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Proposed: May 29, 2003
Initially Approved: November 13, 2003
Administering Office: Academic Affairs and Legal Counsel
I. Introduction
Western Carolina University is dedicated to instruction, research,
and providing service to the people of North Carolina and of the
region. It is the policy of this University that its faculty,
staff, and students carry out their scholarly work in an open
and free atmosphere, and that consistent with applicable laws
and policy, they publish the results of such work without restraint.
To those ends, and in order to effect provisions of the Copyright
Use and Ownership Policy of the University of North Carolina,
this Copyright Policy is adopted.
II. Scope and Coverage
This Policy applies to the faculty, staff, and students of the
University. Compliance with the terms of this Policy is a condition
of employment for University faculty and staff, and of enrollment
for University students. This Policy is supplemental to the Copyright
Use and Ownership Policy of the University of North Carolina,
and is subject to any applicable laws and regulations or to specific
provisions in grants or contracts that govern rights in copyrighted
works created in connection with sponsored research.
III. Creation and Duties of the University Copyright Committee
A. Size and Composition of the Committee
1. The size of the Committee shall be determined by the Chancellor.
2. The Committee shall consist of (i) a chair appointed by
the Chancellor, (ii) faculty members elected by the Faculty
Senate, who shall constitute a majority of the members, (iii)
one SPA employee elected by the Staff Forum, (iv) a student
representative elected by student governance and (v) members
from campus units that are involved in intellectual property
matters selected by the Chancellor.
B. Duties
The Copyright Committee shall have such responsibilities as the
Chancellor may specify, including but not limited to the following
duties:
1. Monitoring trends in such areas as institutional or consortial
copyright use policies, changes in copyright ownership models,
and guidelines for fair use of information in all formats;
2. Identifying areas in which policy development is needed and
recommending to the Chancellor new or revised institutional
policies and guidelines;
3. Cooperating with the administration to propose and monitor
the application of University policies and guidelines regarding
ownership and use of copyrighted or licensed scholarly works;
4. Identifying educational needs of the faculty, staff, and
students related to compliance with copyright policies and guidelines,
and make appropriate arrangements for those needs; and
5. Under procedures specified below, hearing disputes involving
copyright ownership.
IV. Use of Copyrighted Works by Faculty, Staff, and Students
A. Appropriate Use of Copyrighted Works
The University is committed to complying with all applicable
laws regarding copyrights. As an institution devoted to the creation,
discovery, and dissemination of knowledge, the University supports
the responsible, good faith exercise of full fair use rights,
as a codified in federal law at 17 U.S.C. § 107, by faculty,
staff, and students in teaching, research, and service activities.
Except as allowed by law, it is a violation of this Policy and
law for University faculty, staff, or students to reproduce, distribute,
display publicly, perform, digitally transmit or prepare derivative
works based upon a copyrighted work without permission of the
copyright owner. Determination of whether a specific use of a
copyrighted work may constitute infringement shall be made by
the Office of University Counsel.
B. Fair Use
(1) Permissible Use
Under United States Copyright law, the "fair use doctrine"
allows certain specified uses of a copyrighted work without requiring
prior permission of the copyright holder under certain situations.
As stated in the Copyright Use and Ownership Policy of the University
of North Carolina, the University supports "the responsible,
good faith exercise of full fair use rights, as codified in 17
U.S.C. § 107, by faculty, librarians, and staff in furtherance
of their teaching, research, and service activities."
(2) Elements of Fair Use; Good Faith Consideration Required
University faculty, staff, or students who propose to make fair
use of a copyrighted work must consider in advance the applicability
of four statutory factors to be weighed in making a fair use analysis.
These factors are:
(a) The purpose and character of the use, including whether
the use is of a commercial nature or is for nonprofit educational
purposes;
(b) The nature of the copyrighted work;
(c) The amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and
(d) The effect of the use upon the potential market for or
value of the copyrighted work.
(3) Procedure for Making Fair Use Determinations
The University Copyright Committee, together with the Office
of University Counsel, shall issue and as necessary, revise
guidelines to assist University faculty, staff, and students
in making fair use evaluations. Faculty, staff, or students
who require assistance with fair use questions are encouraged
to consult the Library.
V. Copyright Ownership
Ownership of copyright in copyrighted works shall depend on the
category of the work in question and on the status of its creator.
A. Works Created by Faculty or EPA Non-Faculty Employees
1. Traditional Works or Non-Directed Works
(a) Definition
Traditional Works or Non-Directed Works are pedagogical, scholarly,
literary, or aesthetic works resulting from non-directed effort.
