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Copyright and Intellectual Property Policy
This document expresses the policy of and provides guidance on the practices of Eckerd College with respect to Copyrights, Patents, and Intellectual Property.
2.0 Policy Statement
Eckerd College supports a faculty dedicated to fostering student learning through effective teaching and mentoring, productive scholarship and artistic endeavor, and broad participation in the campus community. Consistent with this mission, the College recognizes the ownership of work by faculty, staff, and students who are its creators, along with the right of the College to use such work for its educational mission and the development of its employees, and to participate in the financial benefits that may come from the marketing and commercialization of work by its creator(s).
It is the intent of Eckerd College that all members of the College community adhere to the provisions of the United States Copyright Law (www.copyright.gov) and Patent and Trademark Laws (www.uspto.gov).
This Policy applies to all persons creating intellectual property at Eckerd College. The Policy applies to faculty, students, staff, and third parties or independent contractors receiving compensation or funding from the College.
Copyright is a form of legal protection for authors of original works, including literary, dramatic, musical, artistic, and other intellectual products. Publication is not essential for copyright protection, nor is the well-known symbol of the encircled "c". Section 106 of the Copyright Act (90 Stat 2541) generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
a. Reproduce copies of the work.
b. Prepare derivative works based on the copyrighted work.
c. Distribute copies of the work by sale, rental, lease, or lending.
d. Publicly perform the work (if it is a literary, musical, dramatic, or choreographic work or a pantomime, motion picture or audiovisual work).
e. Publicly display the work (if it is a literary, musical, dramatic, choreographic, sculptural, graphic, or pictorial work -- including the individual images of a film -- or a pantomime).
This term describes any person or persons who create or invent intellectual property.
3. Collective Works
The Copyright Law defines "collective works" as works in which a number of contributions, constituting separate and independent works, are assembled into a collective whole, such as a periodical issue, anthology, or encyclopedia.
4. Traditional Works
It is expected that laws and judicial interpretations of laws governing protection of intellectual property will change from time to time, particularly as they apply to new and rapidly changing technologies such as computer software. New paradigms may require new approaches. As such, this Policy differentiates between "Traditional Works" and newer forms, such as computer software, incorporated under "Encoded Works." Copyrightable Traditional Works such as books, manuscripts, artistic works, movies, and television programs historically have been the property of the author. It is not the intent of this Policy to change significantly the relationship between the author and the College that has existed through the years.
5. Encoded Works
Encoded Works include software and other technologies used to support the electronic capture, storage, retrieval, transformation, and presentation of digital data and information or to interface between digital forms and other communications and information media. If the Encoded Work is a work for hire (see section 4.11), the College is the owner of such Encoded Work.
Encoded Works which are developed with the "Substantial Use" of College resources, funds, space, or facilities shall reside in the College.
6. Intellectual Property
Intellectual Property includes all information and records pertaining to any idea, process, trademark, invention, discovery, and copyrightable works. Intellectual property also includes Discoveries, Works of Art, Trade Secrets, Trademarks and Servicemarks, Writings, and Software.
7. Unpatentable Software
In 1996, the U.S. Patent and Trademark Office adopted the Computer Related Examination Guidelines. The U. S Patent and Trademark office personnel should apply the Computer Related Examination Guidelines to determine if the software qualifies as patentable. The term "should" is used because the Guidelines do not constitute substantive rulemaking, thus do not have the force and effect of law. Consequently, the rejection of a patent request is appealable, but not a failure of the U.S. Patent and Trademark office to apply the Guidelines. Under these guidelines, neither "software" nor "data structures" are per se patentable. What is patentable is a "process, machine, manufacture, or composition of matter."
An invention is a tangible or intangible discovery, idea, or process that includes, but is not limited to, software, databases, technical drawings, biological materials, and other technical creations.
9. Joint Work
"Joint works" are works prepared by two or more authors or inventors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. For the purpose of this Policy, joint works are also defined as works where both the creator and the College agree to participate in a mutually beneficial creation. Joint works can also result from the College's substantial contribution to an invention or Intellectual Property (see Section 6.1.e). The College and the author/inventor are co-owners of a joint work.
