15.015:  Copyright

Status:	Approved on July 31, 2003	Signatures and dates on archival copy
Effective:	when approved
Initiated by:	John Burns Director of Legal Affairs
Reviewed by:	Herman ("Butch") Hill, Chair Policy and Procedure Review Committee
Endorsed by:	Gary North Vice President for Administration
Approved by:	Stephen Kopp Provost

Purpose

From the beginning, United States copyright legislation has had the complementary purposes of protecting the intellectual property of authors while promoting access to useful information. As an educational institution, Ohio University seeks to balance scholars' rights as authors with its fundamental mission to promote the free exchange of ideas and research results. To this end, Ohio University urges faculty to publish their scientific and technical research and other types of scholarly research results in journals supported by universities, scholarly associations, or other organizations sharing the mission to promote widespread, reasonable-cost access to research information.

Policy

I. General Statement

Copyright is the ownership and control of the intellectual property in original works of authorship that is subject to copyright law. All rights in copyright shall remain with the creator unless the work is a "work for hire" (and copyright vests in the University under copyright law). "Work for hire" is a legal term defined below, in the Procedures section, sub-section IV, sub-sub-section C.

For the purposes of this policy, a work will be considered a "work for hire" if the work is supported by a direct allocation of funds through the University for the pursuit of a specific project, is commissioned by the University, or is otherwise subject to contractual obligations that define it as an Institutional Work.

This policy covers all faculty of the University including part-time faculty as well as faculty participating in the early retirement program. In the case of part-time and early-retiree faculty, the policy will apply only in relationship to the work being performed for the University.

II.  Books, Articles, and Similar Works, Including Unpatented Software

In accord with Ohio University's academic tradition, except to the extent required by the terms of specific funding agreements, the University does not claim ownership to pedagogical, scholarly, or artistic works, regardless of their form of expression. Such works include those of students created in the course of their education, such as dissertations, papers, and articles. The University claims no ownership of popular nonfiction, novels, poems, musical compositions, unpatented software, or other works of artistic imagination that are not Institutional Works (see sub-section III, immediately below). If title to copyright in works defined within this section vests in the University as a "work for hire," the University may convey copyright to the creators of such works.

Where publishers' marketing practices could restrict widespread access to research results, individual retention of copyrights to research articles and other forms of scholarly works will ensure that faculty maintain their rights individually or collectively to disseminate this information, as appropriate, to colleagues, students, and the public at large, using existing and emerging print and electronic technologies. Current copyright law specifically gives the owner the right to reproduce, distribute, prepare derivative versions, and to perform or display articles or other works, as long as the copyright is not totally assigned to another.

Where faculty retention of copyright is not possible, authors should at minimum negotiate to retain specific rights to reproduce and distribute the work for educational and research purposes, including:

1. the right to make copies of the work for the author's use in classroom teaching;

2. the right to use after publication, all or part of the material in a book;

3. the right to make copies of the work for internal distribution within the University;

4. the right to use figures and tables from the work, and limited quotations from the text, for any purpose; and

5. the right to make oral presentation of the material in any form.

III.  Institutional Works

The University shall retain copyright ownership of works created as Institutional Works, rather than personal effort. Institutional Works include works that are supported by a specific allocation of University funds or that are created at the direction of the University for a specific University purpose. Institutional Works also include works whose authorship cannot be attributed to a specific list of authors, but rather result from simultaneous or sequential contributions over time by multiple individuals. For example, software tools developed and improved over time by multiple faculty and students where authorship is not appropriately attributed to a single or defined group of authors would constitute an institutional work. The mere fact that multiple individuals have contributed to the creation of a work shall not cause the work to constitute Institutional Work.

Institutional Works can be created for University purposes in the course of special employment, or may result from simultaneous or sequential contributions over time by numerous employees or students. For example, software written by programmers who are hired to write software for others (as distinct from research collaborators who write their own software) is "work for hire" as defined by law (regardless of whether the work is in the course of externally-sponsored research, University research, or non-research activities), as is software developed for University purposes by students and staff working collaboratively. Ohio University owns all rights, intellectual and financial, in such works. On the other hand, if a graduate student writes software to analyze data for his or her thesis research, or a researcher agrees with the other investigators to write software that analyzes their data, that is not "work assigned to a programmer," and therefore is not a "work for hire," and therefore not an Institutional Work.