(b) Ownership
(1) The creator of such a work shall own the work unless it
is a Directed Work, a Sponsored or Externally Contracted Work
requiring University ownership of copyright, or a Work for Hire
(defined below). Faculty and EPA non-faculty creators of a Traditional
or Non-Directed Work shall be deemed to have granted the University
a non-exclusive, non-transferable license with shared royalties
to use the work for the University's own educational or research
use.
(2) Traditional Works or Non-Directed Works for which authorship
cannot be attributed to one or a discrete number of authors
but instead result from simultaneous/sequential contributions
over time by multiple authors shall be owned by the University.
(c) Commercialization; assignment to University
Where a University faculty or EPA non-faculty creator of a Traditional
or Non-Directed Work desires assistance from the University in
commercializing the work, the creator shall consult with the Office
of Research and Graduate Studies. If the University is to be involved
in commercializing a Traditional or Non-Directed Work, the creator
shall assign the work to the University under an Assignment Agreement
including but not limited to provisions outlining the commercialization
responsibilities of the Institution and a mechanism for the sharing
of commercial proceeds with the creator.
(d) Allocation of Commercialization proceeds
When any Traditional or Non-Directed Work is accepted by the
university for commercialization, the creator's share of proceeds
shall be negotiated between the creator and the Office of Research
and Graduate Studies on a case-by-case basis, taking into account
the nature of the work and the creator's contribution, the prospective
market conditions for the work, the anticipated level of effort
and resources required for commercialization, and other commercially
reasonable factors.
(2) Traditional Works or Non-Directed Works Involving Exceptional
Use of University Resources
(a) Definition
Exceptional use of University resources has occurred where the
University has provided support for the creation of the work with
resources of a degree or nature not routinely made available to
faculty or EPA non-faculty employees. Exceptional use of University
resources may include:
(i) Waiver of fees normally required to use specialized facilities
such as equipment, production facilities, service laboratories,
specialized computing resources, and studios;
(ii) Institutional funding or gifts in support of the work's
creation;
(iii) Reduction in levels of teaching, service or other typical
university activities (e.g., course load, student-advising responsibilities,
division/department meetings, office hours, administrative responsibilities)
specifically to facilitate creation of the work.
Ordinary or limited use of computers, FAX machines, laboratory
space, libraries, office space, photocopiers, routine secretarial
services at routine levels, telephones and other informational
resources shall not be considered exceptional use of University
resources.
(b) Ownership
Traditional Works or Non-Directed Works Involving Exceptional
Use of University Resources shall be owned by the University.
Whether an individual work has been created through exceptional
use of University resources shall be determined initially by the
dean of the college or director of the department in which the
creator has principally been involved or in which he or she has
received resources to fund the work, taking into account the nature
and amount of resources customarily made available to faculty
or staff in that department.
(c) Release to Creator
With agreement of the dean or director as defined above, the
Office of Research and Graduate Studies may release or transfer
the University's rights in a Traditional Work or Non-Directed
Work created through exceptional use of University resources to
the work's creator through an appropriate written agreement.
(d) Release Agreement
(1) Any agreement for release to a creator of a Traditional
Work or Non-Directed Work created through exceptional use of
University resources shall include provisions that:
(i) The University shall have a non-exclusive, non-transferable,
royalty-free license to use the work for the University's own
educational or research use; and
(ii) Upon commercialization of the work either (a) the creator
shall reimburse the University for the exceptional resources
provided the creator, or (b) the creator shall share income
from such commercialization with the University, in an amount
to be negotiated between the creator and the Office of Research
and Graduate Studies.
(2) The Office of Research and Graduate Studies, in consultation
with the creator's dean or director, shall determine which of
the options available under item (d)(1)(ii) above will be selected
in conjunction with the release of such a work to its creator.
Decisions made or negotiations entered under item (d)(1)(ii)
above regarding financial terms may be appealed only to the
Vice Chancellor of Academic Affairs. Further appeal under this
policy is not available. In the event that the creator and the
University are unable to reach agreement regarding such financial
terms, ownership of the work at issue shall remain with the
University.
(e) Joint Ownership
In addition to the foregoing provisions for release to the creator
of a Traditional or Non-Directed Work involving exceptional use
of University resources, the University, through the Office of
Research and Graduate Studies in consultation with the creator's
dean or director and the creator may alternatively negotiate for
joint ownership of the work.
(f) Appeal
Disputes regarding whether a work has been created through use
of exceptional University resources shall constitute disputes
regarding ownership to be resolved under the dispute resolution
procedures specified below.
