CW 080 - Intellectual Property and Copyright Policy

Policy

CWI believes that the creation, discovery, and dissemination of knowledge are central to the achievement of its mission. CWI’s community shares both an interest in the protection of intellectual property as a creator of such property and in the authorized use of Works authorized by third persons in the daily pursuit of research, teaching, learning, and public service.

Principles:

• CWI respects intellectual property rights and the appropriate use of Works, in any medium, consistent with the spirit and the letter of U.S. copyright law.
• It is imperative that CWI faculty and staff, as they encounter the Works of others, consider, and understand the relationship between copyright and the use of existing and emerging technologies.
• The rapidly changing technological and legal environments of higher education require a systematic and ongoing program of copyright education, awareness, and decision support.

CWI’s faculty and staff desiring to use Works authored by anyone other than a CWI employee are responsible for ensuring compliance with applicable copyright law. Faculty and staff should note that any content not authored by the user may be copyrightable subject matter, the copyright in and to which may be owned by a third-party author and the use of which without the author’s permission may subject the user and CWI to claims of copyright infringement. The presence or absence of a “©” or other indicia of a copyright claim is NOT evidence of an absence of a claim of copyright in the subject work. In the event of genuine doubt regarding the application of copyright law, faculty and staff should consult with their supervisors or respective Dean regarding such matters. CWI does not assume legal responsibility for any independent application of copyright principles made by faculty or staff that are not in good faith or that do not otherwise comply with this policy, or the guidance provided by, or determinations made by individual supervisors or Deans. Permission must be obtained in all instances and exceptions must be approved by the Dean or other supervisor.

Copyright warning notices must be posted at various places where employees, vendors or independent contractors accept orders for copies, and on or near all library or archival equipment capable of duplicating materials and must be visible to anyone using the device. Copying equipment may include but is not limited to photocopying machines, audio and video recorders, scanners, and computers. Libraries and archives are also required to place a copyright warning notice in a form approved by outside counsel on the first page of copies they make for patrons.

The Technology, Education and Copyright Harmonization (TEACH) Act requires faculty teaching in a distance learning environment to post a notice in their course warning students that materials may be protected by copyright. Faculty should include a copyright statement in their syllabi.

Copyrightable materials owned by CWI should contain a copyright notice in the name of the Board of Trustees of the College of Western Idaho and should include the following notice: Copyright © [Year Created] College of Western Idaho. All rights reserved.

CWI monitors internet use for copyright violations. Violations of this policy may result in disciplinary action, up to and including termination.

Copyright Ownership by Category of Work

Individually-Supported Works

CWI shall have no claim or rights to Individually Supported Works of CWI faculty, staff, and students. Ownership of copyrights to Individually Supported Works shall reside with the creator.

Scholarly Works

Ownership of copyrights to Scholarly Works shall reside with the creator of the Work unless the Work is Externally Sponsored Work or Work for Hire, in which case the creator hereby assigns and agrees to assign the copyright to CWI. Faculty are responsible for obtaining all permissions necessary to help minimize liability for copyright infringement.

Works Created with “Nominal Use” of CWI Resources

CWI relinquishes (to the creator) ownership and rights to any income generated from intellectual property created with only “nominal use” of CWI resources, as long as the time devoted by the creator does not compromise his or her core responsibilities.

Works Created with “Substantial Use” of CWI Resources

CWI shall own Works created by CWI faculty, staff, or students with “substantial use” of CWI resources in which case the author or inventor, as the case may be, hereby assigns and agrees to assign the intellectual property rights to CWI, unless CWI agrees, in writing, to waive or alter its rights. CWI is responsible for all expenses related to protection, administration and commercialization of intellectual property owned by CWI.

CWI faculty, staff, and students shall have the obligation to disclose in writing their intentions to develop intellectual property that requires “substantial use” of CWI resources and assign title to CWI. Disclosure must be made prior to the start of the project and must be submitted in writing to the supervisor for approval. The creator and the institution should agree before the project begins on the extent of the use of CWI resources, allocation of rights to use the Work, and recovery of expenses and/or division of income received from commercialization of the intellectual property.

Work for Hire

Without an express written agreement specifying otherwise, CWI shall own all Work for Hire created by CWI employees within the course and scope of their employment and shall own all copyrights to works made with the substantial use of CWI resources, and all employees assign and agree to assign such to CWI.

