Appendix 18
Intellectual Property and Copyright Policy: Course Materials

Purposes

The purpose of the following policy is to provide guidelines to protect traditions regarding ownership of course materials. This document provides SCSU's policy on the use, distribution, and protection of the ownership of course materials, including electronic products and the like, under applicable state and federal intellectual property laws.

Principles

The SCSU community seeks to encourage SCSU faculty and professional staff to experiment and innovate with new technologies in their primary assignments. Encouraging experimentation and innovation requires a university commitment to provide a technological environment that includes adequate or basic support for typical teaching, scholarly, creative, and research conditions.

Even though most faculty develop and construct courses as their primary assignment, practice has it that faculty own intellectual property rights for course materials they create. According to academic tradition, faculty members who write textbooks that arise from courses taught as part of their primary assignment have complete intellectual property rights, not only to the course materials but also to the textbook. The new electronic publishing technologies have not changed these basic rights and practices.

Sometimes teaching and "publishing" conditions require both extraordinary support from the university and infrastructure resources, such as reassigned time, specialized and significant servers and technical support, and so on. Such extraordinary support and resources often incur additional costs. The university community does not want to inhibit faculty from working with costly technologies, but we also recognize both the need and the cost of maintaining adequate support and infrastructure for all faculty on campus.

(The current IFO Agreement, Article 27, Sec. C., Subd. 4, "Patents and Intellectual Property," addresses some of these principles very much the way we do here, although it does not address the question of course materials or electronic technologies (initiated 1 July 1997). Where possible we use the language already agreed on.)

We distinguish, then, between ordinary and extraordinary conditions.

Ordinary Conditions

"Ordinary" conditions are those in which faculty and staff use new technologies as part of their load and the income to the university is the kind of tuition ordinarily collected. Under ordinary conditions, faculty and staff can expect (to the best funding abilities of their units

• that they retain intellectual property rights for their traditionally and electronically published works
• productivity hardware and software that meet TLTR-established minimum standards
• space on university-supported servers for email and instructional Web sites
• access to the World-wide Web
• basic support

Under ordinary conditions, the faculty member who designs a course is the instructor.

Signifying Ownership When the University Has Course Materials Posted

When the administration requires faculty course materials to be posted to password-protected or non-password-protected Web sites, these course materials need to include a statement naming the faculty member who created the course materials as the owner of the copyright and intellectual property rights.

Extraordinary Conditions

Extraordinary conditions exist when there is activity outside of the normal professional workload or technology and technical support beyond that accepted as part of ordinary or typical resources. Such workload may be characterized by its activity beyond the primary duty assignment, be completed on the individual professional's own time, or generate income. Conditions may be extraordinary if one or more of the following conditions is true:

• University employees require the direct and substantial attention of specialized technical support.
• University employees require technological resources beyond that defined as basic support.
• University employees' assignment extends beyond the contractually defined assignment or load.
• University employees are granted major reassignment, release time or grants for creating course materials or with the expectation that patentable information or product will result.
• Increased tuition is charged for electronically delivered instruction (see Key Term, below).
• The faculty member who designs a course is not the instructor. The designer of the course (see Key Terms, below) retains intellectual property rights for the course, including control of content and course materials. A faculty member or group of faculty may choose to locate ownership of a course in a department or committee.

Under extraordinary conditions, faculty members and the University may share ownership of course materials.

Extraordinary conditions exist when financial benefits accrue, for example, additional tuition or royalty income is charged. (See "Key Terms," below.)

Shared Ownership

Shared ownership will be defined in an agreement between the faculty member(s) and the University, which might be represented by the department, the dean, the Office of Sponsored Programs, or any other unit significantly involved in providing extraordinary support. This shared ownership agreement must be signed before the project is formally initiated. The agreement must follow the general outlines set out in this Intellectual Property and Copyright Policy (Please see "University" and "shared ownership agreement," below.)

Here are questions for determining shared ownership:

1. Do extraordinary conditions exist?
2. If so, which of the factors listed above trigger shared ownership?
3. To what degree have the faculty member(s) and the University provided resources?
4. The degree may be translated into a percentage.

The SCSU community recognizes that professionals who require extraordinary use of technological resources and support should share with the University some of the financial benefits that may accrue. Furthermore, we recognize that not all benefits are financial. Benefits may include but are not limited to

• public acknowledgement of expertise and support
• acknowledgement of activity in scholarly or professional development documentation (e.g., Article 22)
• public relations for the university
• financial (e.g., a portion of course fees)

When additional tuition makes conditions extraordinary or when royalty income needs to be shared because substantial University resources have been or will be required, the accrued financial benefits of a shared ownership will be negotiated on a sliding scale depending upon the degree to which extraordinary conditions have prevailed. (See "Extraordinary Conditions" for the list of factors that might trigger this designation.)

We, the university, commit to a process of negotiating agreements that invest back into the units providing the extraordinary support.

Key Terms

Additional tuition: tuition collected exceeding the normal tuition and fees charged to individuals. Additional tuition means that the University levies a surcharge that exceeds the normal tuition and fee rate charged for that or a like course.

