University Policy 84

Copyright Policy

Approved: November 10, 2008
Revised: May 11, 2009
Posted: September 30, 2009

Policy Topic: Governance and Administration; Academic Affairs; Student Activities and Services
Administering Office: Academic Affairs and Office of Technology Transfer

I. PREAMBLE

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.

The environment in which the faculty and students carry out scholarly activities is changing dramatically. The advent of electronic networks, the increasing domination of scholarly publishing by commercial publishers, and the growing role of web-based course materials and distance learning all require increased sophistication of copyright management on the part of the University community.

In order to provide guidance in the copyright management area, The University of North Carolina Copyright Use and Ownership Policy (UNC Policy) was enacted by the Board of Governors of the University of North Carolina on November 10, 2000. The UNC policy directs each institution to take certain steps to implement this policy.

To those ends, this WCU Copyright Policy is adopted to foster creative activity and discovery within the bounds of academic freedom while at the same time protecting the interests of the University. It seeks to balance the legitimate rights and responsibilities of WCU, its faculty, staff, and students in order to produce the highest quality of scholarly works and to promote the widest possible dissemination of those works. It applies in conjunction with the UNC Policy.

II. SCOPE AND COVERAGE

This policy applies to all work produced in the context of the University’s routine scholarly activity conducted through its colleges, departments, and academic units, regardless of delivery mode.

This Policy applies to all University students and employees. Compliance with the UNC Copyright Use and Ownership Policy and WCU Policy #84 is a condition of employment for University faculty and staff and a condition of enrollment for University students.

III. CREATION AND DUTIES OF THE UNIVERSITY COPYRIGHT

COMMITTEE

A. Size and Composition of the Committee

1. A Copyright Committee is hereby established as a university standing committee.
2. The Committee shall consist of (i) four faculty members selected by the Faculty Senate, (ii) one EPA, non-faculty employee selected by the Staff Forum (iii) one SPA employee selected by the Staff Forum, and (iv) a student representative selected by student governance. The chair shall be selected by the Committee. Members shall serve three year terms and may serve no more than two terms consecutively; provided, however, that the first Committee established under this policy shall establish by consensus shorter first terms for some of its members to ensure staggered terms with reasonable annual rotation.

B. Duties of the Committee

The Copyright Committee shall have such responsibilities as the Chancellor may specify including, but not limited to, the following duties:

1. Support the implementation of this policy by hearing disputes involving copyright questions, issues, and disputes brought to the Committee and making recommendations to the Chancellor regarding ownership and use of copyrighted or licensed scholarly works;
2. Review and identify areas in which copyright policy development is needed and recommend to the Chancellor and to the Faculty Senate new or revised institutional policies and guidelines;
3. Assist in identifying the educational needs of the faculty, staff, and students related to compliance with copyright policies and guidelines, and advise the Chancellor and the Faculty Senate on appropriate ways to address those needs.

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. Unless a work is in the public domain or the use constitutes fair use as described below, it is generally 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.

B. Fair Use of Copyrighted Works

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 UNC Policy, the University supports “the responsible, good faith exercise of full fair use rights, as codified in 17 U.S.C. § 107, as amended, 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:

1. The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

3. Procedures for Making Fair Use Determinations

The University Copyright Committee, together with the Office of General 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 appropriate Hunter Library personnel before consulting the Office of General Counsel. Faculty are encouraged to use the UNC System Fair Use Worksheet found on General Administration’s website.

V. COPYRIGHT OWNERSHIP

A. General Provisions

WCU is a community of scholars who pursue intellectual endeavors in many forms. Except as specified below, copyrightable materials resulting from such traditional intellectual endeavors will be the property of the faculty, staff member or student producing it.

Ownership of copyrighted works (whether electronic, digital or otherwise) shall not be determined by its tangible form, nor by its means or mode of delivery or storage. Identification, disclosure, and protection of such copyrighted work are the responsibility of the creator of the work.