CWI shall also own all Work for Hire commissioned pursuant to a written agreement with independent contractors in which the creator assigns and agrees to assign all intellectual property rights in and to authored or invented content, works, or other materials to CWI.

Externally-Sponsored Work

Ownership of Works sponsored by outside agencies is controlled by the terms of the grant or contract which provides the funds in support of the Work. In the case of government contracts or grants, the government may retain the right to duplicate and use the Works for government purposes.

Materials produced under grants from the federal government or other agencies shall be subject to conditions of the contract or grant with respect to ownership, distribution and use, and other residual rights. If CWI support for the project is “substantial,” CWI may declare itself a joint author of the project as a Joint Work and assert its right to ownership and/or a portion of any net proceeds arising from the project. A written contract which clearly specifies the disposition of any property rights arising from the project must be signed by the creator(s), CWI, and the external sponsor before work on the project should begin.

If the project will involve “substantial use” of CWI resources, employees must disclose their agreement with the external sponsor by sending written notification to CWI’s President, who will approve or deny the request within thirty (30) days. Such agreements must be approved by CWI before work on the project commences.

CWI personnel participating in sponsored projects must have a written agreement on file with their immediate supervisor and the Business Office which acknowledges:

• individual and joint responsibility to produce and deliver sponsored works, as required by the terms of the sponsored project agreement, and
• that copyright ownership of sponsored works, unless reserved to the sponsor or otherwise provided for in the sponsored project agreement, shall be assigned to CWI.

Joint Work

Copyright ownership of jointly-originated works shall be determined by separately assessing the category of work, as set forth in this policy, of each creator. Rights between joint owners of a copyright shall be determined pursuant to copyright law.

In some situations, the creator(s) and CWI will share interest in the copyright. Works may be created through the joint efforts of faculty and staff members working within the scope of their employment or others under contract to provide services. Such a Work shall be jointly owned by the faculty author and CWI. In certain circumstances where the parties may not actually intend this result, ownership may be altered by prior written agreement signed by all contributing parties.

Joint authors may choose to cooperate in the commercialization of their Work or to commercialize separately. Joint copyright owners are obligated to share their revenues with each other if they commercialize separately.

If the Work is a compilation, the creator(s) shall retain all ownership interests in the contribution he or she owns pursuant to this Policy, but by allowing, by prior written agreement, his or her work to become part of the compilation, grants a non-exclusive, royalty-free, non- transferable, worldwide license to CWI to use and reproduce his/her contribution for its own educational and administrative purposes.

Works Created by Students

CWI encourages students to produce intellectual property directly related to course assignments or academic endeavors in their chosen field of study. The copyright to student work produced by a registered student on their own initiative and at their own expense or with only “nominal use” of CWI resources, produced outside any CWI employment, and which is not a sponsored or commissioned work, shall be owned by the creator. CWI shall retain the rights to work created by CWI students within the scope of employment at CWI, work commissioned by CWI, and work created with “substantial use” of CWI resources.

The ownership of student works submitted in fulfillment of course requirements or other academic endeavors in their chosen field shall remain with the creator(s), unless provided otherwise by this Policy or a written agreement. By enrolling in classes offered by CWI, the student gives CWI license to mark on, modify, and retain the work as needed for its instructional and administrative purposes, or otherwise handle the work as set forth in this Policy.

Students must obtain prior written approval from CWI before making “substantial use” of CWI resources. Students must submit a proposal setting forth the type and amount of CWI resources required, ownership and allocation of copyrights, and apportioning the benefits from any commercialization of the work.

Students working collaboratively with CWI employees on projects that result in Works or other intellectual property may be granted co-ownership rights to the Work, if the work qualifies as Joint Work. Unless the student’s contribution constitutes Work for Hire, faculty and staff shall require students to complete a written transfer or assignment of copyright before any student contribution is made to a CWI-owned Work.

Students shall adhere to copyright and intellectual property laws and regulations. Faculty, staff, and other students may not use any student-owned work without the written consent of the creator(s).

External Use and/or Distribution

Distribution external to CWI may occur either through direct rental, sale, licensing or distribution by CWI or its designee, or through commercial rental, sale, licensing, or distribution by a third party under an agreement for payment of royalties.

Unless otherwise provided in a written agreement between CWI and the creator(s), CWI shall not use and/or distribute Individually-Supported Works.