Basic Support: This is technological and other support for primary assignments. Basic support includes but is not limited to

• copying of course materials, handouts, overheads, tests
• access to video equipment, overhead projectors, library research, etc., as well as the support defined as part of ordinary conditions
• training to use new technologies as they become available on campus (e.g., WebCT, maintaining course web pages)
• answering short-term queries about technology...

Contractually Defined Assignment (links to various contracts)

• Agreement between Minnesota State Colleges and Universities and Inter Faculty Organization Effective through June 30, 2001 (http://www.ifo.org/Contract01/table_of_contents.htm)
  Article 10: Workload (http://www.ifo.org/Contract01/article_10.htm)
  Article 22: Professional Development and Evaluation (http://www.ifo.org/Contract01/article_22.htm)

Designer of a Course: the faculty member(s) or department who designs course materials or other intellectual property or who publishes these materials with a print or other publishing technology.

Increased Tuition for Electronically Delivered Instruction: The University may choose under some conditions to charge increased tuition for electronically delivered instruction. Not all electronically delivered instruction will result in increased tuition.

Intellectual Property and Copyright: See Intellectual Property and Copyright Reading List, below, for a selection of Web sites that are useful for thinking about this issue.

Publishing: Nowadays writers and creators may publish traditionally (i.e., via an established publishing company) or they may disseminate their materials via the new electronic technologies (e.g., the Web, CD ROMs, authorware or courseware, etc.).

Shared ownership agreement: a memorandum of agreement or a contract between the developer and St. Cloud State University detailing the specific requirements and contributions of each party to ensure that the general conditions are met and that benefits, financial or otherwise, are disbursed appropriately.

University: might be represented by the department, the dean, or any administrative or academic unit significantly involved in the development of a project or course in which ownership is shared.

Intellectual Property and Copyright Reading List

The following list provides a selection of Web sites for information on copyright and intellectual property. Most include full-text commentary, policies, and guidelines for issues related to copyright and intellectual property as well as links to other Web resources. The links are listed alphabetically by university, then organization, then by commercial entity.

• Cornell University. Legal Information Institute. Copyright: An Overview. (http://www.law.cornell.edu/topics/copyright.html).
• Harvard Law School. Basic Intellectual Property Primers. (directory) (http://eon.law.harvard.ed /property/library/primerlib.html).
• IUPUI Copyright Management Center. (http://www.iupui.edu/~copyinfo/home.html).
• Stanford University. Copyright and Fair Use. (http://fairuse.stanford.edu/).
• University of California System. UC Copright Task Force
       Documents and Working Papers. (http://www.ucop.edu/acadinit/copyright/reports.html).
       UC Policies. (http://www.ucop.edu/acadinit/copyright/policies-studies.html).
• University of Maryland. Copyown. (http://www.inform.umd.edu/CompRes/NEThics/copyown/) (includes links to ownership policies of other institutions of higher education).
• University of Oregon. Copyright Law in the Digital World: Fair Use, Education and Libraries after CONFU. (http://oregon.uoregon.edu/~csundt/documents.htm).
• University of Texas System. Crash Course on Copyright. (http://www.utsystem.edu/ogc/intellectualproperty/cprtindx.htm). See also
       UT Systems, Office of the General Counsel. Intellectual Property.      (http://www.utsystem.edu/ogc/intellectualproperty/index.htm).
• Washington State University. Copyright Office. (http://www.publications.wsu.edu/copyright/copyright.html).
• AAUP Statement on Copyright. (http://www.aaup.org/spccopyr.htm). See also
       Richard Gorman. Intellectual Property: The Rights of Faculty as Creators and Users      (http://www.igc.apc.org/aaup/gorman.htm).
       David Noble (1997) Digital Diploma Mills (http://www.uwo.ca/uwofa/articles/noble.html).
       --- (1998) Digital Diploma Mills, Part 2 (http://www.uwo.ca/uwofa/articles/di_dip_2.html).
• Association of Research Libraries. Digital Millenium Copyright Act: Status and Analysis. (http://www.arl.org/info/frn/copy/dmca.html).
• CETUS. Fair Use of Copyrighted Works. (http://www.cetus.org/fairindex.html).
• Digital Dilemma: Intellectual Property. D-Lib Magazine, Dec. 1999 (online at http://www.dlib.org/dlib/december99/12gladney.html). This is a synopsis of The Digital Dilemma: Intellectual Property in the Information Age published by NAS and available in a pre-publication form (http://www4.nas.edu/cpsma/cstbweb.nsf/86e5876b3bf8be848525631f00688fc5/760c39d69552dcd88525681e004d52ec?OpenDocument).
• Educause. What Colleges and Universities Need to Know about the Digital Millenium Copyright Act. (http://www.educause.edu/ir/library/html/cem9913.html).
• EFF. Intellectual Property Law Primer for Multimedia and Web Developers. (http://www.eff.org/pub/CAF/law/multimedia-handbook).
• Copyright Clearance Center. (http://www.copyright.com/Resources/default.html).
• Copyright Website. (http://www.benedict.com/contents.htm).