B. Copyright Ownership for Works Created by Employees, Students, and Others

1. Works by Faculty and EPA Non-faculty professional employees:

a. Traditional Works or Non-directed Works:

1. Traditional Works or Non-directed Works are pedagogical, scholarly, literary, or aesthetic works resulting from non-directed effort (e.g., art works, audio recordings, films, lecture notes [fixed], manuscripts, musical scores, poems, tapes [audio or video], textbooks, distance learning materials, and videos not falling into other categories). The Creator of the work generally holds copyright except as noted in section VI.A. (i.e., “Traditional Works or Non-directed Works Involving Exceptional Use of University Resources”).
2. In cases of ownership by the Creator of a Traditional or Non-directed work, the Institution, where practical, shall be granted an on-exclusive, non-transferable, royalty-free license for its own educational or research use (hereinafter referred to as a “Shop Right”). This license does not extend to commercialization of the Work as defined in section VI.b. below.
3. The University shall not commercialize any Traditional or Non-directed work or derivatives of those works without the written permission of all creators in accordance with the commercialization terms below.

b. Directed Works:

1. Directed Works are works that are specifically funded or created at the specific direction of the university and includes those products that would be expected outcomes of the job unless they are traditional scholarly works excluded by this policy. Such funding need not constitute “Exceptional Use of University Resources” in order for the work to be considered a Directed Work.
   To avoid possible misunderstandings of ownership, Creators and supervisors are strongly encouraged to employ written agreements whenever the possibility of a directed work exists. Ownership of directed works resides with the university.
2. 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.
3. The work’s Creator, where practical, shall be granted a Shop Right. The Institution may release or transfer its authorship rights to the work’s Creator under a written agreement negotiated between the Creator and the Institution, usually with the Institution retaining (a) a Shop Right, and/or (b) the right to require reimbursement and/or income sharing from the work’s Creator to the Institution if the work produces income for the Creator. The parties may also negotiate for joint ownership of such works, with the approval of the appropriate institutional official or body:
   1. A non-exclusive, non-transferable, royalty-fee license to use the work for the university’s own educational or research use; and/or
   2. Require reimbursement and /or income sharing from the work’s Creator to the university if the work produces income for the creator; and or
4. The university through the Office of Technology Transfer, in consultation with the creator’s dean and/or director and the Creator may alternatively negotiate for joint ownership of the work.
5. Where practicable in the estimation of the Creator’s dean or director, and subject to any additional terms or limitations made necessary by any University licensing agreement, 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.
6. Should the University or the Creator wish to commercialize the Directed Work, disclosure should be made and parties shall proceed as described below with a written agreement delineating the terms of the commercialization, responsibilities of the University and Creator, and a mechanism for the sharing of commercial proceeds.

c. Traditional or Non-directed Works Created with “Exceptional Use” of University Resources:

1. See Section VI.A. below for definition and caveats regarding exceptional use.
2. In the event a Traditional or Non-directed Work is created with exceptional use of University resources the University owns the copyright.

d. Sponsored or Externally Contracted Works are any works developed using funds supplied under a contract, grant, or other arrangement between the University and a third party, including a sponsored research agreement.

1. Copyright ownership shall be as specified in the funding agreement; if none is specified then the Creator shall hold the copyright. Faculty and EPA non-faculty Creators shall be deemed to have granted the University a non-exclusive, non-transferable license to use the work for the University’s own educational or research use. This license does not extend to commercialization of the Work.
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. The Creator must first disclose the existence of the work to the University if the sponsorship agreement provides that the University or a third party shall hold copyright to works created under the agreement.

e. Appeal: Disputes regarding whether a work has been created through exceptional use of University resources or whether a work is a directed work shall constitute disputes regarding ownership to be resolved under the dispute resolution procedures specified below.

2. Works by SPA Staff created in the scope of employment:

1. Under the UNC policy, works created by employees subject to the State Personnel Act (SPA Employees) in the scope of employment is usually “Works for Hire” within the meaning of copyright law, and is therefore owned by the University. The Copyright Committee may recommend, and the Chancellor may decide to grant, a share of royalties, or some or all of the copyright, or a “shop right,” to an SPA employee in exceptional circumstances. Exceptional circumstances may include, but are not limited to, a recommendation from the supervisor coupled with an unusually valuable and hard-to-duplicate work product.
2. 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.

3. Works by Independent Contractors and Volunteers:

The University should obtain copyright ownership for all works created by independent contractors. The University unit that has initiated or benefited from the contract shall be responsible for including contract language providing for University ownership of the copyright. The Chancellor or designee must approve any exceptions.

4. Works by Students

a. The student, with the following exceptions, generally holds copyright to works the student creates as a part of academic endeavor at Western Carolina University.

