GENERAL STATEMENT
Eckerd College is committed to providing an environment that supports the research and teaching activities of its faculty, students and staff. As a matter of principle and practice, the College encourages all of its members to publish without restriction their papers, books, and other forms of communication in order to share openly and fully their findings and knowledge with colleagues and the public.

It is the intent of Eckerd College that all members of the College community adhere to the provisions of the United States Copyright Law (Title 17, United States Code, Sect. 101, et seq; http://www.copyright.gov/title17). Since copyright protection applies to a variety of creative works -- printed materials, sound recordings, video recordings, visual artworks, computer software, and others ? this policy has been constructed to address issues related to particular types of media.

Full text of the law and its legislative history, plus subsequent analysis and commentary, are available in the College?s Library. The Eckerd College reference staff can assist with locating this copyright information.

Members of the College community who willfully disregard the copyright policy do so at their own risk and assume all liability.

The Copyright Policy has been prepared in this spirit and with this intent. The Copyright Policy is intended to promote and encourage excellence and innovation in scholarly research and teaching by identifying and protecting the rights of the College, its faculty, staff, and students.

What is Copyright?

Copyright ownership and the rights thereof are concepts defined by federal law. 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:

• Reproduce copies of the work.
• Prepare derivative works based on the copyrighted work.
• Distribute copies of the work by sale, rental, lease, or lending.
• Publicly perform the work (if it is a literary, musical, dramatic, or choreographic work or a pantomime, motion picture or audiovisual work).
• 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).

The copyright owner retains these rights even when the work itself belongs to someone else. However, the rights are not absolute. They are subject to both "Fair Use" limitations, which apply to all media, and medium-specific limitations.

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. However, what constitutes fair use is expressed in the form of guidelines rather than explicit rules. To determine fair use, consider the following four factors [from What Educators Should Know About Copyright, by Virginia M. Helm; Bloomington, IN, Phi Delta Kappa Educational Foundation, 1986]:

1. The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use. Several courts have held that absence of financial gain is insufficient for a finding of fair use.

2. The nature of the copyrighted work, with special consideration given to the distinction 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 example, a teacher 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. 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. The effect of the use on the potential market of the copyrighted work. This factor is regarded... as the most critical one in determining fair use; and 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 unlikely to be found a fair use.

College policy is structured within the context of the federal copyright law. The long-standing academic tradition that creators of works own the copyright resulting from their research, teaching, and writing is the foundation of the College's Copyright Policy. Exceptions to this rule may result from contractual obligations, from employment obligations, from certain uses of College facilities, or by agreement governing access to certain College resources. This Policy addresses these exceptions.

Definitions of Copyrightable Material

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 intellectual property, such as books, incorporated under "Traditional Works", and newer forms, such as computer software, incorporated under "Encoded Works".

Traditional 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.

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. The College will exercise its equitable ownership interest in Encoded Works under the circumstances identified below.

Ownership and Disposition of Copyrightable Material

Copyright ownership of all work by academic employees, non-academic employees, or students shall vest in the Author except under any of the following circumstances:

Regarding both Traditional Works and Encoded Works:

I. Subordination to Other Agreements: Copyright ownership of all material that is developed in the course of or pursuant to a sponsored research or other agreement to which the College is a party shall be determined in accordance with the terms of the sponsored research or other agreement. In the absence of terms specifically assigning ownership, the copyright shall become the property of the College only if the terms of such agreement directly or indirectly create College obligations as to intellectual property developed thereunder or if ownership is conferred upon the College by operation of another provision of this Policy.

II. Work for Hire: The copyright of material that is created by a non-academic employee within the scope of College employment or by academic employees pursuant to a specific direction or assigned duty (other than the teaching of courses) from the College or any of its units shall be the property of the College.

Regarding Encoded Works only:

III. Use of College Resources: Copyright ownership of Encoded Works which are developed with the "Substantial Use" of College resources, funds, space, or facilities shall reside in the College. For purposes of this Policy, College resources include grants, contracts or awards made to the College by extramural sponsors. 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. As the concept of Substantial Use evolves with changes in the customary working environment, the term may be refined from time to time and such definition shall be incorporated as an Appendix to this Policy.

Students

Works created by students are additionally subject to the following rules:

A. The College makes no claim to copyright ownership of works created by students working on their own, i.e. not within the scope of an employment relationship with the College or with one of its employees, and not making substantial use of College resources.

B. Students working on a project governed by a contract or agreement to which the College is a party shall be bound by the terms of that contract or agreement.

C. Students who are hired to perform specific tasks that contribute to a copyrightable work will ordinarily have no rights to ownership of that work, regardless of the source of funds from which they are paid. In such cases, the party who owns the copyright of the rest of the work will ordinarily retain copyright ownership of the portion contributed by the student.

D. Students working collaboratively with academic employees on projects that result in copyrightable work may be granted the same rights and obligations of copyright ownership as would another academic employee working collaboratively on the project. Students and academic employees should establish these rights at the outset of their collaboration.

E. If none of the above relationships applies, students performing work compensated by the College are subject to the provisions governing nonacademic employees under Section II.

