Intellectual Property

      OWNERSHIP OF INTELLECTUAL PROPERTY IN  TECHNOLOGY-ENHANCED COURSES

 Ownership of technology-enhanced courses.

1. Applicability. The policy presented in this section is intended to apply only to the electronic or recorded components of technology-enhanced courses, including materials created for display in technology-enabled classrooms, videotapes created in the context of ITV classes, and electronic material used in web-based or web-enhanced courses. It is neutral with respect to ownership of any other type of intellectual property, including published material or patentable inventions, and cannot be relied upon as an analogy for interpreting or understanding other policies or claims of ownership in other kinds of property.
2. Limitations of policy. Ownership of course materials is governed by copyright law, and cannot be assigned by a policy document. The policy described here represents the University’s standard position on these matters, but cannot be considered as a blanket statement on ownership of course materials. Existing law concerning ownership is open to multiple interpretations. In general, clarity can only be obtained by having all interested parties sign a contract in which course ownership and rights to course material are explicitly described. Course developers are encouraged to become familiar with the issues concerning intellectual property.
3. The “General Case” vs. the “Extraordinary Case”. Most courses making use of educational technology are developed at the instructor’s initiative, for use in a single-section course. Such courses are considered “The General Case” and fall into this category if all of the following conditions apply: 1) the course developer(s) is/are the sole instructor(s) of the course; 2) the course development effort has been largely initiated by the instructor / developer; 3) the course material will not be used by another instructor; 4) the faculty and students in the course will continue to meet regularly in a traditional (not ITV) classroom, and cannot be considered a “web-based” or “distance learning” class; 5) the faculty member will not receive additional compensation or research assistance from the University (grant from or through the University, stipend, course release) for the course development; 6) the Office of Educational Technology will have minimal involvement in the development of the course. The “Extraordinary case” is presumed to apply if any of the above criteria are not met.
4. Situations in which faculty are presumed to have sole ownership of a course. The University’s policy is that if the “General Case” outlined in 3 applies, then the course developer is considered by the University to be the owner of the course. In all other cases ownership must be negotiated and formalized by contract. Course developers should understand that according to copyright law, copyrightable material created as part of an individual’s normal work responsibilities is considered to be “work for hire”, and therefore owned by the employer. Based upon old case law, some judges refused to classify as works-for-hire material created by professors, like textbooks and articles in their discipline. As the differences between traditional print materials and electronic materials (used, for example, in distance learning courses) become more apparent to judges, the so-called “teacher exception” to the work-for-hire principle will continue to weaken. However these legal concepts may develop, the University’s present policy is that courses developed under the “General Case” remain the property of the course developer. Whatever the ownership rights, the University has certain residual usage rights described below in 8.
5. Who must sign a contract. If a course developer falls under the provisions for “Extraordinary Case” listed in 3, a contract must be signed in which the rights of the faculty course developer and the rights of the University are explicitly described. Ownership rights are not “all or none”, and can be “unbundled” so that faculty course developer’s interests and the University’s interests are both protected (refer to section E2, below).
6. Other circumstances in which a contract is desirable. Course developers falling into the “General Case” outlined in 3 are not required to sign a contract concerning course ownership and rights. However, if the course developer anticipates that the course may be of commercial value, he or she is encouraged to sign a contract with the University to reduce the likelihood that disputes will arise at a later date.
7. Course materials created prior to the adoption of this policy. This policy applies to course materials developed subsequent to the adoption of the policy. However, those who have created course materials prior to the adoption of the policy may look to the policy for the University’s general position on ownership of intellectual property as it relates to course materials. If a previously created class falls into the “General Case”, the course developer is assumed to have sole ownership. If the course materials fall into the “Extraordinary case” but no contract has been signed, and a dispute concerning ownership or other rights arises, the course developer is encouraged to negotiate a solution with the University according to the premises presented in this policy. However the policy cannot supercede relevant copyright laws in the absence of a contract.
8. Impact of faculty compensation on copyright. If a faculty member is compensated for course development above and beyond his or her normal salary (e.g. via payment of a stipend or grant, or course release time), then the course developer will be legally considered to be an “outside contractor,” as the work is considered to be outside of the normal scope of the course developer’s work duties. In these cases, the product will be considered a “work for hire” with the university as owner. A faculty member may want to negotiate special contractual provisions as described below in E2.
9. Rights that the University always maintains. Regardless of ownership of the course, the University shall be permitted to use course material and assessments for internal instructional, educational, and administrative purposes, including satisfying requests of accreditation agencies for faculty-authored syllabi and course descriptions. These rights will be explicitly included in any contracts pertaining to ownership of course materials. If there is no contract, the foregoing rights will be deemed to apply as a matter of University policy and condition of the faculty member’s employment. If a course developer is the sole owner and wishes to transfer ownership rights to a third person, the developer must, as a condition of the transfer, require the transferee to grant the University the foregoing right for no consideration. The University will retain the foregoing rights should the course developer leave the University’s employ; and, in that case, the University may non-exclusively create derivative works from the course material with no compensation payable to the developer or his chain of transferees.
10. Tracking copyright violators. Course owners retain the sole responsibility for tracking copyright violations and prosecuting individuals misusing their course materials. In those cases in which the University and the course developer are co-owners, both parties shall decide what are the appropriate steps in enforcing their rights and how to allocate the costs. In those cases in which he or she shares in the income derived from the materials, an amount proportionate to his or her share of the University’s cost in enforcing its rights shall be charged to the faculty member.
11. Registration with the U.S. Copyright Office. If the course developer is also the course owner, he or she is urged to register the course materials with the United States Copyright Office. While such registration is not necessary, generally it makes prosecution of violators easier to pursue. If the University is the course owner, the course materials will be initially submitted for registration at the United States Copyright Office.