1. Sponsored or Externally Contracted Works: Copyright ownership in works created by students under a sponsored agreement or external contract shall be the same as provided for faculty or EPA non-faculty in section V.B.1.d. above. If a student has been hired by Western Carolina University to work on a sponsored agreement, the provisions of section V.B.l.d. control.
2. Works for Hire: Works created by students in the course of employment at Western Carolina University are “works for hire” and copyright ownership is the same as provided for SPA employees in section V.B.2 above.
3. Class or Laboratory Notes: Student class and lab notes may be “derivative works” within the meaning of copyright law, in which case they may be used only for personal educational purposes. Commercial use of such works may constitute unlawful copyright
4. infringement. Exceptions may be granted after review by the Copyright Committee in the case of notes that are derived from University-owned works, or may be granted by the individual copyright owner of works from which the student notes have been derived.

b. Rights in student works may be transferred between the student and the University. In such cases, a written Agreement shall specify the respective rights and obligations of the parties. The parties may also negotiate through the Office of Technology Transfer for joint ownership of such works.

c. As a condition of enrollment the student shall be deemed to have granted the University a non-exclusive, perpetual, world-wide, royalty-free right and license to reproduce and publicly or privately display, distribute or perform student work, in whole or in part, for the University’s own educational purposes. The definition of “educational purposes” includes research conducted by a University faculty member and any poster, presentation or publication resulting therefrom. [1] Nothing herein permits the disclosure of a student’s grades, work or other educational records in a personally identifiable manner. This license does not extend to commercialization of the work as defined in section VI.b. below.

5. Works by Multiple and Unknown Authors

The University shall hold the copyright in works where authorship cannot be attributed to one or a discrete number of authors, but instead results from simultaneous or sequential contributions over time by multiple authors who acted in the scope of University employment or academic endeavor (e.g., laboratory manuals, tests, self-paced learning modules created or modified over time either by numerous authors or by some unidentified authors).

VI. SPECIAL COPYRIGHT OWNERSHIP CONDITIONS

A. Traditional Works or Non-Directed Works Involving Exceptional Use of University Resources

1. 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. In such cases, the University owns the copyright.

2. It is understood that “specific remuneration for online course development” is compensation for extraordinary faculty time committed to such online course development and does not constitute “exceptional use of university resources” or “directed works” for the purpose of this policy.

3. Resources that are typically available to scholars (and hence should not constitute “exceptional University resources”) include, but are not limited to, such support as regular salary, office space, regular staff support (e.g. secretarial assistance, graduate and/or professional staff time), laboratory space, studio space, library facilities, ordinary access to telephones, FAX machines, photocopiers, computers and networks including internet access, space for course pages, and technical support.

4. Exceptional use of University resources may include:

1. Waiver of fees normally required to use specialized facilities such as equipment, production facilities, service laboratories, specialized computing resources, and studios;
2. Institutional funding or gifts in support of the work’s creation;
3. 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.

5. Ownership Regarding Exceptional Use

1. Whether an individual work has been created through exceptional use of University resources shall be determined initially by the dean of the college, director or department head in which the Creator has principally been involved or in which the Creator 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.
2. To the extent practical, when exceptional University resources are to be used in the development of intellectual property, prior to utilizing or committing such exceptional University resources, appropriate administrative approval shall be obtained and a written agreement reached between WCU and the scholar as to the terms. This agreement shall include the estimated value of the exceptional resources, the ownership and control of copyrights, and the distribution or division of royalties or other income resulting from such WCU-supported endeavor.
3. Where practical, the Creator shall have a non-exclusive, non-transferable, royalty-free license to use the work for educational or research purposes only.
4. Should the University wish to commercialize the work created with Exceptional University Resources, it should disclose this to the Creator and proceed as described below with a written agreement delineating the terms of the commercialization responsibilities of the University and a mechanism for the sharing of commercial proceeds with the Creator.

6. Release to Creator

With agreement of the dean, director, or department head as defined above, the Office of Technology Transfer 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.

7. 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 Technology Transfer in consultation with the Creator’s dean or director and the Creator may alternatively negotiate for joint ownership of the work.

B. Revenue Sharing of Commercialized Work

1. Creators of copyrighted work are entitled to revenue sharing when the work is commercialized. For purposes of this policy, the word “commercialization” is defined as follows: The licensing, assignment, transfer, or grant of permissive use of a copyright to an entity or individual for the purpose of generating revenue.