IV.  Cases of Co-Authorship and University Resource Investment

Under certain circumstances, two or more persons may share copyright ownership of a work, notably when it is a "joint work." The most familiar example of a joint work is a book or article written, fully collaboratively, by two academic colleagues. Each is said to be a "co-owner" of the copyright, with each having all the usual rights of the copyright owner (i.e., to license others to publish, to distribute to the public, to translate, and the like) provided that any income from such use is shared with the other.

When university resources are invested, either Ohio University or the faculty will own the copyright. In most circumstances, faculty ownership or university ownership will be easily determined. However, when significant university resources are involved, a prior agreement should be used to establish ownership, avoiding unclear situations. University grant announcements will include statements when the university expects to own the copyright. Lacking this statement, the copyright will be owned by the faculty. For further illustration of such situations, see the next two sub-sub-sections.

A.  New Instructional Technologies

Recently, the development of new instructional technologies, particularly those involved with distance learning programs, has led to considerable uncertainty with regard to respective rights of the institution and its faculty members. For example, courseware prepared for delivery to students at off-campus locations will often incorporate instructional content authored, and presented, by faculty members. At the same time, however, the institution may have contributed specialized services and facilities to the production of the courseware that go beyond what is traditionally provided to faculty members in the preparation of their on-campus course materials.

Given the varying roles that might be played by the university and the faculty member in the development of such materials, and in consideration of the rapidly changing state of distance-education programs and technologies, it is unlikely that a single copyright principle can be clearly established in these cases. It is therefore useful, and essential, for the rights both of individual faculty members as well as of the institution, that all decisions regarding the ownership, control, and use of such technology-enhanced courseware and materials, as well as any decision on appropriate compensation be negotiated in advance and established in a prior written agreement.

B. Notification of Faculty When University Resources Affects Ownership

When university sponsorship or faculty job assignment reach appropriate levels, the university may claim copyright but must clearly inform the faculty prior to the commencement of the project. Faculty may elect to assign the University their copyright in exchange for resources to be used in developing the property further. Prior written agreements regarding University-owned works may contain provisions ensuring the faculty's right to edit and choose content as long as their names are associated with the work. For University-owned works, the University will be solely responsible for the management of, and decisions concerning, licensing and commercialization.

V.  Video Recording and Related Classroom Technology

Any courses that are video recorded using its media facilities are the University's property, and may not be further distributed without permission from the University. See Policy 15.007, "Faculty Participation in Educational TV Production." Blanket permission is provided for evanescent video or other copies for the use of students, or for other University purposes. Prior to videotaping, permission should be obtained from anyone who will appear in the courseware.

Special academic courseware may require periodic review and revision. See Policy 15.006, "Ownership and Utilization of University-Sponsored Educational Materials." The agreement between the author(s) and the University must specify a period of time after which the material should undergo review or revision.

After the completion of the specified time period, the University will not further use the academic courseware until it has been reviewed. If the academic courseware is being used exclusively by the author(s), determination of its use beyond the specified time period is his or her responsibility, unless otherwise defined by the agreement. If the material is being used by others within the University, its use beyond the terms of the agreement will require written approval of the author(s), which will not be unreasonably withheld.

VI.  Patent and Copyright Agreements

Royalty income received by the University for works it commercializes will normally be distributed as described in Procedures, sub-section I, sub-sub-section B, item 2, below. Physical embodiments of copyrightable works may also be subject to the University's policies on Tangible Research Property. (See Policy 17.001, "Intellectual Property Ownership and Disposition, and Employee Involvement in Research Commercialization.") In the event that a question arises about which policy applies, Policy 17.001 shall be the controlling policy for royalty income distribution.

VII.  Works of Non-Employees

Under copyright law, works of non-employees such as consultants, independent contractors, etc., are owned by the creator and not by the University, unless there is a written assignment to the contrary. Therefore, in order to ensure that the University retain ownership of such works (created as an institutional work rather than personal efforts, as described in sub-section III, above), the University will generally require a written agreement from non-employees that ownership of such works will be assigned to the University. Examples of works that the University may retain non-employees to prepare include: reports by consultants or subcontractors; computer software; architectural or engineering drawing; illustrations or designs; or artistic works.

