D R A F T -
Southeastern
5.
To ensure that the educational mission of the University is
reinforced.
This policy is intended to support faculty, staff, and students in identifying and protecting Intellectual property, defining the rights and responsibilities of all involved, administering intellectual property matters, and establishing support offices to provide the required assistance. It also stipulates how much income generated should be distributed to the creators or developers and to the University.
INTELLECTUAL
PROPERTY DEFINITIONS
Applicable Intellectual Property - Any
intellectual property developed with University resources, other than
traditional academic copyrightable works, for which assignment to the
University is required by law or by a written contract to which the Creator has
previously agreed; or, for which the Creator seeks University assistance in
commercial development (including protecting, marketing, assigning, or
licensing).
1. Copyright protection subsists, in accordance with this title, in original works of authorship
fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
a. literary works;
b. musical works, including any
accompanying words;
c. dramatic works, including any
accompanying music;
d. pantomimes and choreographic works;
e. pictorial, graphic, and sculptural
works;
f. motion pictures and other audiovisual
works;
g. sound recordings; and
h. architectural works.
Computer Software (as defined in System policy) - Shall include
one or more computer programs existing in any form or any associated
operational procedures, manuals, or other documentation, whether protectable or
protected by patent or copyright.
Creator (as defined in System policy) - An individual
or group of individuals who make, conceive, reduce to practice, author, or
otherwise make a substantive intellectual contribution to the creation of
intellectual property. “Creator” shall
include, but not be limited to, faculty, professional staff, administrative and
support staff, and students. “Creator” shall also include the definition of
“inventor” as used in the
Institution Resources Usually and Customarily Provided (as
defined in System policy) - Shall include such support as office
space, library facilities, ordinary access to computers and networks, or salary
and shall be described in the policy as either “incidental” or “significant.”
The phrase does not include use of students or employees as support staff to
develop the work, or substantial use of specialized or unique facilities and
equipment, or other special subventions provided by the institution unless
approved as an exception.
Incidental Use - Usage that has little or no impact on
the usage of institution resources by other persons at the University and
results in minimal additional expenses for the University.
Significant Use - Usage that has a noticeable impact on
the usage of institution resources by other persons at the University, and/or
which results in additional expenses for the University.
Intellectual Property (as defined in System policy) - Inventions,
discoveries, know-how, show-how, processes, unique materials, copyrightable
works, original data, and other creative or artistic works that have value.
Intellectual property includes that which is protectable by statute or
legislation, such as patents, copyrights, trademarks, service marks, trade
secrets, mask works, and plant variety protection certificates. It also
includes physical embodiments of intellectual effort; for example, models,
machines, devices, apparatus, instrumentation, circuits, computer programs and
visualizations, biological materials, chemicals, other compositions of matter,
plants, and records of research.
Inventor – One who creates inventions patentable.
Inventions Patentable (as defined in Title 35 USC sect. 101)
–
Whoever invents or discovers any new and useful process, machine, manufacture,
or composition of matter, or any new and useful improvement thereof, may obtain
a patent therefor, subject to the conditions and requirements of this title.
Net Income - Funds raised from the
commercialization of applicable intellectual property that remain after the
University and the Creator(s) have been reimbursed for resources expended in
the creation, procuring, maintaining, and marketing of the intellectual
property.
3. Contributions to Collective Works -Copyright
in each separate contribution to a collective work is
distinct from copyright in the collective work as a whole, and vests initially
in the author of the contribution. In the absence of an express transfer of the
copyright or of any rights under it, the owner of copyright in the collective
work is presumed to have acquired only the privilege of reproducing and distributing
the contribution as part of that particular collective work, any revision of
that collective work, and any later collective work in the same series.
Scholarly Works (as defined in System policy) - Shall include all intellectual
properties not covered in Technical Works that are of an artistic, scholarly,
instructional, or entertainment nature.
