, and are free to publish them, register the copyright, and receive any resulting revenue from their sale.
 

B. University Sponsor
 

1. When the university, at its option, obtains a copyright for materials resulting from an effort regarded as university-sponsored, the author(s) may be allowed to share in any royalties which accrue from the sale or lease of such material provided an appropriate agreement is entered into. The agreement shall take into account the effort and contribution of the author(s) as well as the development costs to the university when setting the royalty rates and return of investment.
 

2. When an author(s) makes a gift of a personal work to the university, a written agreement accepting the contribution must be executed. The agreement shall take into account whether the author(s) shall share in any royalties resulting from the sale or lease of the contributed work. All such agreements shall be approved by the development office in consultation with the copyright coordinator.
 

3. When the university obtains a copyright and assumes the obligation of publishing and marketing a work, an agreement that sets forth a schedule for sharing royalty income between the university unit responsible for the production and the author(s), and summarizes commitments and/or promises made by either of the parties to the other shall be executed. Although each production effort will receive separate consideration depending on the respective contribution of the author(s) and the university, a general schedule for sharing income is as follows:
 

(a) Eighty percent of gross proceeds of any sale will be allocated to the University unit(s) incurring the direct cost of publishing and marketing the work. Twenty percent of gross proceeds will be distributed to the individual author(s) who may or may not elect to disclaim all or part of their individual share for the benefit of their home department or unit.
 

(b) When the costs of publishing and marketing are recouped from the 80 percent share of proceeds, the balance of proceeds will be distributed so that the author(s) will receive 30 percent of the gross proceeds, and the balance will be divided equally between a university copyright development fund and the university unit responsible for commercializing the copyrighted work. The author(s) may or may not elect to disclaim all or part of their individual share as described in (a) above.

4. When the university does not act directly as the publisher of copyrighted materials, but merely contracts with a commercial publisher for that function on a royalty basis:
 

(a) The author(s) generally will be allocated 80 percent of the royalty income paid by the publisher to the university, and the university copyright development fund will receive the balance.
 

(b) The 80 percent allocation described in (a) above will be subject to modifications made by agreement between the university and the author(s). For example, the author(s) may agree that all or a part of their personal allocations be deposited in a department development account established to nurture and support further research and development of copyrightable materials or any other use.
 

(c) The 80 percent allocation may be subject also to modification so that the university may recoup administrative and developmental costs beyond the ordinary.

C. External Sponsor
 

In cases of external funding, where the university and the funding agency have negotiated a reasonable sharing of any income resulting from the commercialization of sponsored copyrighted materials, the author may appropriately share in any income. The nature and extent of author participation in royalty income shall be subject to sponsor and university agreement.

V. USE OF UNIVERSITY-SPONSORED MATERIAL
 

The university will consult or provide a reasonable opportunity for the author's consultation with respect to use made of a copyrighted work within the university or before any license for its use outside of the university is granted. When unresolved matters on use occur, the matter shall be referred to the provost for resolution or referral for binding arbitration.
 

VI. REVISION OF MATERIALS
 

University-sponsored materials shall not be altered or revised without providing the author(s) a reasonable opportunity to assume the responsibility for the revision. If the author(s) decline(s) the opportunity to revise such material, the assignment of responsibility for the revision will be made by the provost in consultation with the appropriate department.
 

VII. WITHDRAWAL OF MATERIALS
 

University-sponsored materials shall be withdrawn from use when such use is deemed obsolete or inappropriate by the author(s) or the appropriate department.
 

VIII.RELEASE
 

The university may elect to release to the author(s) the right to any work copyrighted in the name of the university.
 

IX. LIABILITY
 

An author of a work produced as a result of a special assignment or commission, or with substantial university or outside support, must warrant that the material does not infringe on any existing copyright or other legal rights; that work not identified as quotations or properly cited is the expression or creation of the author; that necessary permission for quotation and the like has been obtained; and that the work contains no libelous material nor material that invades the privacy of others.
 

X. PROCEDURES
 

A. The responsibility for coordinating matters involving copyright, including the making of contracts and the waiving or assigning of rights, is assigned to the university copyright coordinator in consultation with interested individuals and departments/units.
 

B. The responsibility for the commercial marketing of most university-owned copyrighted materials, e.g., printed and media materials is assigned to an appropriate administrative office in cooperation with the copyright coordinator. The responsibility for maintaining appropriate fiscal records is assigned to the copyright coordinator.
 

C. The copyright coordinator shall be responsible for ensuring the agreements required in III.B. are accomplished.
 

D. Sample contracts are available through the office of the copyright coordinator and the office of legal counsel.
 

E. All university-owned copyrights shall be protected by notice of copyright in the name, "Weber State University," and may be registered as such.