East
Carolina University Faculty Manual
PART
VII.
RESEARCH
INFORMATION
A. Introduction
East Carolina University (hereinafter referred to as
“the University”) has among its primary purposes teaching, research, and the
expansion and dissemination of knowledge.
Products of these endeavors include development and use of copyrightable
materials. The creation of
copyrightable materials in the form of literary, dramatic, and other intellectual
works by the University community is encouraged as a measure of productivity
and commitment to the dissemination of knowledge and creative activity for
public benefit. It is the policy of
this University that its faculty, staff, and students carry out their scholarly
work in an open and free atmosphere that encourages publication without
constraint, consistent with applicable laws and University policy. The Copyright Policy contained herein is
consistent with the Copyright Use and Ownership Policy of the University of
North Carolina, enacted by the Board of Governors on November 10, 2000.
B. Scope and
Coverage
This Policy applies to the faculty, staff, and
students of the University. Compliance with
the terms of this Policy is a condition of employment for University faculty
and staff, and of enrollment for University students. This Policy is supplemental to the Copyright Use and Ownership
Policy of the University of North Carolina, and is subject to any applicable
laws and regulations and to specific provisions in grants or contracts that
govern rights in copyrighted works created in connection with sponsored
research.
C. Definitions
Author or Creator: Someone who originates or contributes
copyrightable expression such as poetry, prose, computer programming, artwork,
musical notation, recorded music, animations, video footage, web pages,
architectural drawing, and photographs.
Copyright License: Written permission to use copyrighted
material that is usually limited to a period of time and/or for a particular
use.
Directed Works: Works that are specifically funded or
created at the direction of the University, and which may or may not include
exceptional use of University resources.
Derivative Works: Works based upon and substantially similar
to a pre-existing work, that would infringe the pre-existing work without a
license from the author of the pre-existing work.
EPA Non-Faculty
Employee: Employees designated as
exempt from the North Carolina State Personnel Act who hold an approved
administrative or non-teaching position.
Exceptional
Use of University Resources:
Resources/Support provided by the University for the creation of a work
that is of a degree or nature not routinely made available to University
employees. An example of exceptional
use would be the use of support staff for graphics design, or computer
programming, that is not normally provided to University employees. Ordinary use of computers, FAX machines,
laboratory space, libraries, office space or equipment, secretarial services at
routine levels, telephones, and other informational resources, such as the
virtual reality system or other special computing equipment, shall not be
considered exceptional use of University resources. Whether an individual work
has been created through exceptional University resources shall be determined
initially by the chair or director of the department in which the creator has
principally been involved or from which he or she has received resources to
fund the work, taking into account the nature and amount of resources
customarily made available to faculty or staff in that department. At the time that exceptional resources are
approved, the unit administrator of that particular area of research shall
inform that faculty member.
Faculty: Employees designated as exempt from the
North Carolina State Personnel Act (EPA Employee) who hold one of the
professorial ranks of instructor, assistant professor, associate professor, or
professor, or whose title is lecturer, visiting professor, adjunct professor,
research associate professor, post doctoral fellow or the like.
Fair Use: A use of copyrighted material for purposes
of criticism, comment, news reporting, teaching, scholarship, or research,
which is not an infringement of a copyright.
Fair Use is further discussed in Section IV of this document.
Publication: The public distribution of copies of a work
or the original work by sale or other transfer of ownership, including rental,
lease or loan.
Royalty: A payment made to the owner of a
copyrightable work for use of the work.
SPA Staff: Employees designated by the North Carolina
State Personnel Act who generally perform a support role for the University.
Shop Right: A non-exclusive, non-transferable,
royalty-free right to use a copyrightable work for educational or research
purposes.
Sponsored Work: Funds supplied under a contract, grant, or
other arrangement between the University and a third party, including a
sponsored research agreement.
Student: Any individual currently enrolled in the
University or its extension programs in undergraduate, graduate or other
academic classes. Teaching, research
and graduate assistants are included for the purposes of this Copyright Policy.
Student Works: Papers, computer programs, theses,
dissertations, artistic and musical works, and other creative works made by
students.
Works for Hire: A work prepared by an employee within the
scope of his or her employment or a work specifically commissioned where the
contractual agreement clearly specifies the work shall be considered a work
made for hire.