10. Scholarly Works
Scholarly works are owned by their authors if the author is an employee or student of the College. Scholarly works are protected by copyright. This category includes books, articles, publications, artistic creations, literary manuscripts, visual and auditory creations, and musical works, irrespective of their medium of storage or presentation. Ownership of works created by students enrolled at the College such as written compositions, musical scores, sculptures, paintings, photographs, films, videotapes and computer software, shall be vested to the student unless the student has been employed or otherwise funded by the College to create a specific work.
11. Works for Hire
Works for hire are "works prepared by an employee within the scope of his or her employment." This definition includes works prepared by College employees in satisfaction of sponsored agreements between the College and funding agencies. The College is the owner of works for hire.
12. Substantial Use
Substantial use means the use of space or specialized equipment for extended periods of time in a way that results in an appreciable expense to the College including an increase in utilities and maintenance services. The use of College resources is "Substantial" when it entails the use of College resources not ordinarily used by, or available to all, or virtually all, members of the faculty. Ordinarily available resources whose use is not considered to be "substantial" include office space and personal office equipment, office computer workstations, library and other general use information resources, and the means of network access to such resources. Incidental involvement of these resources by students receiving funding from the College is excluded from the definition of "Substantial Use."
The symbiotic nature of the relationship between the College and its faculty produces benefits to both in the nature of enhanced prestige and increased grant support. The College, therefore, wishes to encourage teaching, scholarship, and research activities on the part of its faculty and makes its facilities available to aid in the achievement of these ends. Nevertheless, the College has a legitimate right to participate in the management, protection, and marketing of intellectual property rights where Substantial Use has been made of its resources. The above definition of Substantial Use may be changed from time to time by the College to reflect changes in technological paradigms.
It is also important to recognize that where the author‘s intention with his invention is to generate private revenue, that is, commercial exploitation of a work, such activity may constitute a conflict of interest with the College and should be reviewed accordingly by the IPC and the direct supervisor.
A patent is the grant of a property right to the inventor for a term of 20 years. The right conferred by a patent is the right to exclude others from making, using, offering for sale, or selling the invention in the U.S. or importing the invention into the U.S.
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. The term may also be used to refer to a "servicemark," which is similar to a trademark, except that it identifies and distinguishes the source of a service rather than a product. Trademark and servicemark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.
5.0 Fair Use
In determining copyright ownership, the College will consider fair use. The doctrine of fair use, embedded in section 107 of the Copyright Act of 1976 (http://www.copyright.gov/title17), addresses the needs of scholars and students by mitigating the rights of copyright ownership. Fair use is expressed in the form of guidelines rather than explicit rules. To determine fair use, consider the following factors [from "What Educators Should Know about Copyright," by Virginia M. Helm; Bloomington, IN, Phi Delta Kappa Educational Foundation, 1986]:
1. Determine if the copied material is for nonprofit, educational, or commercial use. Several courts have held that absence of financial gain is insufficient for a finding of fair use.
2. Distinguish between a creative work and an informational work. For example, photocopies made of a newspaper or newsmagazine column are more likely to be considered a fair use than copies made of a musical score or a short story. Duplication of material originally developed for classroom consumption is less likely to be a fair use than is the duplication of materials prepared for public consumption. For instance, an instructor who photocopies a workbook page or a textbook chapter is depriving the copyright owner of profits more directly than if copying one page from the daily paper.
3. Determine the amount, substantiality, or portion used in relation to the copyrighted work as a whole. This factor requires consideration of 1) the proportion of the larger work that is copied and used, and 2) the significance of the copied portion.
4. Assess the potential effect on the market of the copyrighted work. This factor is regarded as the most critical in determining fair use. It serves as the basic principle from which the other three factors are derived and to which they are related. If the reproduction of a copyrighted work reduces the potential market and sales and, therefore, the potential profits of the copyright owner, that use is not likely to be a fair use.
