Intellectual Property Policy and Procedure for Harper College Employees

PURPOSE

This procedure is established to provide the College and College employees with general guidelines to follow regarding issues of Copyright and Intellectual Property. Any questions regarding this procedure should be directed to the appropriate designated union representative or to the Vice President of Administrative Services (VPAS).

OWNERSHIP

A member of Harper College who creates Intellectual Property on his/her own time without the use of substantial College resources or College financial support retains full ownership and revenue rights with respect to such work(s).

The College shall not claim ownership of a work unless the work falls within the scope of employment or is commissioned by the College (see Works Made for Hire).

The College does not claim ownership of works that may be considered as falling within the scope of employment but have traditionally been recognized as belonging to originating faculty. These include theses or dissertations; books, articles, or similar works; and course materials such as but not restrict to syllabi, lecture notes, assignments, problem sets, and exams.

The College does claim ownership of course outlines, Blackboard course shells, and works that employees have produced as members of College committees.

The College shall not claim ownership of Intellectual Property created on an employee's own time unless substantial College resources and/or College financial support is used in the creation, development, or production of the work. Works created with extensive use of the resources of the Department of Instructional Technology (DoIT), for example, require an Agreement prior to project initiation. Works created at the employee's will and initiative on his/her own time, but with College financial support (e.g., paid sabbatical, special project grant, fellowship, etc.) also require an Agreement prior to project commencement. Without said Agreement, ownership will default to 50% College owned and 50% employee owned. (Use of students in classrooms to test out materials or inventions will not be considered College support.)

If interested in ownership, a member of Harper College who plans to undertake a project to develop Intellectual Property using substantial College resources and/or College financial support must inform the Office of the VPAS or designated union representative prior to the commencement of the project. Advance notice is required to allow sufficient time for drafting an Ownership Agreement, defining and providing legal protection for the work and the rights of the member and the College.

Any disputes between the member and the College shall be resolved pursuant to the grievance procedures contained in the contract governing each member's employment at the College. In this process, the parties may call upon the services of an expert in copyright and intellectual property law and practice.

In the absence of an Agreement, ownership would default to 50% College owned and 50% employee owned and equity would be distributed as described under Revenue Distribution.

For works completed prior to the enactment of this policy, ownership will be assigned according to the Board-approved Copyrights and Patents Manual of January 25, 1990. If applicable, equity will be distributed as described in that document.

JOINT OWNERSHIP

 It is strongly recommended that members of Harper College working jointly on an Intellectual Property project enter into an Agreement with the other persons on the issues of ownership and related rights. This would include entering into an Agreement when the creator plans to make extensive use of College services such as those provided by the DoIT.

RESPONSIBILITIES OF OWNERSHIP

The copyright owner is responsible for protecting the work against infringement and may decide to register the copyright with the Library of Congress at www.copyright.gov as part of such protection. The copyright owner is also responsible for obtaining appropriate written releases for any materials used in the production of the work.

SHARING

Harper does not view becoming a publisher or distributor of created materials for profit as part of its mission. Employees looking for such services should not expect Harper to be a provider.

Property rights may be shared by the College with other entities, as defined by the Agreement. Requests to utilize property rights of which the creator is partial owner or non-owner will be handled through a licensing agreement. Licensing agreements with other educational institutions or nonprofits may be at no cost.

The licensing agreement will include the following:

  • a provision on the issue of ownership of the work;
  • a provision on attribution of the work;
  • a license provision specifying uses that may be made out of said work, including if and how it can be maintained, updated, or serve as the basis for derivative works;
  • a Harper point of contact;
  • a disclaimer on copyright clearances "shared as is";
  • any limits; and
  • a perpetual, no-cost, worldwide, nonexclusive license for the College to use, maintain, update, and prepare derivative works from the licensed works for use in the teaching and learning activities of the College.