F. Students may also be subject to rules and restrictions of their Collegia which are not inconsistent with the College Copyright Policy. For example, students who copyright their theses or dissertations must grant the College rights to reproduce and distribute copies of their works in accordance with the policies of the College.

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 will give consideration to views of the Author as to disposition of intellectual property rights when it takes title to a copyrightable work under this Policy. Where the College owns a copyright under this Policy, the Author will 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 will be permitted under approved written agreements obtained from the College Council.

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, assign copyright ownership to the Author subject to a perpetual royalty free license to the College to use the work for its own purposes.

Requirement of Disclosure

Works potentially falling into the three categories described in paragraphs I through III above shall be promptly disclosed in writing to the Dean of Faculty or his designee for a determination as to whether title is in the Author or the College. To determine whether an Encoded Work described in paragraphs I through III is patentable, it should be submitted to the Dean of Faculty for an evaluation.

Overlaps with Patent Policy

Some materials created at Eckerd College are both patentable and copyrightable (e.g., a copyrightable work that embodies a patentable invention). Many Encoded Works may be patentable. For material in categories I, II or III that is both copyrightable and patentable, the Patent Policy of the College shall govern intellectual property rights in the work.

Use of Outside Consultants and Independent Contractors

Under current law, 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 at issue. Therefore, those hiring outside consultants and independent contractors should observe the precaution of having a written agreement including an assignment of copyright. Students and non-academic employees working outside the scope of College employment should be considered independent contractors for such purposes. Assistance in drafting such agreements can be obtained from the College Counsel.

Advice and Interpretation

Members of the College community may obtain advice, from the Dean of Faculty on the application of this Copyright Policy to their work.

Resolution of Disputes

Disputes arising over the application of this policy and the ownership of copyrights shall be brought to the Dean of Faculty, who shall refer the matter to an ad hoc committee consisting of three members, the Head of Information Technologies Services, the Head of Library Services, and an appointed member of the faculty. This body shall report its recommended decision for resolution of the dispute to the Dean of Faculty and the College Counsel. The decision of the Dean will be final. The Dean will render a determination within seventy-five days of receiving written notice of the dispute or the College will relinquish rights to ownership of the disputed copyright.

Copyright Royalties Except in the case of Works for Hire, described in Section II above, royalty income received by the College through the sale, licensing, leasing or use of copyrightable material, which the College owns pursuant to any section of this policy shall be distributed in accordance with the royalty distribution provisions (Section E) of the College's Patent Policy, as amended from time to time. In the case of such intellectual property owned by the College pursuant to Section II, that share of royalties which would ordinarily be distributed to the creator under the Patent Policy will be deposited in a pool to be used, at the discretion of the College President, to recognize meritorious contributions made by College employees. All employees shall be eligible for recognition.

Responsibilities of Parties

It is the responsibility of the College and all members of the College community to ensure adherence to this Policy.

Academic staff and other Authors governed by this Policy shall have the obligation to:

• Make themselves aware of and adhere to restrictions on or rights in copyrightable material deriving from agreements between the College and contracting or granting agencies or other interested third-parties, or deriving from any College interest pursuant to this Policy.
• Inform the College of material that should be copyrighted in the name of the College pursuant to the provisions of this Policy, and to cooperate with the College in obtaining such copyright protection.
• Obtain permission from the College to publish, in journals or other media, materials to which the College owns the copyright pursuant to this Policy, such permission not to be unreasonably withheld.
• Ensure that students or contractors working collaboratively or under their direction (whether or not for pay) on projects which may result in copyrightable material have signed appropriate agreements concerning the assignment of copyright to the Author or to the College, or such other disposition of rights to copyright as shall be appropriate pursuant to this Policy. Such agreements shall also clarify to students their rights to include or copyright any part of the work that they may wish to include in theses or dissertations. At the request of the College, the College Counsel shall assist Authors in this regard.

The appropriate College officers have the obligation to respond in a timely fashion, normally within forty-five days, to written requests pursuant to this Policy.

The College shall, furthermore, use reasonable efforts to promote works to which the College owns the copyright under this Policy.

Copyright Agreements

The policies set forth above constitute an understanding that is binding on the College, and on its academic and non-academic employees, students, and others as a condition of their participating in College research programs or their use of College resources. The College may require formal copyright agreements to implement the policy as appropriate, but the absence of such executed agreements shall not invalidate the applicability of this policy.

Appendix to Copyright Policy

Elaboration of Definition of Substantial Use
The Copyright Policy uses the term "Substantial Use" in determining when the College claims ownership to the copyright of "Encoded Works" developed by members of the College Community. The purpose of this Addendum is to amplify the definition of "Substantial Use".

For purposes of this Policy "Substantial Use" is the use of resources other than those "ordinarily available" to most or all faculty members.

As of the date of this Appendix, such ordinarily available resources 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 students receiving funding from the College is also 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 does have 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 Dean of Faculty to reflect changes in technological paradigms.

Finally, it is important to recognize that where the Author's intent is to generate private revenues, that is, commercial development, such activity may constitute a conflict of interest and should be reviewed under the standards contained in that policy as well.