VIII.  Contractual Obligations of the University

This Copyright Policy shall not be interpreted to limit the University's ability to meet its obligations for deliverables under any contract, grant, or other arrangement with third parties, including sponsored research agreements, license agreements, and the like.

IX.  Use of University Resources

All University resources are to be used solely for University purposes and not for the personal commercial advantage, nor for any other non-University purpose. See Policy 19.058, "Conflict of Interest in Research, Educational, and Public Service Activities," especially the Policy section, sub-section IV, item 1, and the Procedures section, sub-section VII, items 1 and 2. For the purposes of this policy, "resources" does not include the use of typewriters, personal computers, printers, and other equipment for the creation of scholarly works, rather than commercial works.

Procedures

I.  Administration of the Copyright Policy

A.  Determinations of Ownership and Policy in Unclear Cases

The Vice President for Research, or his or her designee, shall resolve questions of ownership or other matters pertaining to materials covered by this policy. If an employee feels he or she has cause for grievance under this policy, he or she may submit a grievance in writing in accordance with the applicable grievance process:

1. In the case of faculty members, the process is described in the Faculty Handbook, Section II.G.

2. For administrative presidential appointees, the process is described in Policy 41.011, "Grievance Procedure for Administrative Presidential Appointees."

3. For classified civil service employees, the process is described in Policy 40.043, "Grievance Procedure for Classified Employees."

4. For classified bargaining unit employees, the terms of the applicable Collective Bargaining Agreement will determine the appropriate grievance process.

These committees shall include a meeting with the Vice President for Research, or his or her designee, in the review process.

B.  Licensing and Income Sharing

1. Licensing:  The University will seek the most effective means of commercialization for public use and benefit, and, toward that end, the Technology Transfer Office handles the evaluation, marketing, negotiations, and licensing of University-owned inventions or copyrightable materials with commercial potential.

   Computer databases, software, and firmware, and other copyrightable works owned by the University, are licensed through the Technology Transfer Office.

2. Royalty Distribution:  Royalties will normally be allocated in accordance with Policy 17.001, "Intellectual Property Ownership and Disposition, and Employee Involvement in Research Commercialization." If copyright protection alone is claimed, royalties normally will be allocated in a similar manner, with the "inventor's share" allocated among individuals identified by the investigator, or department head if not under a sponsored agreement, based on their relative contributions to the work. Where royalty distribution to individuals would be impracticable or inequitable (for example, when the copyrightable material has been developed as a laboratory project), the "inventor's share" may be allocated to a research or educational account in the laboratory where the copyrightable material was developed. Such determination will be made on a case-by-case basis by the Vice President for Research or designee after consultation with the principal investigator or department head. Inventors will receive an annual accounting from the University on or before April 1 each year.

3. Assignments:  No assignment, license or other agreement may be entered with respect to copyrighted works owned by the University, except by an official specifically authorized to do so.

C.  Use of the University Name in Copyright Notices

The following notice should be placed on University-owned materials in order to protect the copyright:

Copyright © [year] Ohio University. All Rights Reserved.

No other college, departmental, or program name is to be used in the copyright notice, although the name and address of the department to which readers can direct inquiries may be listed below the copyright notice. The date in the notice should be the year in which the work was first published, i.e. distributed to the public or any public audience. If the work is revised (e.g., an updated Web page) the year should be the year in which the current version was first published.

Works may also be registered with the United States Patent and Trademark Office using its official forms.

D.  Copying of Works Owned by Others

Members of the University community are cautioned to observe the rights of other copyright owners. Contact the Office of Legal Affairs for University policies pertaining to copying for classroom use. Policies regarding copying materials in the library may be obtained from the Office of the Dean of Ohio University Libraries.

E.  Sponsored Agreements

Contracts and grants frequently contain complex provisions relating to copyright, rights in data, royalties, publication, and various categories of material including proprietary data, computer software, licenses, etc. Questions regarding the specific terms and conditions of individual contracts and grants, or regarding rules, regulations, and statutes applicable to the various government agencies, should be addressed to the University's Office of Research and Sponsored Programs.

F.  General Advice and Assistance

The staffs of the Office of Research and Sponsored Programs, the Technology Transfer Office, the Office of the Vice President for Research, and the Office of Legal Affairs, are available to advise on questions arising under this policy, and to assist with the negotiation and interpretation of the provisions of proposed formal agreements with third parties, as described earlier in this section.