1. Appropriate Use of Copyrighted Works
The Copyright Act of 1976, as
amended (Title 17, U.S. Code), generally protects certain rights and privileges
of the copyright owner to exclude others from the right to reproduce and publicly
distribute, display or perform a work, as well as revise or prepare a
derivative work based upon a copyrighted work, without obtaining
permission. As an institution devoted
to the creation, discovery and dissemination of knowledge, the University
supports the responsible, good faith exercise of full fair use rights contained
in the Copyright Act.
2. Fair Use
The “fair use doctrine” of
the Copyright Act allows certain statutory exemptions applicable to academia,
recognizing the fundamental non-profit mission of universities to advance and
disseminate knowledge for public benefit.
a. Elements of Fair Use
Individuals
from the University community who wish to make fair use of a copyright work
must consider in advance four statutory factors:
i. Purpose
and Character of the Use
The purpose and character of the use, including
whether the use is of a commercial nature or for non-profit educational
purposes.
ii. Nature of
the Work
The characteristics of the work being used,
including whether it has been previously published and whether it is factual or
fictional.
iii. Amount of
Work to be Used
The amount, substantiality and qualitative nature of
the portion used in relation to the entire copyrighted work.
iv. Effect on
the Market
The
effect of the use on the potential market for or value of the work.
The University Copyright
Committee, together with the Office of the University Attorney, shall issue
and, as necessary, revise guidelines to assist University faculty, EPA
non-faculty employees, SPA staff employees, and students in making fair use
evaluations. The Chancellor shall also
maintain copyright and fair use resources at the ECU libraries. The Copyright Management Officer shall
advise faculty, EPA-non-faculty employees, SPA employees and students regarding
fair use determinations pursuant to Section VI.B. hereinafter.
E. Copyright Ownership
Ownership of copyright in copyrighted works shall
depend on the category of the work in question and its creator.
The ownership of traditional or non-directed works
shall remain with the creator except in the following circumstances:
a. Directed Works
... Ownership of directed works shall remain with the
University and the creator shall retain a shop right for use of the work. Upon written agreement between the
University and the creator, the University may release or transfer its rights
in the work to the creator provided, however, the University maintains a shop
right to use of the work. Expense
reimbursement and income sharing with the University shall be considered.
b. Works Involving Exceptional Use of Institutional Resources
Ownership shall remain with the University except,
upon written agreement between the University and the creator, the University
may release or transfer its rights in the work to the creator provided,
however, the University maintains a shop right for use of the work. Expense reimbursement and income sharing
with the University shall be considered.
c. Sponsored Works Requiring the University’s
Ownership
Ownership shall be decided in accordance
with the terms of the sponsored programs agreement with the University:
i. Institutional Ownership: In the case of institutional ownership,
provided there is no conflict with a
sponsored agreement, the University may:
1) Release
or transfer its right to the creator under an agreement with the creator;
2) Negotiate with the creator for joint ownership of the
work;
3) Require a shop right for the University’s use of the
work;
4) Require expense reimbursement upon commercialization
of the work; and/or
5) Require income sharing upom commercialization of the
work.
ii. Ownership Not Addressed in
Agreement: Provided the sponsored agreement does not expressly require copyright
ownership by the University or a third party, ownership shall remain with the
creator subject to disclosure to the University provided, however, the
University shall, if practical, be assigned a shop right for use of the work.
Works for hire made by SPA staff, working
within the scope of their employment, shall be owned by the University except
the University may enter into a written agreement in advance to transfer
copyright ownership to the SPA staff employee.
Works developed by independent contractors
shall be owned in accordance with the contract under which the work was
created. The University unit entering into
arrangements for work to be produced by an independent contractor shall insure
that the written contract specifies institutional ownership. Any exceptions shall be approved by the
appropriate Vice Chancellor or designee.
Students may produce works while carrying
out activities related to their enrollment at the institution or while employed
by the institution. Examples of student
works are papers, computer programs, theses, dissertations, artistic works, and
musical works. Copyright ownership of
student works shall remain with the student except in the following
circumstances:
a.
Sponsored or Externally
Contracted Works
Ownership
shall be in accordance with Section V.A.3. of this Copyright Policy, Sponsored
Works Requiring the University’s Ownership, hereinabove.
b. Works for
Hire
Student
works created in the course of employment with the University shall be
considered Works for Hire and shall be owned by the University.
c. Derivative
Works
The sale or commercial use of derivative
works without the express written permission of the author may violate the
copyright rights of the author.
Commercial exploitation of these materials (which may include faculty
lectures, notes from faculty lectures, syllabi, and other course materials)
without express written permission of the instructor may result in disciplinary
action in accordance with University policies.