System - Unless otherwise indicated, “System”
or “the System” refers to the
Technical Works - (as defined in System policy) -Shall
include intellectual properties that are of a scientific, engineering, or
technical nature such as patentable or unpatentable inventions (including
biological materials), computer software, and institution collections.
Technology Transfer -The
dissemination of intellectual property through commercialization or other
means.
Traditional Academic Copyrightable Works (as defined in
System policy) - A subset of copyrightable works created independently and
at the creator’s initiative for traditional academic purposes. Examples include
class notes; books, theses and dissertations; articles; non-fiction, fiction,
and poems; musical works; dramatic works including any accompanying music;
pantomimes and choreographic works; pictorial, graphic, and sculptural works;
or other works of artistic imagination that are not created as an institutional
initiative.
University - Unless otherwise indicated,
“University” or “the University” refers to
Works Made for Hire (as defined in Title 17 USC sect. 101) -
A “work made for hire” is-
1.
a work prepared by an employee within the scope of his or
her employment; or
2.
a work specially ordered or commissioned for use as a
contribution to a collective work, as a part of a motion picture or other
audiovisual work, as a translation, as a supplementary work, as a compilation,
as an instructional text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument signed by them
that the work shall be considered a work made for hire. For the purpose of the
foregoing sentence, a “supplementary work” is a work prepared for publication
as a secondary adjunct to a work by another author for the purpose of
introducing, concluding, illustrating, explaining, revising, commenting upon,
or assisting in the use of the other work, such as forewords, afterwords,
pictorial illustrations, maps, charts, tables, editorial notes, musical
arrangements, answer material for tests, bibliographies, appendixes, and
indexes, and an “instructional text” is a literary, pictorial, or graphic work
prepared for publication and with the purpose of use in systematic
instructional activities.
1. The rights of
2. Southeastern
a. When an
employee is acting within the scope of his or her employment or in official
association with the University,
b. When an
employee is hired or commissioned to create a specific work,
c. When more than
incidental use of institution resources usually and customarily provided occurs,
d. When the
intellectual property results from activities supported by federal funds or
third-party sponsorship, or
e. When the intellectual property results from
activities involving the use of University information not available to the
public or funds administered by the University.
3. Southeastern
a. When
intellectual property is conceived, developed, and reduced to practice by a
member of University personnel on his/her own time outside the scope of his/her
employment or association with the University and with University facilities,
materials, or resources, and where only incidental use of institution resources
usually and customarily provided has occurred, or
b. When the
intellectual property is a creation of traditional academic copyrightable works
in the creator’s field of expertise.
4. Joint ownership may occur under certain
circumstances such as when scholarly works involve the services of other
institution employees (e.g., development of multi-media courseware).
5. Southeastern
6. The Intellectual Property Committee shall
consider special cases not covered by the above statements or which arise
because of conflict of interest, and an appropriate recommendation will be
submitted to the University administration.
ROYALTY INCOME
In cases where the University exerts
ownership, the distribution of monetary proceeds from applicable intellectual
property shall be distributed as follows:
For all net income
·
the Creator shall receive 40%
·
the University shall receive 30%
·
the College shall receive 15%
·
the Department where the work was
accomplished shall receive 15%
ELECTRONIC COURSES
Philosophy
Statement
New technologies have eroded barriers
to the duplication and re-distribution of university courses and course
materials. Unlike traditional courses,
electronic courses are easily copied and can be used for purposes beyond traditional
instruction. As a result, universities
have begun to revisit policy on intellectual property and address issues
related to electronic courses such as ownership rights, revenue sharing, and
course commercialization. At the same
time, the fundamental tenets of academic freedom are compelling universities to
search for mutually beneficial ways to protect the interests of all parties
involved in the creation and delivery of electronic courses. Depending on the circumstances surrounding
development of an electronic course, ownership may reside with the university,
the employee, or both. So as to
encourage the continued development of alternative delivery systems and to
provide for the needs of students, it is incumbent upon universities to set
forth policy that clearly states the rights, responsibilities and obligations
of all parties involved in the delivery of electronic courses.