    Content of copyright contracts.

1. “Unbundling” of rights. Contracts will be written such that various rights to the intellectual property are “unbundled.” This means that ownership is not all-or-none, but that rights may be assigned to best meet the needs of the University and faculty course developers. Even though each situation depends on its particular circumstances, contracts will always include the provisions listed below. It is generally the case that contracts can be written to satisfy both faculty and University needs.
2. How a contract may assign specific rights. Contracts may assign ownership to the course developer(s), the University, or joint ownership may be specified. Regardless of ownership of the course, contracts may also assign specific rights to some or all parties to the contract as described below. These rights may include the right to re-use, revise, or re-distribute the course materials, or sell or license the course materials to a third party. Contracts may assign rights to royalties resulting from future commercial use of the course material to the University, the course developer(s), or both. Such contracts must be negotiated by all parties, and written with the assistance of University Counsel, as may be appropriate. Several standard contracts will be available, but customized contracts can also be written under special circumstances.
3. Ownership of copyright. Contracts will typically assign ownership of copyright to the University, with specific rights assigned to the instructor as described below.
4. Portability of course materials. Course developer(s) will generally be allowed to take course materials with them if they leave full-time employment at FDU and move to another university full-time, and teach using these materials at the new university. This provision applies only to the course content, and not the courseware software or space on servers owned or leased by the University. This right may not apply to courses that are developed with the use of significant University resources, or unique to the mission and character of the program or Fairleigh Dickinson University. In some of these cases instructors may be permitted to take the course to a different university if the other university pays a licensing fee. The portability of the course materials or lack thereof will be explicitly assigned by contract. These portability rights cannot be transferred by the course developer.
5. Right of first refusal to teach. Course developer(s) will generally have the right of first refusal to teach the course in subsequent terms. Such provisions will include the following conditions: 1) the right will hold only if the course developer is still employed by the University; 2) the right will hold only if the University deems that there is adequate demand for the course and it can be scheduled at the University’s convenience; 3) the right will not hold if the department or school’s staffing needs are clearly better served by having somebody else teach the course, and having the course developer teach the course would cause unnecessary hardship to the department; 4) the right only applies while the course materials remain essentially unchanged. In the event of a major course or curriculum re-design, the right will no longer apply.
6. Right of first refusal to update course materials. The course developer may wish to negotiate a right of first refusal to update or otherwise to improve the course materials, either for a share of the profits or for a stipulated amount. Such right will apply only while the course developer is still employed by the University, and will not apply to major course or curriculum re-designs.
7. Developer’s scholarly rights. Course developers will be given the right to use intellectual content from courses taught at FDU in scholarly contributions to books, articles, conventional courses, seminars, lectures, and similar scholarly activities in print and in person. These rights will be explicitly included in each contract.
8. Licensing rights. The University will generally maintain the right to commercialize and license courses falling under the “Extraordinary Case.” In the event that the University fails to commercialize or license such courses according to a mutually agreed schedule, such rights may revert to the course developer(s). A section concerning licensing rights will appear in each contract.
9. Sharing of profits. The course developer(s) may negotiate for a share of the profits in the event that the University licenses a course to a third party (e.g. other educational institutions, publishers, distributors, information providers, scholarly societies, corporations, and other commercial or non-profit entities). If such provision is included in a contract, the amount of compensation he or she received for developing the materials will first have to be recaptured by the University (with, as appropriate, an overhead factor). A section concerning profit sharing will be appear in each contract.

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