6.0 Ownership of Copyrighted or Patented Intellectual Property
Faculty, staff, and students are expected to comply with copyright laws and patent laws. Distribution of materials protected by copyright without permission of the copyright owner may be a violation of federal or state law. It is the responsibility of those reproducing materials to make sure the reproduction is consistent with U.S. Copyright Law.
a. Faculty and staff shall own inventions or Intellectual Property created during their own time, within their own facilities and resources, and in research/projects not within the stated objectives of their current sponsored research.
b. Material that is created for the purpose of delivering or in support of the academic program, such as syllabi, assignments, and tests, shall remain the property of the faculty or staff member. The College shall have the right to use such material for delivery of instruction and administrative purposes, including satisfying requests of accreditation agencies for faculty-authored syllabi and course descriptions.
c. An invention shall be owned by the College when the faculty or staff are working for the College on a sponsored project (research or educational), including off-campus work.
d. The College shall own the invention in cases where the creator has voluntarily transferred the copyright or patent, in whole or in part, to the College. This transfer shall be documented in writing with an original signature by the creator or author.
In cases where the College has contributed to a "joint work" as defined in this Policy, the College shall exercise joint ownership of such Copyright, Intellectual Property or Patent. Contributions by the College to a joint work maybe in the form of substantial resources including specialized services, equipment, and facilities. The arrangement for the College's contribution, the College's co-ownership and the financial rights and obligations of the co-owners shall be agreed to in writing, in advance, and in full conformance with other provisions of this policy. If there is no such writing, the creation shall be considered a "joint work" subject to this Policy (n.b. Section 8.0).
Eckerd College recognizes that students may produce Intellectual Property because of their interactions with faculty and/or with other students.
a. When a student's work has been accepted for publication by a journal or a publisher, absent of an agreement to the contrary, the work becomes the property of the publisher.
b. Inventions and Intellectual Property created by students, on their own time, with their own facilities and resources, and in research not within the stated objectives of their current sponsored projects are the property of the students.
c. Inventions and Intellectual Property created by students while employed on a College sponsored project (research or educational) are owned by the College, unless subject to a copyright agreement with the sponsoring agency.
d. Inventions and Intellectual Property are owned by students when created as a part of any class project, Senior Comps, thesis course work, directed study, and examination. The College shall have a perpetual, royalty-free license by the submitting students to make copies of the work for internal administrative and educational purposes.
e. Students working collaboratively with College employees on projects that result in copyrightable work may be granted the same rights and obligations of copyright ownership as would another College employee working collaboratively on the project. Students and College employees should establish these rights in writing submitted to the Intellectual Property Council at the outset of their collaboration.
Currently, ownership of works created by outside consultants and independent contractors could reside in such individuals and not in those hiring them to perform the work. The College shall retain ownership of works as described in the "Work for Hire" section created by third parties, consultants, or independent contractors hired by the College for a specific purpose. The College is the owner of reports by consultants or subcontractors, computer software, architectural or engineering drawings, illustrations or designs, and artistic works supplied by such outside consultants and independent contractors.
4. Joint Works
The College is the co-owner of Intellectual Property developed by College faculty, staff, or student employees or third parties hired as consultants or independent contractors. All joint works shall be administered under this Policy.
7.0 Intellectual Property Council
The Administration, in consultation with the Intellectual Property Council (IPC), shall interpret and administer this policy. The IPC shall consist of the Dean of Faculty, the Dean of Special Programs, the Chief Financial Officer, and three faculty members. The Dean of Faculty shall serve as the Chair of the Council.
8.0 Disclosure & Notification Process
Faculty, staff, and students under the scope of this Policy, shall timely disclose to their immediate supervisor and to the Intellectual Property Council the creation of Intellectual Property or inventions that may have commercial value or constitute a joint work. The disclosure shall be in the form of electronic mail and shall include the description of the nature, purpose, and operation of the invention and the chemical, biological, medical, physical, and electrical characteristics of the invention (see Section 6.1.e).
9.0 College Name on Copyright Notices
Works may be registered with the United States Copyright Office using its official forms
(http://www.copyright.gov/forms/). The following should be placed on College-owned materials: Copyright © [year] Eckerd College. All Rights Reserved. The date in the notice is the year in which the work is first published.
10.0 Rights Sharing
The rights to Intellectual Property owned by faculty, staff, or students may be shared with the College by written agreement under which the costs, ownership, and rewards of the invention are mutually shared.