5. Joint
Ownership
Copyright holders, including faculty, EPA non-faculty
employees, SPA staff employees and students may enter into written joint
ownership agreements with one another at their discretion, with the approval of
the Chancellor or his designee.
F. Administration
1. University Committee on Copyrights
The University Committee on Copyrights
is hereby established and shall have the responsibilities as the Chancellor may
specify, including but not limited to the following:
a.
Monitor trends in such
areas as institutional copyright use policies, changes in copyright ownership
models, and guidelines for fair use information;
b.
Identify areas in which
policy and guideline development or revisions are required, and make
recommendations to the Chancellor;
c. Cooperating with the administration to propose University policies
and guidelines regarding ownership and use of copyrighted or licensed scholarly
works;
d. Assist in identifying educational needs of the
faculty and others related to compliance with copyright policies and
guidelines, and advising on appropriate ways to address those needs; and
e. Under procedures specified herein, hearing and recommending
resolution of disputes involving copyright ownership.
The committee shall consist of 13 members:
representatives of the student body, EPA-non-teaching employees, SPA employees,
the libraries, the Office of the University Attorney, the Office of Technology
Transfer, the Copyright Management Officer, the Vice Chancellor for Research
and Graduate Studies or designee who shall chair the Copyright Committee, and
five faculty members who will be elected by the Faculty Senate. Student representatives shall serve for
one-year renewable terms. Other
representatives shall serve for three-year renewable terms.
a.
Assist in identifying
educational needs of the campus community related to compliance with copyright
policies and guidelines, and advising on appropriate ways to address those
needs;
b.
Serve as a member of
the University Committee on Copyrights.
Works subject to protection under both patent law and
copyright law shall be reviewed by the Office of Technology Transfer and the
University Committee on Intellectual Property/Patents. If the University elects to retain title to
its patent rights, the inventor/creator shall assign copyright and patent
rights to the University. The inventor/creator
shall be compensated in accordance with University policy.
4. Disclosure
to the University Committee on Intellectual Property/Patents
Whenever faculty, EPA non-faculty employees, SPA
staff or students of the University create copyrightable material which is or
may be owned by the University or a third party and which may also have
commercial application, a disclosure of the existence of the material should be
made, in writing, to the University Committee on Intellectual
Property/Patents. The written
disclosure should be made as soon as practical prior to or after creation of
the work.
1. Jurisdiction
Any University faculty, EPA
non-faculty employee, SPA staff employee, or student may seek resolution of a
dispute regarding fair use or copyright ownership of a work governed by this Copyright
Policy, including a dispute over whether use of University resources is an
exceptional use, by filing a written request with the Chair of the University
Committee on Copyrights, who shall appoint a 5-member panel to hear the dispute
with 3 panel members being selected from the elected faculty members of the
committee. Review of all matters
related to copyright shall fall under the exclusive jurisdiction of the
University Committee on Copyrights, subject to the normal appeal processes.
2. Conduct of the Hearing
In its discretion, the panel may elect to conduct a
hearing into the matters or may make a recommendation based upon the written
record, provided that all parties to the dispute are given an opportunity to
present evidence and arguments in support of their respective positions. The panel will make every effort to mediate
these matters prior to any hearing.
Each party shall provide the other party with a copy of any written
materials submitted to the panel simultaneously with submission of such
materials to the panel. Any hearing
will be conducted following procedures set forth in writing by the panel or
promulgated by the University Committee on Copyrights. No party shall have the right to be
represented by counsel before the panel, but any party may be accompanied at a
panel hearing by an advisor of his or her choosing, who shall not participate
in the hearing.
3. Disposition
Each panel shall report its written findings,
conclusions and recommendations for disposition of the matter to the
appropriate Vice Chancellor(s) on behalf of the Chancellor, within forty-five
days of appointment of the panel by the Chair of the University Committee on
Copyrights. The Chair of the Committee
may extend the time period of such report by not more than thirty days for good
and reasonable cause. Copies of such
findings, conclusions, and recommendations shall be provided to all
parties. Upon receipt of such findings,
conclusions, and recommendations, the appropriate Vice Chancellor(s) shall
issue a written decision in the matter.
The decision shall be final, subject to appeal rights under The Code
of the University of North Carolina.
Approved: Faculty
Senate Resolution #02-18, April 2002
ECU
Chancellor, May 8, 2002
Office
of the President, August 6, 2002