2. For purposes of this policy, the word “proceeds” is defined as revenue paid to the University. It excludes any cost reimbursement paid up-front to the University by the licensor, assignee, or permissive user of a copyrighted work for use of the copyrighted work.

3. Works created in any manner may be commercialized by the University and the Creator for other than educational or research purposes as provided below:

1. If the faculty, staff or student Creator wishes to commercialize the copyrighted material that the Creator owns, the Creator shall notify the Office of Technology Transfer. If the Office of Technology Transfer agrees, the Creator shall enter a written agreement which outlines the terms of the commercialization responsibilities of the University and a mechanism for the sharing of commercial proceeds with the Creator. Paragraph VI.B.4. below is only a guideline for these negotiations.
2. If the University wishes to commercialize work it owns under this policy that was created by faculty, staff or students, the University shall notify the Creator prior to commercialization. Proceeds shall be allocated in accordance with paragraph VI.B.4. below.

4. Allocation of Proceeds

Upon commercialization, the University shall receive 60 percent of the proceeds and the Creator(s) shall receive 40 percent until the direct costs of the University are recovered.

5. In the case of co-Creators, each share for the Creator(s) shall be subdivided equally among them, unless the University in its sole discretion determines a different share is appropriate.

C. Educational Uses of Copyrighted Work

1. For purposes of this policy, “educational use” is defined as university use of a copyrighted work created by University employees and/or students, but owned by the University, in a for-credit course offered by the University.

2. When the university exercises its right to utilize copyrighted work for educational or research purposes (See the shop right provision under Section V.V.1), it will notify the Creator and where practical and appropriate offer the Creator the opportunity to be involved in its use.

3. Specific conditions to on-line courses appear below:

1. When the university schedules an on-line course created by a WCU employee who continues to be employed by WCU, the university, where practical, will ask the course Creators to teach any on-line course they have created. This request will be balanced by the department head’s need to schedule the course Creator’s expertise to teach other courses.
2. If the course is not taught by the course Creator, the course materials will clearly designate the course Creator’s name as the owner and Creator of the work as appropriate. Similarly, the course Creator will have the option of removing the Creator’s name from the work.
3. The course Creator may refresh the course at any point during the offering of the course, whether or not the Creator is teaching it. Reciprocally, WCU expects the course Creator to incorporate new ideas/knowledge of the discipline into course. Should the instructor of record be unable to accommodate the Creator’s revisions, the Creator may exercise the Creator’s right to remove the Creator’s name from the work as stated in VI.C.3.b. above.

VII. DISPUTE RESOLUTION

A. Jurisdiction

1. Any University faculty, employee or student may seek resolution of a dispute regarding ownership or commercialization of a copyrighted work governed by this Policy by filing a written request with the Chancellor who shall forward such claims to the Chair of the University Copyright Committee.

2. The University Copyright Committee has exclusive jurisdiction to hear disputes regarding ownership or commercialization of a copyrighted work governed by this policy and make recommendations to the Chancellor.

3. If copyright questions arise in the course of another type of grievance or hearing procedure at the University, where other issues are also at stake, the hearing panel shall refer the copyright questions to the Copyright Committee, which shall then make a recommendation to the Chancellor. The Chancellor shall send a decision on the copyright questions to the hearing panel and that hearing panel will incorporate the Chancellor’s decision into the overall decision or recommendation of the hearing panel. To the extent allowed by law, any time limits existing in any university policy establishing policies and procedures for a referring authority shall be extended by the time used by the Copyright Committee from the referral through delivery of the decision.

B. Conduct of Hearing

In its discretion the Copyright Committee 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 Copyright Committee simultaneously with submission of such materials to the Committee.

Any hearing will be conducted following procedures set forth by the Copyright Committee. The Copyright Committee shall maintain a record of the process including a tape recording of oral presentations, if any. No party shall have the right to be represented by counsel before the Committee, but any party may be accompanied at a Committee hearing by an advisor of his or her choosing, who shall not participate in the hearing.

C. Disposition

1. The Copyright Committee shall report its findings and conclusions to the Chancellor in writing accompanied by both a written recommendation for disposition of the matter and the entire record within forty-five days after the materials are filed with the 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. The Chancellor shall issue a written decision in the matter after receipt of such findings, conclusions and recommendation within forty-five days. The Chancellor’s decision shall be final unless an appeal is permitted by The Code of the University of North Carolina.

 

Policy 84 Interpretation 1