11.0 Use and Display of Intellectual Property
The College, faculty, students, and staff may use Intellectual Property owned by faculty, staff, students and third parties hired by the College for internal, educational or support purposes. Such uses may include display of the work, utilization of the work in modified forms to create derivative works or compilations, or use in contexts other than originally contemplated by creators of the work. This use of the work shall include the right to make copies for use in scholarship, teaching, and research.
12.0 Scholarly or Artistic Work
The author shall retain ownership of nonfiction novels, poems, musical compositions, unpatentable software, or other works of artistic imagination that are not work for hire.
The author shall retain ownership of pedagogical, scholarly, or artistic works, regardless of their form of expression, such as those works of students created in the course of their education, including papers, theses, and articles.
13.0 Recognition of Author's Desire for Intellectual Control
In recognition of the author's desire to maintain intellectual control of his or her work, the College shall give consideration to views of the author as to the disposition of intellectual property rights when it shares or takes title to a copyrightable work under this Policy. Where the College owns a copyright under this Policy, the author shall be permitted to continue to use the work for his or her own non-commercial purposes. Distribution, if any, to academic colleagues outside of the College shall be permitted under written agreements approved by the Intellectual Property Council.
14.0 Assignment to Author
In cases where the College has copyright ownership of a work under this Policy, the College may, upon request and for good cause shown, or adequate consideration, assign copyright ownership to the author subject to such conditions as the College and author may mutually agree.
15.0 Reslution of Disputes
Disputes arising over the application of the Copyright & Intellectual Property Policy, the ownership of copyrights, patents, and royalty arrangements shall be made in writing to the Intellectual Property Council. The IPC shall make a written recommendation to the President within 60 calendar days of receiving written notice of the dispute. The President shall make a decision on the resolution of the dispute within 45 days of receipt of the written recommendation of the Intellectual Property Council, subject to his option to extend the period for his decision for an additional 35 days. The President's decision shall be final and binding on the inventor and the College. In the event the President fails to make a final decision within 80 days, then the recommendation of the Intellectual Property Council shall be final and binding on all parties.
16.0 Filing and Fees of Copyrights and Patents
The owner of the Intellectual Property shall have the right to protect the Intellectual Property to the extent the owner deems it appropriate and at the owner's sole cost and expense. The IPC shall be kept advised of any such efforts on a continuous basis. The IPC shall have the right to protect joint work in accordance with its agreement with the co-owner of the joint work. Once the IPC has been notified of the potential or impending creation or development of intellectual property or an invention that may result in commercial value which may result in a joint work in which the College may, or will have an interest as a co-owner the IPC will determine whether an application for copyright or patent is appropriate.
All writings negotiated between the IPC and the inventor will be subject to the President's approval. Since U.S. Patents are not enforceable in other countries, the IPC will determine in which countries a patent shall be applied for, if the College or the inventor can apply for such patent, and the terms of any fees/royalty splitting of same, and make such recommendations to the President.
Each inventor of a joint work shall negotiate a royalty arrangement with the College's Chief Financial Officer prior to marketing and licensing the joint work. The final agreement shall be in writing and subject to review and approval by the Intellectual Property Council and the College's legal counsel. The Chief Financial Officer, as a member of the Intellectual Property Council, shall refrain from the consideration and vote on any royalty arrangement negotiated by him. The product shall not be licensed or marketed unless and until the inventor and the Intellectual Property Council reach a mutually acceptable royalty arrangement. Absent a mutually acceptable royalty arrangement, the President shall not have the authority to impose a royalty arrangement on the inventor under Section 14.0.
18.0 Prosecution and Enforcement
The IPC, as Administrator of the College's Copyright and Intellectual Property Policy, shall make a recommendation to the President as to whether the College should prosecute to enforce a copyright or patent for which it is co-owner. The President will make the final decision as to whether the College shall prosecute. The decision by the College not to prosecute a violation of a copyright or patent for which it is co-owner shall not preclude the other co-owner(s) from prosecuting under same at their sole cost and expense.
19.0 Effective Date of Policy
This policy shall become effective February 26, 2010. A reference about this policy shall be made in the Personnel Policy and Procedures Manual, Faculty Handbook, and Student Handbook. This Policy shall be binding for all faculty, staff, students, contractors, and those hired under the "Works for Hire" section of this Policy.