Definitions
and Distinctions
1. Customary and Extraordinary
Customary conditions apply to
situations in which faculty are provided normal support, such as standard
office and laboratory space, library facilities, ordinary access to computers
and networks, or salary. Extraordinary
conditions apply to situations in which substantial use of specialized or
unique staff, facilities and equipment or other special subventions or
compensation is provided by the University to the faculty to create online
courses. Under “Extraordinary”
conditions, faculty enter into contracts with the
University.
2. Intellectual Content and Commercialization
Intellectual Content refers to material
contained within a course; namely, syllabi, lecture notes, bibliographies,
readings, examinations, and other elements created by faculty. Commercialization covers activities such as
marketing, distribution, dissemination, licensing, and institutional
management, among other services provided by the University.
3. Supplementary and Entirely Online
Supplementary refers to Web-based
course modules created by faculty to supplement conventional classroom teaching. Entirely Online are
courses delivered to distance-learning students entirely over the Web.
4. Development and Teaching
Development refers to creation of
online syllabi, lecture notes, bibliographies, readings, examinations, and
other elements in advance of instruction.
The individual (or individuals jointly) engaged in these activities is
called Developer.
Teaching refers to the activity in
which faculty instruct distance-learning students Entirely Online. The individual (or individuals jointly)
engaged in this activity is called the Teacher.
5. Copyright Ownership and Transfer of
Copyright
Under Extraordinary conditions, the
Developer creates an Entirely Online course, Developer
assumes “Copyright Ownership” and “Transfers Copyright” to the University for
Commercialization.
Copyright rests with the faculty member
when Supplementary modules for conventional classroom teaching are developed,
without Transferring Copyright.
Concepts
1. Portability
a. Faculty members are free to use their
Supplementary Web-based course materials at other institutions without the
University’s prior approval.
b. Entirely Online Web-based courses
Developed at the University, created under Extraordinary
conditions, may not be offered at other institutions without the University’s
prior approval.
c. Negotiated licensing fees may apply to
other University’s when a former faculty member teaches Entirely Online
Web-based courses Developed at Southeastern under Extraordinary conditions.
2. Unbundling Intellectual Property Rights
a. Developer’s
Right of First Refusal
In the event the University wishes to
offer a course Developed by a Full-time faculty member under Extraordinary
conditions, it is recommended that Developer be given the “right of first refusal”
to teach the course.
b. The
University’s and Developer’s Licensing Rights
When the
University licenses Entirely Online Web-based courses to third parties – such
as other educational institutions, publishers, distributors, information
providers, scholarly societies, corporations, and other commercial and
nonprofit entities – Developer and the University may share the proceeds.
c. Developer’s
Scholarly Rights
Developers are given the right, without
requesting permission from the University, to use Intellectual Content from
their Entirely Online course – even those created under Extraordinary
conditions – in scholarly contributions to books, articles, conventional
courses, seminars, lectures, and similar scholarly activities in print and in
person. The same applies to Intellectual
Content from Web-based material prepared as supplementary to conventional
courses.
d. The
University’s Commercial Rights
The University has the right to
Commercialize and License Entirely Online Web-based courses created under Extraordinary conditions.
In the event the University fails to Commercialize or License such
courses in a mutually agreed schedule, such rights may revert to Developer.
e. The
University’s Digital and Other Electronic Rights
The rights to derivative digital and
electronic works – such as television, film, video, CD-ROM, DVD, computer disc,
audio, and other recordings derived from Entirely Online Web-based courses,
created under Extraordinary conditions – rest with the University. In the event the University fails to exploit
such rights in a mutually agreed schedule, such rights revert to
Developer. Developer may seek permission
from the University to use these rights in connection with his or her own scholarly
activities.
