Guideline A-075

Subject: Distance Education and Intellectual Property

I. PURPOSE

The purpose of this guideline is to describe the legal rights and responsibilities of creators, and distributors of distance education/telecourse materials in the Tennessee Board of Regents system, including ownership of copyright on distance education materials created by TBR faculty and employees. Guidance for faculty and institutions in copyrighting original works and legal use of the works of others is found in the Copyright Primer available from the Office of the General Counsel.

II. DEFINITIONS

Distance Education

As defined in TBR Policy 2:05:00:00, distance education occurs:

where there is a physical separation of the teacher and the learner and when communication and instruction take place through, or are supported by, any technological means such as telephone, radio, television, computers, satellite delivery, interactive video, or any combination of present and future telecommunication technology.

The TBR Distance Education Committee has defined "distance education" to include: correspondence courses, videotapes, audio tapes, two way video and audio, computer-based media, and the emerging technology of the Internet.

Copyright

Under Federal law, copyright applies to any "original work of authorship fixed in any tangible medium of expression." (17 U.S.C. § 102(a)). Generally, the owner of a copyright has the exclusive rights to reproduce the work, to prepare derivative works, to distribute copies by sale or other transfer of ownership, and to publicly display or perform the work. (17 U.S.C. § 106).

Work Made For Hire

An employer owns the copyright to a work of authorship when the work was created by an employee within the scope of his/her employment. Some kinds of work can also be owned by the institution as a work made for hire if it is specially ordered or commissioned under a written contract signed by the two (or more) parties. (17 U.S.C. § 101, § 201 (b)).

Fair Use

The Copyright Act provides for some exceptions to the exclusive rights of the copyright owners. One of these exceptions permits fair use of a copyrighted work for purposes such as teaching, scholarship, or research. (17 U.S.C. § 107). The four factors to be considered in determining fair use are:

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 as a whole; and

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

Joint Work

A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. (17 U.S.C. §101).
Collective Work

Work such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. (17 U.S.C. § 101).

Compilation

A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works. (17 U.S.C. § 101).

III. OWNERSHIP OF COPYRIGHTABLE MATERIALS

A. General Policy

TBR Policy 5:01:06:00 on Patents and Copyright provides the overall guidance for ownership of copyrightable materials. The institution has an interest in the copyrightable materials if:

1) the institution sponsors the project; or

2) there is significant use of the institution's facilities, services, or equipment in the creation of the work; or

3) the project is sponsored through the institution by agencies or persons outside the institution. (The contract terms of externally sponsored projects will control ownership of work done pursuant to the contract or grant.)

Policy 5:01:06:00 gives ownership to faculty of their "scholarly and creative works."

Under this Policy, a faculty member or other institutional employee also retains title to the copyrightable work if the work was developed solely through individual work on personal time.

Policy 5:01:06:00 defines "significant use" of institutional resources as cost to the institution in the amount of $1,000 or more (In constant 1982 dollars) This equates to about $1,650 in 1999. Use of office personal computer alone is not considered a significant use of university resources.

This guideline provides more specific policies about copyright ownership in the context of distance education.

B. Scholarly Works

The TBR wishes to encourage scholarly works. Therefore, the TBR will not assert an interest in scholarly works and creations related to the faculty member's professional field. These include:

-- faculty authored textbooks

-- scholarly writing

-- art works

-- musical compositions

-- dramatic and non-dramatic literary works

Distance education, telecourse, and/or multimedia materials that are in the nature of scholarly works created by faculty under the same circumstances that would lead faculty to create more traditional scholarly works will be treated as scholarly. Scholarly work in this context would include course materials created by the faculty when the factors listed in III C and D, below, are not applicable.

If the institution wants to use such a work and/or share in its commercialization, the institution should secure the desired rights in a contract with the faculty member.

C. Student Work

This policy does not apply to undergraduate or graduate students in the absence of an employment or other contract. Generally, ownership of student works is controlled by copyright law.