In the case of Work for Hire and materials created with “substantial use” of CWI resources, CWI may exercise all rights under copyright and intellectual property laws, including external use and distribution. In the case of “commissioned” works, external use and/or distribution of intellectual property shall be preceded by a written agreement between CWI and the creator(s). Unless otherwise provided in a written agreement between CWI and the creator(s), CWI shall not have the right for external use and/or distribution of materials created with “nominal use” of CWI resources.

Ownership and use of intellectual property sponsored by outside agencies is controlled by the terms of the written agreement.

Right to Revise and Update

As long as the faculty author is employed by CWI, he or she shall be given “first refusal” rights in making or supervising the revision of instructional materials and distance learning coursework owned by CWI, or at least the right to be consulted in good faith on revisions.

CWI may, at its sole discretion, release its ownership rights in Works to the creator(s) or others. Such release of ownership rights must be contingent on the agreement of the creator(s) that no further effort on, or development of, the work will be made with “substantial use” of CWI resources and that CWI is granted a perpetual, royalty- free, non-exclusive, non-transferable, worldwide license to use and reproduce the work for its own educational and administrative purposes. The transfer must be approved by CWI’s President and secured by an assignment agreement.

If the copyright is held by the creator(s), it is possible for the individual(s) to transfer or assign the copyright, or a more limited license, to CWI or to a third party. Assignment of copyright to CWI must be reflected in a signed document.

CWI may reasonably request that faculty members, when entering into agreements granting the copyright or publishing rights to a third party, make efforts to reserve to CWI a perpetual, royalty-free, non-exclusive, non-transferable worldwide license to use and reproduce the work for its own internal educational and administrative purposes.

Electronically Published Course Materials

Faculty members shall own and receive all royalties that may accrue from the commercialization of electronically published course materials that are created independently or with “nominal use” of CWI resources. Ownership of copyright resides with CWI in case of Work for Hire, works created with “substantial use” of CWI resources, sponsored works, or when a written agreement between the creator(s) and CWI provides for assignment of ownership to CWI.

Electronically published course materials created jointly by faculty authors and others, whose contributions are commissioned as Work for Hire, will be jointly owned by the faculty author(s) and CWI. Any owner of copyright in electronically published course materials may secure copyright registration.

Faculty members normally retain the right to update, edit or otherwise revise electronically-developed course materials that become out of date. If CWI believes a revision is necessary and no timely revision is made or, in CWI’s opinion, a revision that is made does not maintain academic standards, CWI may refuse to market the product, or may employ another person to update the work.

Distance Education

The TEACH Act significantly enhanced digital distance education by expanding the scope of faculty members’ rights to perform and display works and to make copies integral to those performances. CWI faculty who teach in distance learning environments shall familiarize themselves with the provisions and requirements of the TEACH Act, know when they can take advantage of the protections offered by the Act, when they can rely on the Fair Use doctrine, and when they need to secure appropriate licenses or written permissions. Faculty members also need to be aware of the provisions of other statutes that may apply to their activities and special circumstances, such as the Digital Millennium Copyright Act (DMCA) or other applicable law.

Recording and Re-transmission/Re-Broadcasting of Courses

Any videotaping, recording, broadcasting, or televising of classroom, laboratory or other instructional activity, and any associated use equipment or media must be approved in advance by the appropriate administrators, who shall determine the conditions under which such activity may occur. All such activities shall have the prior knowledge and consent of the faculty member and must comply with the provisions of applicable federal and state privacy laws, including right of publicity laws. Student recordings for personal use and/or accessibility accommodations do not require approval from administrators. Faculty permission is sufficient.

Recordings that permanently fix the classroom experience in tangible form (regardless of the media in which these materials were created), including but not limited to recordings of classroom lectures and discussions, and multimedia materials that incorporate the contributions of students, will not be made, reproduced, or distributed without the permission of faculty and student participants obtained with a Permission Request Form.

Copyright ownership and title of recordings of courses and course presentations shall belong to the faculty member(s), unless:

• the creation or recording process involved “substantial use” of CWI resources;
• the material qualifies as Work for Hire; or
• a written agreement between the faculty member(s) and CWI provides otherwise.

No permission is needed from a student for their image or voice to be transmitted live via videoconference or streaming media, but all students should be informed when courses are to be conducted using either method of delivery. If images are to be used for marketing purposes to the broader community, students will be asked to sign a photo release. CWI reserves the right to retain and use recordings of a class or some portions/sessions in future course offerings.