REVENUE DISTRIBUTION

Net income resulting from Intellectual Property developed with substantial College resources and/or College financial support and to which thus the College claims full or partial ownership shall be divided among the creators of said property and the College. Such allocation shall be specified in the Agreement referred to above, reflecting the nature, degree, and source of support for the project, and the importance of amply rewarding creativity. In general, net income resulting from said Intellectual Property will be allocated among the creator(s) and the College as follows:

  • 50% to the creator(s) and
  • 50% to the College.

These allocations are general guidelines only. The Agreement will dictate the division and allocation of revenues arising from the Intellectual Property developed, based on the nature of the project, resources to be used, the parties involved, and funding advanced, if any.

ADDITIONAL CIRCUMSTANCES NEEDING AN AGREEMENT

Ownership, revenue, and use rights in works created by a member of Harper College as part of a project funded by an external entity, such as a state or federal grant, or a grant from a private foundation or agency, shall be expressly defined in the grant documents. If the grant documents do not include such provisions, the College and the member will enter into an Agreement, prior to the commencement of the project, defining such rights.

Rights in works created by a member of Harper College (normally, full-time employees) as part of a project funded by the College (e.g., sabbatical leave, special project grant, or released-time assignment) will be defined by an Agreement between the member and the College prior to the commencement of the project.

Rights in works created by a member of Harper College (normally, adjuncts) that are commissioned by the College or produced with substantial College resources or with College financial support (e.g., in the form of overloads or stipends) may be shared by the College with the member as defined by an Agreement between the member and the College.

In each case, the Agreement will include the following:

  • a provision on the issues of ownership and use of the work and
  • a provision on the issue of revenues arising from the work.

Without said Agreement, ownership would default to 50% College owned and 50% employee owned; equity would be distributed as described under Revenue Distribution.

DEFINITIONS

Commissioned Work: Specially ordered work.

Exclusive License: When the copyrighted work in question is not governed by any other licensing agreements. Under the 1976 Copyright Act, an exclusive license is considered an assignment of copyright ownership and is not valid unless it is in writing and signed by the copyright owner.

Intellectual Property: Includes physical manifestation of intellectual effort including inventions, discoveries, know-how, show-how, processes, unique materials, original data, and other creative or artistic works that have value. Also includes works of authorship, inventions, and discoveries that may be subject to protection by patents, copyrights, trademarks, service marks, and trade secrets. Includes, without limitation, books, texts, articles, monographs, glossaries, bibliographies, study guides, laboratory manuals, syllabi, tests and workpapers, lectures, musical compositions, dramatic compositions, unpublished scripts, films, filmstrips, charts, transparencies or other visual aids, video and audio tapes and cassettes, computer programs, live video and audio broadcasts, computerized and computer-assisted instructional materials, Internet course content, programmed instructional materials, multimedia instructional materials, processes and methodologies, drawings, paintings, sculptures, photographs, and other works of art.

License: Permission granted by the owner of Intellectual Property to a licensee to do something that, without the license, would not be allowable.

Nonexclusive License: When a license allows another person to use the copyrighted work in a manner specified by the copyright owner, but does not assign any exclusive rights. Nonexclusive licenses are not considered an assignment of ownership and need not be in writing.

Resources Usually and Customarily Provided: Includes such support as office space, library facilities, ordinary access to computers and networks, or salary. In general, it does not include use of employees as support staff to develop the work, or substantial use of specialized or unique facilities and equipment, or other special subventions provided by the College. The understanding of what resources are usually and customarily provided (especially the resources referred to by the phrase "ordinary access to computers and networks") changes over time.

Result of College Financial Support: Includes work done on sabbatical, special projects, or reassigned time.

Scope of Employment: Work that an employee is hired to perform, occurring substantially within authorized time and space limits and actuated, at least in part, by a purpose to serve the College.

Substantial College Resources: Resources beyond what is usually and customarily provided to members of Harper. This includes extensive use of College time, staff, equipment, laboratories, physical plant, or other resources.

Works Made for Hire: As defined in §101 of the 1976 Copyright Act, "(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a 'supplementary work' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an 'instructional text' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."