II.  Other Intellectual Property

A.  Trade and Service Marks

Trade and service marks are distinctive words or graphic symbols, or combinations of text and graphics, identifying the sources, product, producer, or distributor of goods or services. Trade or service marks relating to goods or services distributed by the University are owned by the University. Examples include names and symbols used in conjunction with computer programs or University activities and events. Consult the Office of the Vice President for Research, and consult University Communications and Marketing, for information about registration, protection, and use of marks.

B.  Patents

See Policy 17.001, "Intellectual Property Ownership and Disposition, and Employee Involvement in Research Commercialization."

C.  Proprietary Information

The University shall own proprietary information arising out of University work (e.g., actual and proposed terms of research agreements, financial arrangements, or confidential business information).

"Trade secret" is a legal term referring to any information, whether or not copyrightable or patentable, which is not generally known or accessible, and which gives competitive advantage to its owner. Trade secrets are proprietary information and are generally not subject to public disclosure under Ohio open records law and a determination under the law will be made in consultation with the Office of Legal Affairs.

III.  Tangible Research Property

The University encourages the prompt and open exchange, for others' scholarly use, of software, firmware, and biological material resulting from research. See Policy 17.001, "Intellectual Property Ownership and Disposition, and Employee Involvement in Research Commercialization."

IV.  Explanation of Terms

A.  Copyrightable Works

Under the federal copyright law, copyright subsists in "original works of authorship" which have been fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. These works include:

1. Literary works such as books, journal articles, poems, manuals, memoranda, tests, computer programs, instructional material, databases, or bibliographies;

2. Musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works (if fixed, as in notation or videotape);

3. Pictorial, graphic, and sculptural works, including photographs, diagrams, sketches and integrated circuit masks;

4. Motion pictures and other audiovisual works such as videotapes;

5. Sound recordings; and

6. Internet Web sites.

B.  Scope of Copyright Protection

Copyright protection does not extend to any idea, process, concept, discovery or the like, but only to the work in which it may be embodied, illustrated, or explained. For example, a written description of a manufacturing process is copyrightable, but the copyright only prevents unauthorized copying of the description; the process described could be freely copied unless it enjoys some other protection, such as patent.

Subject to various exceptions and limitations provided for in the copyright law, the copyright owner has the exclusive right to reproduce the work, prepare derivative works, distribute copies by sale or otherwise, and display or perform the work publicly. Ownership of copyright is distinct from the ownership of any material object in which the work may be embodied. For example, if one purchases a videotape, one does not necessarily obtain the right to make a public showing for profit.

Notwithstanding rights provided to owners of intellectual property under the copyright law, the "fair use" of copyrighted works for purposes of criticisms, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made in any particular case is a fair use, the factors to be considered include:

1. the purpose and character of the use, including whether such 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; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

None of the four factors set forth in the law is conclusive, and the weight to be given to each will vary in each instance.

The duration of copyright depends on the date the work was created and on whether it was a "work for hire." Please consult the Legal Affairs staff for up-to-date information on the current applicable law.

C.  Works for Hire

"Work for hire" is a legal term defined as "a work prepared by an employee within the scope of his or her employment." This definition includes works prepared by employees in satisfaction of sponsored agreements between the University and outside agencies. Certain commissioned works also are works for hire if the parties so agree in writing. The employer by law is the "author," and hence the owner, of works for hire for copyright purposes. Ownership in a work for hire may be relinquished to the employee or others only by an official of the University authorized to do so.

Reviewers

Proposed revisions of this policy should be reviewed by:

1. Policy and Procedure Review Committee

2. Faculty Senate

3. Administrative Senate

4. The Associate Vice President for Communications and Marketing

5. Vice President for Research

6. Assistant Vice President for Economic and Technology Development

Forms

The following forms are specific to this policy:

1. United States Patent and Trademark Office registration forms may be obtained from the Office of Legal Affairs, to which questions concerning copyright notices and registration may be addressed.

Copyright © 2004 Ohio University. All Rights Reserved.

Dick Piccard revised this file (http://www.ohiou.edu/policy/15-015.html) on September 30, 2004.

Please E-mail any comments or suggestions to "polproc@www.ohiou.edu".