D. Works for Hire

It is very important to have a written agreement assigning responsibility and rights at the beginning of a project.

Scope of employment

The institution/school will have sole ownership of intellectual property created by its non-faculty employees within the scope of employment. For example, if an institution employs a non-faculty person to design a computer program or to develop a promotional video, the copyright to the program or video belongs to the institution.

The institution should ensure that the job description for each relevant non-faculty position includes the creation of or the assistance with the creation of distance education materials. The institution should also be certain to add to the TBR form employment contract, either on initial hire or with contract renewal, language which specifies that such works are made in the scope of employment. (Appendix 1) In cases where there is a new assignment to the employee, an agreement in writing signed by both the employee and an institutional representative is strongly urged. (Appendix 1 may be utilized.)

Distance education materials created by faculty members will be solely owned by the institution where:

1. The faculty is required to create the materials for a specific class or department by written institution or department policy e.g. (Common core course requirement);

2. The faculty member is given release time to create the materials; or

3. The faculty member is employed to create specific intellectual property/distance education materials.

In all cases, the institution and the faculty member should sign a "Work for Hire Acknowledgment Form" (Appendix 1)

2. Commissioned Work

Under the Copyright laws, (17 U.S.C. § 101, § 201) a work specially ordered or commissioned is owned by the institution if the parties expressly agree in a written instrument signed by both parties that the work will be considered a work for hire. A form "Commissioned Work for Hire' is attached as "Appendix 2." Commissioned work is limited by the Copyright law to contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material to a test, or an atlas. (17 USC § 101, "Work For Hire" definition).

E. Joint Ownership

Works may be created through the joint efforts of two or more faculty members or of faculty and non-faculty employees working in the scope of their employment or working under contract to provide services. Anyone who contributes the kind of expression protected by the copyright law is a joint author if the contribution is intended to be part of an integrated whole.

The institution will be the sole owner if all the work is done as work for hire. The institution and the faculty member may be joint owners of the final product if a faculty member works independently but incorporates work done as work for hire by institution employees and/or contractors.

It is VERY IMPORTANT at the beginning of the project to state the contributors' intentions in a written contract signed by all contributors. The General Counsel's office should be consulted to assist in contract drafting.

F. Revision Rights.

A faculty member should normally retain the right to update, edit or otherwise revise electronically developed course materials that become out of date, or, in certain circumstances, should place a time limit upon the use of electronically developed course materials that are particularly time sensitive, regardless of who owns copyright in the electronically developed course materials. These rights and limitations may be negotiated in advance of the creation of the electronically developed course materials and may be reduced to writing. Absent a written agreement, each faculty member will have the right and obligation to revise work on an annual basis in order to maintain academic standards. If a faculty member does choose to revise the work and such revision is done in a satisfactory manner, the faculty member retains the rights to full royalties as discussed below for another year. If the institution believes a revision is necessary and no revision is made or if the revision made, in the institution's opinion, does not maintain academic standards, the institution may refuse to market the product, or the institution may employ another person to update the work and charge the entire cost of the revision against any royalties paid to the original author.

G. Royalties

Royalty division should generally reflect the relative contributions of the parties. In accordance with TBR policy, faculty members shall receive all royalties that may accrue from the commercialization of electronically published course materials they create on their own initiative. On the other hand, the institution retains all royalties that may accrue from the commercialization of electronically published course materials created by faculty members pursuant to contract or as a work for hire, including electronically published course created as a condition of employment. Copyright law permits joint owners to pursue commercialization either jointly or separately, with accounting. Other circumstances may require review on a case-by-case basis (such as the creation of electronically developed course materials initiated by a faculty member but using substantial institution facilities.) In instances of joint ownership between faculty members where the institution also retains rights to royalties, the faculty members shall determine by written document the division of royalties. Absent a written document of division of royalties, the faculty members shall divide their share pro rata based on participation.

Source: November 3, 1999 TBR Presidents' Meeting.