Ownership of the electronic course may
reside with the employee, the University, or both. The following scenarios outline the criteria
for deciding ownership of the course:
1. SCENARIO
1: The copyright for an electronic
course shall belong to the employee when the electronic course is created at
the employee’s own initiative under Customary conditions (i.e., only incidental
use of university resources have occurred). This would apply to employees who create an
electronic course during off-work hours and consumption of university resources
(such as disk space, computer paper, etc.), if any, does not exceed that
traditionally and commonly made available to the employee.
Example: A faculty member has been approached by a
textbook publishing company to develop an Internet course as a companion to a
textbook. This is an agreement between
the faculty member and a third-party and the university has no
involvement. The course may or may not
be used for instructional purposes at the university.
2. SCENARIO
2: The copyright for an electronic
course shall be jointly owned by the employee and the university when the
electronic course is a) created by faculty and a party whose contribution would
be a work for hire, or b) when substantial institutional resources were used to
develop or produce the electronic course (i.e., both are Extraordinary
conditions).
Example 1: Distance education specialists hired by the
University assist faculty by contributing labor and other university resources
to the development of Internet courses, whether or not the course is to be used
for instructional purposes at the university.
Example 2: A faculty member creates an Internet course
using resources exceeding that which is traditionally and commonly made
available to faculty members.
3. SCENARIO
3: The copyright for an electronic
course shall belong to the University when the electronic course is created
under a contract with the university (work for hire). This would apply to non-faculty employees who
create the electronic course within the scope of their employment (e.g.,
distance education specialists hired by the university), or faculty who create
the electronic course as a condition of his or her employment.
Example 1: A distance education specialist hired by the
university develops an Internet course for a department to be delivered by
faculty in future semesters.
Example 2: A department head asks a faculty member to
develop an Internet course to be delivered as part of the department’s course
offerings in a future semester.
Example 3: The University contains a statement in the
employee handbook that states that development of Internet courses for
instructional purposes at the university is within the scope of employment.
1.
Acknowledgement
of Institutional Authority
The President
of Southeastern Louisiana University has the ultimate authority for the
stewardship of intellectual property appropriate to the University’s role,
scope, and mission.
2.
Intellectual
Property Committee
The
Intellectual Property Committee shall have the following responsibilities:
a.
Devise, subject to approval by the proper authorities,
institutional intellectual property policies, and advise the Provost on the
implementation of those policies, and the status and conduct of the
University’s technology transfer efforts.
b.
Serve as advocate to the University’s personnel for the
institution’s technology transfer efforts.
c.
Recommend to the Provost the equitable distribution of
income from the development and marketing of those intellectual property rights
in which the University has a vested interest.
d.
Serve as the University’s Intellectual Property Advocate
(IPA)
The
committee shall consist of nine voting members.
The Provost shall appoint three administrators (department head or
above) and one unclassified staff member.
The Provost shall appoint five faculty members, taking into
consideration the recommendation of the Faculty Senate.
1.
All decisions shall be made by a majority vote of the
members present, provided that a quorum is present.
2.
Committee members shall maintain confidentiality of the
specific issues brought before it.
Failure to respect that confidentiality shall result in immediate
dismissal from the Committee.
3.
By a majority vote, the Committee shall elect its chair each
year.
4.
The Committee shall meet at least once each fall and spring
semester.
5.
The Committee shall attach the following disclaimer to all
policy recommendations that it makes:
“The above recommendation by the
Intellectual Property Committee represents our decision based on the
information available at the time the decision was made. Any changes in the information, regardless of
the recommendation, should be reported to the IP Committee. We reserve the right to change our decision
based on any new information.”
INTELLECTUAL PROPERTY ADVOCATE (IPA)
The
responsibilities of the IPA shall be to:
1.
Encourage research and scholarly activities.
2.
Review and recommend to the Provost changes in procedure.
3.
Resolve questions of intellectual property ownership.
4. Make such recommendations as are deemed appropriate to encourage disclosures and ensure prompt and effective handling, evaluation, and management of intellectual property opportunities wh