(3) Directed Works
(a) Definition
Directed Works are works that are specifically funded or created
at the direction of the University. Such funding need not constitute
exceptional use of University resources in order for the work
to be considered a Directed Work. Directed works shall also include
works created by faculty, staff, or students in an institute,
center, department, or other unit that, with approval of the Chancellor,
has adopted rules providing that copyright in materials prepared
by such faculty, staff, or students in the course of their professional
work or in the course of study with that unit vests in the University
and not in its creator.
(b) Ownership
The University shall own copyright in Directed Works. Where practicable
in the estimation of the creator's dean or director, and subject
to any additional terms or limitations made necessary by University
licensing agreements, the creator shall be granted a non-exclusive,
non-transferable, royalty-free license to the work for the creator's
own educational or research use.
(c) Release
The University may release or transfer ownership in a Directed
Work to the creator.
(d) Release Agreement
(1) Any agreement for release to a creator of a Directed Work
shall include provisions that:
(i) The University shall have a non-exclusive, non-transferable,
royalty-free license to use the work for the University's own
educational or research use; and/or
(ii) Upon commercialization of the work either (a) the creator
shall reimburse the University for the resources provided the
creator in conjunction with creation of the work, or (b) the
creator shall share income from such commercialization with
the University, in an amount to be negotiated between the creator
and the Office of Research and Graduate Studies.
(2) The Office of Research and Graduate Studies, in consultation
with the creator's dean or director, shall determine which of
the options available under item (d)(1)(ii) above will be selected
in conjunction with the release of such a work to its creator.
However, decisions made under item (d)(1)(ii) above regarding
financial terms may be appealed only to the Vice Chancellor
of Academic Affairs. Further appeal under this policy is not
available. In the event that the creator and the University
are unable to reach agreement regarding such financial terms,
ownership of the work at issue shall remain with the University.
(e) Joint Ownership
In addition to the foregoing provisions for release to the creator
of a Directed Work, the University through the Office of Research
and Graduate Studies in consultation with the creator's dean or
director and the creator may alternatively negotiate for joint
ownership of the work.
(f) Appeal
Disputes regarding whether a work is a Directed Work shall constitute
disputes regarding ownership to be resolved under the dispute
resolution procedures specified below.
4. Sponsored or Externally Contracted Works
(a) Definition
A Sponsored or Externally Contracted Work shall be any copyrighted
work developed using funds supplied under a contract, grant, or
other arrangement between the University and a third party, including
a sponsored research agreement.
(b) Ownership
(1) The creator of a Sponsored or Externally Contracted Work
shall own the work unless the agreement expressly requires copyright
ownership by the University or conveyance of rights to a third
party. As a condition of employment, faculty and EPA non-faculty
creator-owners of a Sponsored or Externally Contracted Work
shall be deemed to have granted the University a non-exclusive,
non-transferable, royalty-free license to use the work for the
University's own educational or research use.
(2) The University will own a Sponsored or Externally Contracted
Work where the relevant agreement requires copyright ownership
by the University or conveyance of rights to a third-party,
in which case the University will convey rights to the third
party as required. In such cases the creator of the copyrighted
work shall be required to report the work to the Office of Research
and Graduate Studies, using such forms and procedures as that
Office develops. Where a proposed sponsored research agreement
or research grant will require that copyrighted works be owned
by the University or a third party, the Office of Research and
Graduate Studies should inform the relevant Principal Investigator
of the copyright provisions and secure his or her consent to
such provisions before the agreement is signed or the grant
accepted.
(c) Release
Sponsored or Externally Contracted Works owned by the University
may be released to the creator or jointly assigned to the creator
and the University, through the procedures mandated for Directed
Works, where the University has ascertained that such release
will not conflict with the terms of the relevant agreement or
grant or with written consent of the other party to the agreement
or grant.
(d) Appeal
Disputes regarding whether a work is a Sponsored or Externally
Contracted Work shall constitute disputes regarding ownership
to be resolved under the dispute resolution procedures specified
below.
B. Works Created by SPA Staff Employees Considered Works Made
for Hire
(1) Definition
For purposes of this Policy, a "work for hire" is:
(a) A work prepared by an employee within the scope of his
or her employment as per the employee's applicable job description
and work plan; or
(b) 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.
(2) Ownership
Under the UNC policy, works created by SPA employees in the scope
of employment are "Work for Hire" within the meaning
of copyright law, and therefore owned by the University. The Copyright
Committee may recommend, and the Chancellor or his designee may
decide to grant, a share of royalties, some or all of the copyright,
or a royalty-free use license to a SPA employee in exceptional
circumstances. Exceptional circumstances may include, but are
not limited to, a recommendation from the supervisor coupled with
unusually valuable and hard-to-duplicate work product.
(3) Appeal
Disputes regarding whether a work is a "Work for Hire"
as defined above shall constitute disputes regarding ownership
to be resolved under the dispute resolution procedures specified
below.
C. Works by Independent Contractors
Works produced for the University by independent contractors
shall be considered Works Made for Hire and shall be owned by
the University. No unit or department shall enter into arrangements
for work to be produced by an independent contractor without a
written contract; signed by an authorized University official,
including but not limited to a provision that the University shall
own copyrighted works produced by the independent contractor.
D. Student Works
(1) Definition
Student Works are papers, computer programs, theses, dissertations,
artistic, and musical works, and other creative works made by
University students.
(2) Ownership and Use
(a) Students shall own copyright in Student Works except in
the following cases:
(i) The University shall own a Student Work that is a Sponsored
or Externally Contracted Work where this Policy so requires,
and ownership and use of such works shall be as specified in
section V.A. (4) above.
(ii) Student Works created in the course of the student's employment
by the University shall be considered Works Made for Hire, and
ownership and use of such works shall be as specified in Section
V.B. above.
(b) Student Works that constitute notes of classroom and laboratory
lectures and exercises may be derivative works of the faculty
member or lecturer. If so, use of the notes for commercial purposes
by the student generating the notes may violate copyright laws.
(3) Appeal
Disputes regarding whether a work is a "Student Work"
as defined above shall constitute disputes regarding ownership
to be resolved under the dispute resolution procedures specified
below.
VI. Dispute Resolution
(A) Jurisdiction
(1) Any University faculty or staff employee or student may
seek resolution of a dispute regarding ownership of a copyrighted
work governed by this Policy by filing a written request with
the Chancellor. The Chancellor shall refer such requests to
the Chair of the University Copyright Committee, who shall appoint
a panel of not less than three members of the Copyright Committee
to hear such dispute (hereinafter "dispute resolution panel").
(2) Any employee grievance committee, the faculty hearing committee,
the University Judicial Coordinator, any student discipline
judicial body and any similar body shall refer any copyright
ownership issue arising within the matter before it to the Chair
of the University Copyright Committee, who shall appoint a dispute
resolution panel.
(3) The University Copyright Committee, together with its duly
appointed dispute resolution panel, has exclusive jurisdiction
of disputes regarding ownership of a copyrighted work governed
by this policy.
(B) Conduct of Hearing
In its discretion the dispute resolution panel may conduct a
hearing into the matter or may make a recommendation based upon
the written record, provided that all parties to the dispute are
given an opportunity to present evidence and arguments in support
of their respective positions. Each party shall provide the other
party with a copy of any written materials submitted to the dispute
resolution panel simultaneously with submission of such materials
to the dispute resolution panel. Any hearing will be conducted
following procedures set forth by the dispute resolution panel
or promulgated by the Copyright Committee. No party shall have
the right to be represented by counsel before the dispute resolution
panel, but any party may be accompanied at a dispute resolution
panel hearing by an advisor of his or her choosing, who shall
not participate in the hearing.
(C) Disposition
(1) Each dispute resolution panel shall report its findings
and conclusions to the referring authority in writing along
with a written recommendation for disposition of the matter
within forty-five days of appointment of the dispute resolution
panel by the Chair of the Copyright Committee. Provided, that
for good cause the Chair of the Copyright Committee may extend
the time period for such report by not more than an additional
thirty days. Copies of such findings, conclusions and recommendation
shall be provided to all parties.
(2) For disputes brought pursuant to paragraph VI.(A)(1), the
Chancellor shall issue a written decision in the matter after
receipt of such findings, conclusions and recommendation. The
Chancellor's decision shall be final unless an appeal is permitted
by The Code of the University of North Carolina.
(3) For disputes brought pursuant to paragraph VI.(A)(2), the
referring authority in paragraph VI.(A)(2) will accept the dispute
resolution panel's recommendation as its own for purposes of
deciding the matter before it. To the extent allowed by law,
any time limits existing in any university policy establishing
policies and procedures for a referring authority identified
in paragraph VI.(A)(2) shall be extended by the time used by
the Copyright Committee dispute resolution panel from the referral
through delivery of its recommendation.
Recommended to the Chancellor by the Intellectual Property Task
Force:
Malcolm Abel, Mary Anne Nixon, Robert Orr, Richard Kucharski (co-chair)
and Bil Stahl (co-chair)
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